La loi vos droits

Drivers

Driving while Impaired

Impaired driving is a serious matter with many possible consequences: a fine, loss of your driver’s licence, loss of the right to drive, a criminal record and sometimes imprisonment.

Whether due to alcohol or drugs, driving while impaired increases your chances of getting into an accident and puts you at risk of facing criminal charges.

In this Infosheet, Éducaloi explains the potential fall-out of getting behind the wheel when you aren’t fit to drive.

When it comes to drunk driving, which law applies. the Criminal Code, or the Highway Safety Code?

Two important laws deal with driving under the influence of alcohol: the Criminal Code and the Highway Safety Code.

The Criminal Code is a federal law that applies all over Canada. The Highway Safety Code is a provincial law that applies only in Quebec.

The Criminal Code defines the offences of driving while impaired and of driving with more than 80 mg of alcohol per 100 ml of blood. It also sets out sentences for these offences. The sentences depend on the type of offence, the seriousness of the offence and the number of times a person has committed the offence in the past. Possible sentences include fines, imprisonment and supension of the right to drive. This law applies to all motor vehicles, even those not on public roads.

The Highway Safety Code determines who can drive on Quebec roads and under what conditions. It deals with the consequences of breaking this law and outlines certain police powers.

What does the law say about driving after drinking and/or taking drugs?

The Criminal Code includes two offences regarding driving after drinking and/or taking drugs.

First, there is the offence of driving a vehicle while a person has

over 80 mg of alcohol in 100 ml of blood

. A driver is guilty of this offence as soon as her blood-alcohol level is over this limit. The effect of alcohol on her ability to drive isn't relevant. To learn more, consult our Infosheet Drinking and Driving  (http://www.educaloi.qc.ca/en/loi/drivers/13/).

Second, there is the offence of driving while

impaired by alcohol, a drug or a combination of the two

. This Infosheet deals with this second offence. For this offence, it is not relevant whether the driver has consumed a lot of alcohol or drugs. Instead, what's relevant is whether the person’s ability to drive has been decreased by a consumption of drugs, alcohol or both. If so, she is guilty.

These two offences are distinct, but both can apply to the use of a car, a boat, a train, a motorcycle or an airplane. In practice, a person is often accused of both offences at once. When that happens, the judge can only find the person guilty of one of the two offences.

For new drivers, the Highway Safety Code creates extra requirements in terms of drinking and driving. To learn more, consult our infosheet New Drivers and Alcohol  (http://www.educaloi.qc.ca/en/loi/drivers/17/).

What is impaired driving?

Impaired driving requires evidence that a person drove a motor vehicle while her ability to drive was decreased. The impairment of the ability to drive must come from the effects of alcohol, a drug, or both at the same time. Even fatigue combined with alcohol or a drug can be enough to reduce one’s ability to drive.

The level of alcohol in the blood of the driver is not the essential factor in this offence: what matters is the person’s ability to drive. So, a person could have only 50 mg of alcohol per 100 ml of blood and not be able to drive.

The police will gather any evidence that can show that the driver drove the vehicle while her ability to drive was impaired by alcohol and/or drugs. Driving erratically, veering out of a lane, braking suddenly or for no reason, and going too fast or too slow are all typical signs that a driver cannot control her vehicle.

Other symptoms, like the smell of alcohol on a person's breath, loss of balance when walking, glassy or bloodshot eyes, slurred, slow or incoherent speech, and failure of the coordination tests can also lead to the conclusion that a driver is impaired.

What if I’m just sitting in my vehicle and the engine isn’t running?

The Criminal Code does not distinguish between a vehicle in motion and a vehicle at rest. It is an offence simply to have the care or control of a motor vehicle when your ability to drive is impaired or your blood-alcohol level is over the limit.

Does the impaired person have the keys? Could she get them easily? Is she in the vehicle? Is she operating the radio, headlights, heating or air conditioning? If the answer to any of these questions is yes, a judge could conclude that she had the care or control of the vehicle and therefore has committed an offence, even if the person just wanted to sleep in her car.

The law says that simply occupying the seat normally reserved for the driver is evidence of care or control, unless the driver succeeds in proving to the court that she didn’t intend to start the vehicle.

Let's say that, just outside a bar, Alan is drunk and sits behind the wheel of his car to wait for Roger, who is going to drive him home. Even if Alan did not intend to drive, the police can arrest him. Alan will have to prove that he didn't intend to start the vehicle.

What are the powers of the police when dealing with impaired drivers?

To deal with impaired drivers, the police can intercept vehicles randomly on the road, or patrol and observe how people on the road are driving.

Also, they can put up roadblocks, but only if the operation is publicly advertised. The roadblock allows them to keep drivers from passing by without stopping. The drivers are obliged to stop when a uniformed police officer asks them to.

Once the vehicle is stopped, the police can briefly question the driver about her alcohol consumption. If they believe that the driver has had something to drink, the police can ask her to get out of the vehicle, observe her behaviour, have her do physical coordination tests or even have her undergo a screening test using an approved screening device. If the police think that her driving was impaired by drugs, they will only submit her to physical coordination tests. The police have the right to film all of these tests.

A police car just pulled up. What can the police officer make me do?

The police officer can order you to do physical coordination tests or to breathe into the screening device. Your refusal to comply will be considered a criminal offence.

To do their job, the police can question you, but you have no legal obligation to answer. But you must hand over your licence and registration, as well as proof of insurance, to the police officer who asks for them.

