Pierre is off to a pub with his friends Alain and Jean to celebrate his promotion. He drinks three beers in two hours. On his way home around 11:15 p.m., he is stopped by the police. He isn't worried because he's a big guy who can handle his beer. He hands over his papers and blows into the device they put in front of him. To his horror, the red light goes on!
This article explains the crime of driving with a blood-alcohol level over the legal limit.
What is the crime of driving while over the legal limit?
It's a crime to operate a motor vehicle with a blood-alcohol level over 0.08, which means more than 80 mg of alcohol in 100 ml of blood.
This type of crime is an "objective" one: it doesn't matter whether you were actually drunk or if your ability to drive was affected. It's an offence simply to have a blood-alcohol level that is over the legal limit. You don't even have to be driving. Just sitting in a car can be a crime if there's a possibility you might start it.
Are there other alcohol-related crimes?
Driving While Impaired
Driving while impaired means that a person is driving, or has the care or control of a motor vehicle (a car, for example), while the ability to operate it is reduced by alcohol, a drug (including medication) or a combination of both. It's not necessary to prove that the the driver's blood-alcohol level 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 driver was in no condition to drive when he was stopped by police, he can be found guilty of driving while impaired.
Zero Tolerance for Certain Drivers
It's against the law for certain people to drive after drinking any amount of alcohol at all. This is the case for new drivers and drivers 21 years old or under, as well as for bus drivers, minibus drivers and taxi drivers.
If a bus driver, minibus driver or taxi driver drives with any amount of alcohol at all in his blood, then his driver's licence for these vehicles can be suspended for 24 hours. Also, the vehicle can be towed at his expense.
The punishment can be even more serious if it's not the first time the driver has been caught drinking and driving.
Limit of 50mg/100ml for Drivers of Certain Heavy Vehicles
Drivers of certain heavy vehicles aren't allowed to drive if their blood-alcohol level is 50mg/100ml or higher. If they do, their driver's licence for these vehicles can be suspended for 24 hours. Also, the vehicle can be towed at their expense. The punishment can be even more serious if this isn't the first offence.
Important! In all cases, people who drive a vehicle with a blood-alcohol level over 0.08 will receive the most severe punishments described in this article.
How is my blood-alcohol level measured?
There are various ways to test the level of alcohol in your blood. The simplest and quickest way 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 blood-alcohol level when a sample is taken is usually lower than when she was driving. Because of this gap, the law assumes the following: if the first sample was taken within two hours of driving, the law assumes that the alcohol in the driver's blood when she was driving was the same as when the sample was taken.
How does the breath sample test work?
A breath sample test is used by police officers to determine a driver's blood-alcohol level when this 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. For the test to be valid, a minimum of two samples must be taken at least 15 minutes apart. 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.
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. This is also why the police officer must wait 15 to 20 minutes to administer the test if the driver burps or feels nauseous.
When can the police force me to give a breath sample?
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 the following:
- You were driving while impaired by alcohol or with a blood-alcohol level above 0.08.
- You had the care or control of a vehicle while impaired by alcohol or with a blood-alcohol level above 0.08. (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 article Driving While Impaired).
- In the previous three hours, you drove or had the care or control of a vehicle while impaired by alcohol or while your blood-alcohol level was above 0.08.
These "reasonable grounds" can be based on the officer's observations and gathering of evidence. This evidence can include the results of physical coordination tests or a preliminary breath sample using an "approved screening device" described in the next section.
For more information on the rules that apply when police officers detain someone, see our article Rights During a Detention or Arrest.
What's an "approved screening device"? How is this screening different from the breath sample test?
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. 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's just a screening device and doesn't 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.
If an officer orders you to provide a sample using an approved screening device, you must cooperate. It's a criminal offence to refuse to take the test without a reasonable excuse. The device gives 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 the more accurate breath sample test.
If the result is "Warn," the officer will generally conduct coordination tests to determine if you're 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.
