La loi vos droits

Drivers

Drinking and Driving

Pierre is off to the local pub with his friends, Alain and Jean, to celebrate his promotion. He drinks three beers over two hours. At around 11:15 p.m., on his way home, Pierre is pulled over by the cops. He isn’t worried, though – after all, he’s a big guy who can handle his beer. Pierre calmly hands over his papers and blows into the device they put in front of him. To his horror, the red light turns on!

In this Infosheet, Éducaloi explains the criminal offence of driving with a level of alcohol in your blood that is above the legal limit.

What is the criminal offence of driving while over the legal limit?

A person commits this criminal offence if he operates a motor vehicle when he has a concentration of more than 80 mg of alcohol in 100 ml of blood, which is a rate of 0.08.

This type of offence is an “objective” one. This means that it doesn’t matter whether the person was actually drunk or if his ability to drive was affected. A person commits this offence simply by having a concentration of alcohol in his blood that is above the legal limit.

How is this offence different from “driving while impaired”?

To be convicted of driving while impaired, a person must drive or have the care or control of a motor vehicle (e.g. a car) while her 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 may well be within the legal limit but still be convicted of driving while impaired. This will be the case if the judge is convinced that the person behind the wheel was in no state to drive when she was stopped.

How can the police prove that the level of alcohol in my blood was over the limit?

There are various ways to establish the level of alcohol in your blood, but the simplest and fastest is by taking a breath sample. This is called a “breathalyzer test”, which is the most commonly used test. A blood or urine test can also detect the level of alcohol in your blood. It is more reliable than the breathalyzer test but less practical and more difficult to administer. Thus, it is used less frequently.

Whatever the test used, the results of the concentration of alcohol in your blood are written down in a certificate that can be submitted to court if a trial takes place.

These results represent the concentration of alcohol in your blood at the time the sample was taken, which may be hours after the police saw you driving. On average, once a person stops drinking, her body eliminates 15 mg of alcohol per 100 ml of blood every hour. So, in theory, a person’s alcohol to blood level at the time a sample is taken is actually lower than when she was driving.

The law sets out the following rule: if the first sample is taken within 2 hours of driving, the law assumes that the concentration of alcohol in the driver’s blood when he was driving is the same as the one found when the sample was taken.

What is a breathalyzer test?

A breathalyzer test is used by police officers to determine a person’s blood alcohol level when his ability to drive is put in doubt.

At the police station, a qualified technician (a police officer) takes a breath sample from the driver. The driver must exhale deeply (so that the air comes from his lungs, not just his mouth) into a tube, which is attached to an instrument that analyzes the sample. In order 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’s car is towed and he is taken to the police station. Once there, he is allowed to contact a lawyer. The lawyer informs Pierre that he must take a breathalyzer test or he may be charged with the offence of refusing to provide a breath sample. After Pierre takes the test, the police officer informs 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 that tells him that he must appear in court in 5 weeks.

Under what circumstances am I obliged to take a breathalyzer test?

A police officer can order you to follow her 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  (http://www.educaloi.qc.ca/en/loi/drivers/16/))
  
  
• 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.

The police officer can have “reasonable grounds” based on her observations and investigation (particularly her use of an “approved screening device” or the results of the physical coordination tests she made you undergo).

What’s an “approved screening device” and how is it different from a breathalyzer test?

An “approved screening device” is used by police to acquire reasonable grounds for believing that a driver committed the offence. The driver is asked to exhale into this small device, which permits 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. So 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.

If an officer orders you to provide a breath 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 allows three 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: careful! (The message “Warn” appears on the device.)
  
  
• The driver has more than 100 mg of alcohol per 100 ml of blood: danger! (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 a breathalyzer test. If the result is “Warn”, the officer will generally conduct coordination tests to determine if you were really in a state 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 a breathalyzer test.

Is a police officer allowed to move a pencil in front of me and ask me to follow it with my eyes or to test my coordination in similar ways?

Yes. In addition to the “approved screening device”, the police officer can use physical coordination tests to determine whether you were 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 it 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. This refusal is also an offense under the Criminal Code that is punished in exactly the same way as the offense of driving with a level of alcohol in your blood that exceeds the legal limit.

In addition to these tests, the officer may observe you during the entire time you are detained in order to detect the usual signs of intoxication that are 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 result of the police officer's observations and of the tests that she asked you to perform enable her to have reasonable grounds to believe that you had too much to drink. The police officer can order you to follow her to do the breathalyzer test if, and only if, she has these reasonable grounds.

When can a police officer order me to provide a blood sample instead of a sample of my breath?

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

• If 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; and/or
  
• If 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

• If 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 perform a breathalyzer test. 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 such a case, the police officer must get a warrant to obtain a blood sample. She can only ask for the warrant if a doctor has attested that the driver was in such a state that he could neither consent to nor refuse the request for a blood sample and that the procedure won’t endanger the driver’s life. The sample will only be authorized if the driver was involved in an accident in which he or another person were injured, or in which another person died.

Can I refuse to provide a blood or breath sample?

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

• Provide a breath sample through a breathalyzer test or the approved screening device;
  
• 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 you would be for the offence of driving while impaired or driving while the level of alcohol in your blood was above the limit.

You should know that if the evidence supports it, you can be charged with both refusing to provide a sample and impaired driving.

What happens if the breathalyzer test indicates that the level of alcohol in my blood is above the legal limit?

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 the following 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 $1000 and an order forbidding 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 forbidding you from driving for 2 to 5 years;
  
• For each subsequent offence: minimum prison time of 120 days and an order forbidding 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 as a result of your illegal driving, the maximum sentence is life imprisonment.

If you refused to provide a sample, the order forbidding 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, you will have a criminal record if you are found guilty of these charges.

Your driver’s licence is confiscated by the judge immediately upon conviction. In addition, the Société de l’assurance automobile du Québec (SAAQ) is informed of your conviction and your driver’s licence is cancelled. Your right to request a new licence is suspended for 1 year for a first offence, 3 years for a second offence within a 10 -year period from 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 is suspended for at least as long as the judge’s order to that effect.

Can I contest the results of my breathalyzer test in court?

The government-approved breathalyzer test is reliable. That does not mean that the device is infallible or that human error can never occur during the process.

It is therefore possible to contest the results of your breathalyzer test but it isn’t an easy thing to do. You must give evidence tending to show that:

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

Useful Links :

1. Société d'assurance automobile du Québec website  [http://www.saaq.gouv.qc.ca/prevention/alcool/index.html] (French only)