It is a criminal offence to operate a motor vehicle with a concentration of more than 80 mg of alcohol in 100 ml of blood, or a rate of 0.08.

This type of offence is an “objective” one: it doesn’t matter whether you were actually drunk or if your ability to drive was affected. It is an offence simply to have a concentration of alcohol in the blood that is over the legal limit.

To be found guilty of driving while impaired, a person must drive or have the care or control of a motor vehicle (a car, for example) while his ability to operate it is diminished by alcohol, a drug or a combination of both.

It is not necessary to prove that the level of alcohol in the blood was above a certain limit. A driver can be within the legal limit but still be found guilty of driving while impaired. If the judge is convinced that the person behind the wheel was in no state to drive when he was stopped, he can be found guilty of driving while impaired.

There are various ways to test the level of alcohol in your blood. The simplest is by taking a breath sample.

While a breath sample is the most commonly used test, a blood or urine test can also detect the level of alcohol in your blood. Blood and urine tests are more reliable, but are more difficult to administer, so are used less often.

Whatever the sample method used, the results are written down on a certificate that can be submitted to the court if a trial takes place.

These results show the concentration of alcohol in your blood at the time the sample was taken, which could be several hours after the police saw you driving. On average, once a person stops drinking, the body eliminates 15 mg of alcohol per 100 ml of blood every hour. This means that a person’s alcohol-to-blood level when a sample is taken is usually lower than when she was driving. Because of this gap, the law sets out the following rule: if the first sample was taken within 2 hours of driving, the law assumes that the concentration of alcohol in the driver’s blood when she was driving was the same as when the sample was taken.

A breath sample test is used by police officers to determine blood-alcohol level when a person’s ability to drive is in doubt.

At the police station, a qualified technician (a police officer) takes a breath sample from the driver. The driver must exhale deeply into a tube so that the air comes from her lungs, not just her mouth. The tube is attached to an instrument that analyzes the sample. For the test to be valid, a minimum of 2 samples must be taken at least 15 minutes apart.

Substances like alcohol, mouthwash, or cigarette smoke residue can contaminate a breath sample. This is why the exhaled air has to come from the lungs, and why the police won’t let the person eat or drink anything until the test is finished. It is also why the police officer must wait 15 to 20 minutes to administer the test if the driver burps or feels like he is about to vomit.

Here’s an example: Pierre is taken to the police station. His car is towed. At the station, he is allowed to contact a lawyer. The lawyer tells Peter that, unless he gives a breath sample, he could be charged with the offence of refusing to provide one. After Pierre takes the test, the police officer tells him of the following results:

• 12:45 a.m. - 130 mg of alcohol/100 ml of blood
  
• 1:05 a.m. - 130 mg of alcohol/100 ml of blood

Pierre is obviously over the legal limit of 80 mg of alcohol per 100 ml of blood. He’s totally shocked: he only drank 3 beers!

The police release Pierre and give him documents regarding the suspension of his licence. They also give him a document saying he must appear in court in 5 weeks.

A police officer can order you to follow her to the police station and provide a breath sample if she has reasonable grounds to believe that:

• You were driving while your ability to drive was impaired by alcohol or while the level of alcohol in your body was above 80 mg of alcohol in 100 ml of blood.
  
  
• You have the care or control of a vehicle while your ability to drive is impaired by alcohol or while the level of alcohol in your body is above 80 mg of alcohol in 100 ml of blood. (To learn more about "care or control", see the question "What if I'm just sitting in my vehicle and the engine isn't running?" in our Infosheet Driving While Impaired)
  
  
• In the previous 3 hours, you drove or had the care or control of a vehicle while your ability to drive was impaired by alcohol or while the level of alcohol in your body was above 80 mg of alcohol in 100 ml of blood.

These “reasonable grounds” can be based on the officer’s observations and gathering of evidence. This evidence can include a preliminary breath sample using an “approved screening device”, the results of physical coordination tests and the officer's observations.

An approved screening device is used by the police to take a preliminary breath sample. This initial test is used to establish reasonable grounds for believing that a driver committed an offence. It is usually used on the spot when the driver is stopped by the police.

The driver is asked to exhale into this device, which gives an approximate reading of the amount of alcohol in the person’s blood. It is just a screening device and does not give an exact reading. This means that the results are generally not accepted in court to prove that the driver’s driving ability was impaired or that he was over the legal limit. (The more accurate breath sample test is taken at the police station.)

If an officer orders you to provide a sample using an approved screening device, you must cooperate. It is a criminal offence to refuse to take the test without a reasonable excuse. The device gives 3 possible results:

• The driver has between 0 and 49 mg of alcohol per 100 ml of blood. This indicates little or no alcohol in her blood.
  
  
• The driver has between 50 and 100 mg of alcohol per 100 ml of blood: The message “Warn” appears on the device.
  
  
• The driver has more than 100 mg of alcohol per 100 ml of blood: The message “Fail” appears on the device.

If “Fail” appears on the device, the police officer has reasonable grounds to arrest you and bring you to the police station to administer the more accurate breath test described in the question "How does the breath sample test work?".

If the result is “Warn”, the officer will generally conduct coordination tests to determine if you were really fit to drive. If you fail the coordination tests, the officer can decide that she has reasonable grounds to arrest you and bring you to the station for the more accurate breath sample test.

Yes. In addition to the “approved screening device”, the police officer can use physical coordination tests to determine whether you are fit to drive. She can even film your performance.