Can a police officer ask me to follow a pencil with my eyes or 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're 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 raised foot for 30 seconds.
Refusal to do these tests is an offence under the Highway Safety Code and can result in a fine of $200 to $300. Refusal to perform these tests 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 are some of the signs:
- erratic, abnormal or dangerous driving, or an accident
- smell of alcohol on your breath or slurred speech
- red or glassy eyes
- unexplained loss of balance
- incoherence, confusion, mood swings
- failing the physical coordination tests
The police officer's observations and your test results 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. In such a situation, she can also suspend your license for 24 hours and have your vehicle towed.
When can a police officer order me to provide a blood sample instead of a sample of my breath?
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 three hours, you were driving or had the care or the control of a vehicle while impaired.
- She has reasonable grounds to believe that, in the previous three hours, you were driving or had the care or the control of a vehicle while the level of alcohol in your blood was above 0.08.
- 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 exhale hard enough 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 was injured, or in which another person died.
Can I refuse to provide a breath or blood sample?
The law states that it's 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 this is your first offence in the last 10 years, the police officer can suspend your licence for 90 days and immediately seize your vehicle for 30 days at your expense.
If you were found guilty in the last 10 years of driving above the legal blood-alcohol limit, refusing to give a breath sample or failing to stop at the scene of an accident, the officer is allowed to suspend your licence and seize your vehicle at your expense for 90 days. Also, the Société de l'assurance automobile du Québec, also known as the SAAQ (licence bureau), can stop you from buying or leasing vehicles, and it can stop you from putting your vehicles back on the road or registering them.
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 with a blood-alcohol level 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.
What happens to my driver's licence?
If you're waiting for a judge to decide whether or not you're guilty and your suspension period is over, you can request a new driver's licence. However, you must have a health checkup, called a "maintenance assessment," to determine whether you have a problem with alcohol that makes driving a vehicle unsafe. You can contact the Société de l'assurance automobile du Québec (SAAQ) to learn more about what happens if you fail the assessment.
If you're found guilty, the judge will confiscate your driver's licence. The SAAQ will be notified and your driver's licence will be cancelled. Your right to request a new licence will be suspended for three years for a first offence, and for five years for a second offence within a 10-year period of the first offence.
In certain cases the judge can order a longer suspension.
You must wait until the end of your suspension to get a new driver's licence.
What happens if the breath sample test shows that my blood-alcohol level is above 0.08?
You could be charged with the offence of driving with over 80 mg of alcohol in 100 ml of blood. If you are found guilty, you could receive one of the punishments in the Criminal Code.
The Criminal Code punishments are the same for all of the following offences:
- operating a vehicle while impaired by alcohol and/or drugs
- operating a vehicle with a blood-alcohol level above the legal limit
- refusing to provide a breath or blood sample
If you're found guilty, the judge will determine your punishment based on the circumstances surrounding your driving and how you were intercepted by the police, whether you refused to provide a sample, your criminal record (if you have one) and the concentration of alcohol in your blood, if it was tested.
The Criminal Code provides the following minimumpunishments:
- First offence: a minimum fine of $1,000 and an order preventing you from driving for one to three years, plus any jail time you are sentenced to
- Second offence: minimum prison time of 30 days and an order preventing you from driving for two to five years
- For each subsequent offence: minimum prison time of 120 days and an order preventing you from driving for at least three years
The maximum jail time for all of these offences is five 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 breath or blood sample, the order forbidding you from driving can only be issued when it's proven that you actually drove or had the care or control of a vehicle in the three hours before your refusal.
As with all criminal offences, if you're found guilty, you'll have a criminal record.
Also, your driver's licence could be suspended.
Can I contest the results of my breath sample test in court?
Yes. The government-approved machine for taking breath samples is reliable, but this doesn't mean it never malfunctions or that errors can never occur during the process.
To contest the results of your breath sample test, the Criminal Code says that you must prove that the device used was malfunctioning or that a mistake was made when using it.
If you wish to contest the results, it's best to consult a lawyer.
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.