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INTRODUCTION Drinking and driving is the most common crime committed in Canada. It is also the greatest cause of criminal injury and death. In Prince Edward Island, 4762 drivers were charged with impaired driving between 1990 and 1999. The typical impaired driver who is stopped by the police is:
The laws about drinking and driving can be confusing. This pamphlet will explain these laws to you. It will also tell you about the procedures involved, and what may happen to you if you are found guilty of an offence involving alcohol and a motor vehicle. THE LEGAL CONSEQUENCES If you drink and drive, there are several possible legal consequences.
The Criminal Code contains several crimes involving drinking and driving. The police can lay the following criminal charges: Impaired driving It is an offence to drive, or have care or control of a motor vehicle, while your ability to drive is impaired by alcohol or any other drug. Impairment is shown by physical symptoms, such as slurred speech, bloodshot eyes, the smell of alcohol, unsteadiness on your feet or a lack of co-ordination. It may also be shown by the way you drive. The amount of alcohol or drugs in your system does not matter. You can be charged if it can be shown that you are impaired. You can even pass the Breathalyzer and still be charged. The police can lay this charge when a Breathalyzer instrument is not used, or when you are impaired because of other things, such as over-the-counter drugs, prescription drugs or illegal substances. The police often lay an impaired driving charge along with the charge of driving over the limit. Driving over the limit It is a crime to drive or have care or control of a motor vehicle while the level of alcohol in your blood is over the limit of .08. This is measured through tests of your breath by a Breathalyzer instrument, or by a blood test. These tests are described in more detail later in this brochure. You can't be forced to take a breath or blood test. You can refuse. However, refusal without a reasonable excuse is a crime with the same penalties as being over the limit. If a driver is under the age of 19 years or has had a license for less than 2 years, and a screening device shows a blood alcohol reading at any level, the driver will receive an immediate 24-hour roadside suspension. There will be an additional 90-day suspension from driving that takes effect 7 days after the offence. This is separate from any criminal charges that may also be laid. Refusal It is a crime to refuse a police officer's demand that you:
You do not have to take the Breathalyzer, other approved screening devices, or give a blood sample if you can show that you have a reasonable excuse for not doing so. For instance, you may have a severe health problem which won't permit you to blow. You will need medical evidence of your condition. Impaired or dangerous operation of a motor vehicle causing bodily harm or death These are both serious offences with heavier penalties. They are laid if your drinking and driving causes death or bodily harm to others. If the right circumstances exist, other serious charges can be laid, such as dangerous driving, manslaughter or criminal negligence. Driving while prohibited or while disqualified This charge is laid if you operate a motor vehicle while you are disqualified. You are disqualified when the judge orders a driving ban as part of your sentence at your trial. You are also disqualified when the province cancels your license after a conviction. A person convicted of driving while his or her licence is under cancellation for impaired driving will receive an additional six-month cancellation of their driver's license to be served at the expiry of the first cancellation. If you are arrested for impaired driving or for refusal to take a test when you are already disqualified for a similar conviction, the police will impound your vehicle. For a first offence, it will be impounded for 30 days; for a second offence within 2 years of the first, it will be imponded for 60 days. You will have to pay for storage and towing. APPLICATION OF THESE LAWS People often don't understand the way these drinking and driving laws work. Many people do not realize that the drinking and driving offences apply: All that needs to be shown is that you had "care" or "control" of the vehicle. Simply being in the driver's seat, or around your car with the keys in your pocket or purse, could mean the judge may find that you had care or control. It is no defence to say you were on private property, like a parking lot, driveway, or your own back yard. These laws cover all kinds of motor vehicles, such as a truck, motorcycle, snowmobile, all-terrain vehicle, moped, ride-on lawnmower, boat, or airplane. A motor vehicle is still a motor vehicle even if it is out of gas, the battery is dead or other mechanical failures have happened to it. APPROVED SCREENING DEVICE, BREATHALYZER AND BLOOD TESTS The Approved Screening Device The police may ask you to take an approved screening device test if you are operating a motor vehicle, or have care or control of it, and they reasonably suspect that you have alcohol in your body. The officer could get this reasonable suspicion from things like:
The police may ask you to take a Breathalyzer test if they believe on reasonable and probable grounds that within the last three hours:
If you are charged, the police usually give you a paper, called a "certificate of analysis by a qualified technician", showing the readings for each test. Keep this certificate in case you decide to contest the charge. The police will usually present their copy in court as evidence of the offence. Blood Test If a breath sample can't be taken for some reason (for example, after an accident involving an injury to the driver's mouth), the police can ask for a blood sample. The blood test must be done in a proper medical setting, must be done by or under the direction of a medical practitioner, and must be done only if it won't endanger your life or health. If there was an accident in which someone was injured or killed while you were drinking and driving, the police may get a warrant from a judge to order blood samples taken from you, even if you can't give your permission (for example, because you're unconscious). THE CHARTER You have rights given to you by the Charter of Rights and Freedoms. You have the right to talk to a lawyer before deciding whether to take the Breathalyzer test or to give a blood sample. The police officer must tell you about this right and about legal aid, and must make sure you understand this information. You must be given a chance to speak to a lawyer in private, usually on the phone. If you don't know a lawyer, look in the yellow pages of the telephone directory. Ask for help if you need it. The police must tell you if they lay charges, and what the charges are. You have the right to remain silent, and to talk to a lawyer before giving an oral or written statement to the police. You also have the right to refuse to give an oral or written statement. IF YOU ARE CHARGED The law says what procedures are to be followed by the police and the courts once you are charged with a crime. We are covering only part of this procedure to answer some basic questions you may have. For more information about