For example, the officer might ask you to walk in a straight line or to raise one leg while looking at the foot still on the ground for 30 seconds.
Refusal to do these tests is an offence under the Highway Safety Code and can result in a $200 to $300 fine.

Refusal is also an offence under the Criminal Code and is punished in exactly the same way as the offence of driving with a level of alcohol in your blood that exceeds the legal limit.

In addition to these tests, the officer can observe you to try to detect signs of intoxication recognized by the courts. These signs include:

• erratic, abnormal or dangerous driving, or an accident
  
• smell of alcohol on your breath or slurred speech
  
• red or glossy eyes
  
• inexplicable loss of balance
  
• incoherence, confusion, mood swings
  
• failure of the physical coordination tests

The police officer's observations and results of the tests she asked you to perform might give her reasonable grounds to believe that you had too much to drink. If she does establish these reasonable grounds, she can order you to accompany her to do the more accurate breath sample test.

A police officer can order you to provide a blood sample in the following situations:

• She has reasonable grounds to believe that, in the previous 3 hours, you were driving or had the care or the control of a vehicle while impaired.
  or
  
• She has reasonable grounds to believe that, in the previous 3 hours, you were driving or had the care or the control of a vehicle while the level of alcohol in your blood was above 80 mg per 100 ml.

and

• Taking a breath sample is difficult or impossible due to your physical condition at the time of your arrest.

For example, a person suffering from asthma or respiratory problems may be unable to give a breath sample, or the driver may have injured his mouth or jaw in a car accident. In both cases, the police can take the driver to the hospital to get a blood sample. Only a doctor or nurse can take this sample and only if the doctor believes that this will not threaten the driver’s life.

Sometimes, the driver is unable to consent to the taking of a blood sample. For example, he may be unconscious or very agitated following an accident. In these cases, the police officer must get a warrant to obtain a blood sample. She can only ask for the warrant if a doctor has confirmed that the driver’s condition prevented him from consenting to or refusing the request for a blood sample, and that the procedure won’t endanger the driver’s life. The procedure can only be used if the driver was involved in an accident in which he or another person were injured, or in which another person died.

The law states that it is a criminal offence to refuse to do the following without a reasonable excuse:

• provide a sample through the approved screening device or the more accurate breath sample test
  
• perform the physical coordination tests required by the police officer
  
• consent to giving a blood sample
  
• follow a police officer in order to provide a sample

If you are found guilty of one of these offences, you are subject to the same punishment as for the offence of driving while impaired or driving while the level of alcohol in your blood was above the limit of 80 mg of alcohol per 100 ml of blood.

Also, if the police have enough evidence, you can even be charged with both refusing to provide a sample and impaired driving.

You face being charged with the offence of driving with over 80 mg of alcohol in 100 ml of blood. If you are found guilty, you are subject to the punishment set out in the Criminal Code.

The Criminal Code provides the same sentence for all of these offences:

• operating a vehicle while your ability is impaired by alcohol and/or a drug
  
• operating a vehicle with a concentration of alcohol in your blood that is above 0.08 (80 mg of alcohol in 100 ml of blood)
  
• refusing to provide a breath or blood sample

If you’re found guilty, the judge will determine your punishment based on the following factors: the circumstances surrounding your driving and how you were intercepted by the police, your behaviour, your refusal, your criminal record, and the recorded concentration of alcohol in your blood, if it was taken.

The Criminal Code provides the following minimum punishments:

• first offence: a minimum fine of $1,000 and an order preventing you from driving for 1 to 3 years, plus any jail time to which you are sentenced
  
• second offence: minimum prison time of 30 days and an order preventing you from driving for 2 to 5 years
  
• for each subsequent offence: minimum prison time of 120 days and an order preventing you from driving for at least 3 years

The maximum jail time for all of these offences is 5 years. If you hurt someone, the maximum goes up to 10 years. If someone is killed, the maximum sentence is life imprisonment.

If you refused to provide a sample, the order preventing you from driving can only be issued when it is proven that you actually drove or had the care or control of a vehicle in the 3 hours before your refusal.

As with all criminal offences,if you are found guilty, you will have a criminal record.

If you are found guilty, your driver’s licence will be immediately confiscated. In addition, the Société de l’assurance automobile du Québec (SAAQ) will be notified and your driver’s licence will be cancelled. Your right to request a new licence will be suspended for 1 year for a first offence, 3 years for a second offence within a 10-year period of the first offence, and 5 years for subsequent offences within a 10-year period.

In all cases, your right to obtain a new driver’s licence will be suspended for at least as long as the judge orders.

Different rules apply to the length of the suspension of your licence if you are found guilty of

• driving with more than 160 mg of alcohol in 100 ml of blood, or
  
• refusing to follow a valid order of a police officer that would allow her to determine if you are able to drive (e.g., you refuse to follow an order to provide a breath sample).

For more information, consult our Infosheet Getting Your Driver's Licence Back After an Alcohol-Related Offence.

Yes. The government-approved machine for taking breath samples is reliable, but this does not mean that is never malfunctions or that human error never occurs during the process.

To contest the results, the Criminal Code provides that you must produce evidence tending to show that:

1. The device used was malfunctioning or a mistake was made when using it.
   
   AND
   
   
2. The test results were due to the malfunctioning machine or the mistake made when using it.
   
   AND
   
   
3. The concentration of alcohol in your blood was under 80 mg of alcohol per 100 ml of blood when you supposedly committed the offence.

Since it is extremely difficult to prove all of these things, certain courts have allowed people to bring forward other types of evidence.

If you wish to contest the results of your breath sample test, consult a lawyer.