If after this brief investigation, the police have reasons to believe you have committed the offence of impaired driving due to consuming alcohol alone or driving with a blood-alcohol level over the legal limit, they can order you to accompany them to the police station to do a more accurate breath sample test. Drinking and Driving  (http://www.educaloi.qc.ca/en/loi/drivers/13/).

If the police have reason to believe that you are impaired by drugs, or by a combination of drugs and alcohol, they can order you to follow them to pass more advanced tests conducted by an “evaluating officer”. This expert will conduct physical tests. For example, he can measure your pulse, take your temperature, examine the size of your pupils or ask you to follow a moving object with your eyes. This evaluation can be filmed. Depending on the result of his evaluation, the evaluating officer can order you to provide a sample of your saliva, urine or blood. He can also order you to submit to the more accurate breath sample test, if it has not already been done.

If a police officer arrests me, can he immediately suspend my licence or seize my vehicle?

Under the Highway Safety Code, your licence will be suspended on the spot for 90 days under the following circumstances:

• when the breath sample test of a driver indicates over 80 mg of alcohol per 100 ml of blood
  
• when a person refuses to breath into the screening device, do the physical coordination tests or follow the police officer to the police station to undergo a breath sample test or advanced tests conducted by an evaluating officer
  
• when a driver covered by the “zero alcohol” policy has not respected this rule

Also, the police officer will seize your vehicle and impound it at its owner’s expense for 30 days if:

• You refuse to do the physical coordination tests, breath into the screening device or follow the police officer to the police station to do the breath sample test or advanced tests conducted by an evaluating officer.
  
• Your breath sample test reveals that you have more than 160 mg of alcohol per 100 ml of blood, so more than twice the legal limit.
  
• You drive without having a valid licence because, for example, your licence was cancelled due to a conviction for impaired driving.

• Your breath sample test reveals that you have more than 80 mg of alcohol per 100 ml of blood and you have been found guilty in the past (past 10 years) of
  
  - impaired driving,
  - driving with more than 80 mg of alcohol per 100 ml of blood, or
  - refusing to follow the valid order of the police officer that would allow him to determine if you were able to drive (e.g., refusal to provide a breath sample).

What are my rights if I am arrested for impaired driving?

You have the right to remain silent. The police officers will surely want to know how much you have consumed, where, when and with whom. However, you are not legally obliged to answer these questions, especially since your answers can be used against you in court.

At the police station, the police officers must allow and help you to contact the lawyer of your choice, even if this requires a long-distance call. To do this, they must give you access to a telephone book and a private room with a telephone in it. You have the right to speak with your lawyer in private. The police must inform you about access to legal aid and about “duty counsel services”. This is a legal advice service given by telephone for free, 24 hours a day.

If you leave the police station with a notice to appear in court, write down your version of the facts as early as possible, with all the details, especially about your drug and alcohol consumption. Contact your lawyer.

What are the possible sentences for driving a vehicle while impaired?

The sentences in the Criminal Code for all of the following offences are the same:

• driving a motor vehicle while impaired
  
• driving with a blood-alcohol level over the legal limit
  
• refusal to provide a blood or breath sample

To decide on your sentence if you are found guilty, the judge will take into account the circumstances surrounding your driving, how you were stopped, your refusal, your previous convictions and, if relevant, and your blood-alcohol level.

The minimum sentences under the Criminal Code are the following:

• first offence: minimum fine of $1,000 and an order preventing you from driving for 1 to 3 years, on top of any prison time you might receive
  
• second offence: minimum imprisonment of 30 days and an order preventing you from driving for 2 to 5 years
  
• for each offence after that: minimum imprisonment of 120 days and an order preventing you from driving for at least 3 years

The maximum prison sentence for all of these offences is 5 years.

For the offence of refusing to provide a breath or blood sample, you will only be ordered not to drive if it is proven that you actually drove or had the care or control of the vehicle in the 3 hours before your refusal.

Your driver's licence will be confiscated by the judge as soon as you are found guilty. Also, the Société de l’assurance automobile du Québec (SAAQ) will be informed of your conviction, cancel your licence and suspend your right to obtain a new licence. For a first conviction, the suspension lasts for 1 year. If you are convicted in the following 10 years, the suspension lasts 3 years. For subsequent convictions within 10 years of the last conviction, the suspension is for 5 years.

In all cases, your right to obtain a new driver’s licence is suspended for at least as long as the judge’s order preventing you from driving.

Note that different rules apply to the length of suspension of your licence if you are found guilty of:

• driving with more than 160 mg of alcohol per 100 ml of blood, or
  
• refusing to follow the valid order of a police officer that would allow him to determine if you were able to drive (e.g., refusal to provide a breath sample).

For more information, consult our Infosheet Getting Your Driver's Licence Back After an Alcohol-Related Offence  (http://www.educaloi.qc.ca/en/loi/drivers/14/).

Are the sentences the same if I hurt or kill someone?

No. The sentences are heavier if the impaired driving caused injury or death.

If you hurt someone, the law provides a maximum prison sentence of 10 years plus an order preventing you from driving for a maximum of 10 years.

If you kill someone, you face possible life imprisonment. There is no maximum prohibition on driving: the judge will issue an order preventing you from driving for the period of time most appropriate given the circumstances of your case.

Useful Links :

1. Société de l’Assurance Automobile du Québec (SAAQ) website  [http://www.saaq.gouv.qc.ca/alcool/index.html] (French only)