procedures, contact CLIA or a lawyer. Release If charged, you are usually released, as long as you do not drive. Sometimes people are kept overnight if police believe they might drive or if they are too intoxicated to properly care for themselves. You can be kept in custody if the police think you may not show up in court, or may commit another crime, or if you can't be identified. If so, you will likely go before a judge or a Justice of the Peace within 24 hours for a decision or to schedule a hearing to decide whether you should stay in jail until your trial. If you are released, you will be given a notice to appear in Provincial Court at a particular place, time and date, usually several weeks later. Court If you plead guilty in court, the Crown Attorney will then tell the judge the facts that led to your charge. If the judge finds this shows you committed the offence, he or she will accept your guilty plea. This means you will be sentenced. This usually happens immediately. But if the judge orders a pre-sentence report prepared by a probation officer, you will be sentenced on another day. If you plead not guilty, a date is set for your trial, usually several weeks or months later. If the judge finds you not guilty at your trial, you are free to go. If you're found guilty at your trial, you are sentenced. Penalties There are penalties or consequences under both the provincial Highway Traffic Act and the federal Criminal Code of Canada. The Highway Traffic Act allows for:
Even first-time offenders are often sentenced to some time in jail, payment of a large fine and payment of a Victims of Crime surcharge. As well, the criminal court judge will issue an order prohibiting you from driving. If you drive when you are prohibited by the court, you may be charged with the additional crime of driving while prohibited. Criminal record Being convicted usually means you have a criminal record. After a certain period of time without getting into trouble with the law again, you can apply for a pardon. For information on pardons, contact CLIA or a parole/probation office. Help from a lawyer Although you don't need a lawyer to go to court, it's a good idea to get advice from a lawyer. You may want to do so before deciding how to plead. This pamphlet has not listed any of the defences you may have available to you, so you may need to consult a lawyer for this information. If you intend to plead not guilty, a lawyer can help you by handling your trial. It's also best to have a lawyer's help if you feel your rights under the Charter have been violated. If you don't know a lawyer, try the Lawyer Referral Service. If you can't afford a lawyer, you may qualify for legal aid. This office provides a lawyer for people charged with a criminal offence who have low incomes. Call the Legal Aid office in Charlottetown (368-6043) or Summerside (888-8219) to see if you qualify. YOUR DRIVER'S LICENSE Roadside Suspension Your driving privileges can be affected even before you are charged or convicted. Peace officers can issue a 24-hour "on-the-spot" roadside suspension of your driver's license if you blow a "warn" or "fail" on the approved screening device. If you are under 19 years of age or have held a license for less than 2 years, you can receive a roadside suspension for any blood alcohol reading on an approved screening device. Further consequences result if you get a drinking and driving conviction. Administrative Driving Prohibition Peace officers can suspend your driver's license for a period of 90 days if you fail or refuse a screening device. If you are under 19 years or have held a license for less than 2 years and show any blood alcohol count, you can receive the same 90 day driving suspension. This suspension takes effect 7 days after the offence takes place. A driving ban As part of your sentence, the judge will order you not to drive for a minimum of one year anywhere in Canada. This is called a driving ban or a driving prohibition. A person convicted of driving while his or her licence is under cancellation for impaired driving will receive a further six month cancellation to be served after the expiry of the first one. Losing your license Besides the driving ban, provincial law also cancels your driver's license for a drinking and driving conviction, and disqualifies you from getting a new license. If it's your first offence, you cannot re-apply for a driver's license for one year. You cannot re-apply for a license for three years for a second offence, and five years for three or more offences. If you are convicted in another province, territory, or state and a notice is sent to PEI, your license in PEI will also be cancelled. No exceptions are made to allow you to drive at special times or for employment purposes. Getting your license back You do not automatically get your driver's license back at the end of your cancellation. You must re-apply and pay a reinstatement fee. You also have to meet certain requirements, such as:
YOUR CAR INSURANCE A drinking and driving conviction affects your car insurance. If you have an accident while drinking, your insurance company may not pay for injuries to you or your passengers, or for damage to your vehicle. It will usually pay for injuries or property damage to others. Whether there was an accident or not, a conviction for drinking and driving means an increase in your car insurance premiums. The insurance company could refuse to insure you in the future. It is against the law to drive without insurance. The insurance consequences are the same for all drinking and driving offences. It is not true that the insurance company treats you more lightly if you are convicted for refusal. YOU COULD BE SUED If you are involved in drinking and driving, you can be sued for the damages suffered by others. If you have an accident You may be sued if you injure someone or cause property damage (like a wrecked car) in a car accident caused by your drinking and driving. If you're found responsible for the accident, the trial judge will order you to pay money as compensation to the injured people. If your insurance does not cover this amount, you will have to pay it yourself. For serving liquor If you serve alcohol to underage or intoxicated people who then injure themselves, they could sue you. Also, if they drive after you serve liquor to them and have an accident, the injured people could sue you, too. This applies not only to businesses (such as bars, clubs, and resorts) but also to people serving liquor to friends in their own homes. A SUMMARY As you can see, impaired driving or drinking and driving is treated very seriously by the legal system. The consequences of a conviction can affect your entire life. A short summary of the possible results would include:
Community Legal Information Association of PEI Inc. (CLIA) is a charitable organization that receives funding from Justice Canada, the Prince Edward Island Office of the Attorney General, the Law Foundation of PEI and other sources. CLIA provides Islanders with understandable and useful information about the law and the justice system in Prince Edward Island. For more information, you may telephone CLIA at 892-0853 or 1-800-240-9798. Charitable Registration Number: 118870757RR0001 ISBN: 0-921896-00-X Revised: January 2002 Non-commercial reproduction of this pamphlet is encouraged. |
