Driving While Impaired 

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Impaired driving is a serious matter that can have a big impact: a fine, losing your driver's licence, losing your right to drive, a criminal record and sometimes jail. Whether due to alcohol or drugs, driving while impaired increases your chances of getting into an accident, and you could face criminal charges.

In this article, Éducaloi explains impaired driving and what could happen if you get behind the wheel when you aren't fit to drive. 

Which law applies to drunk driving - the Criminal Code or the Highway Safety Code?

Both laws deal with driving under the influence of alcohol: the Criminal Code is a federal law that applies all over Canada, and the Highway Safety Code is a provincial law that applies only in Quebec.

The Criminal Code defines the offences of driving while impaired and driving with a blood-alcohol level over 80mg/100ml. 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, jail time and suspension of the right to drive. This law applies to all motor vehicles, even those not used 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 drunk driving and driving while on drugs?

The Criminal Code includes two offences related to drunk driving and driving while on drugs.

First, there is the offence of driving with a blood-alcohol level over 80mg/100 ml. A driver is guilty of this offence as soon as her blood-alcohol level is over this limit, even if the amount of alcohol in her body doesn't affect her driving. To learn more, see our article Drinking and Driving.

Second, there is the offence of driving while impaired by alcohol, a drug (including medication), or a combination of the two. This Infosheet deals with this second offence. For this offence, it doesn't matter whether the driver has consumed a lot of alcohol or drugs. Instead, what's important is whether the person's ability to drive has been decreased because of drugs, alcohol or both. If so, she is guilty.

These two offences are separate, but both can apply to the use of a car, boat, train, motorcycle or 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 concerning drinking and driving.

What is impaired driving?

Impaired driving requires evidence that a person drove a motor vehicle while her ability to drive was decreased. The decreased ability to drive must come from the effects of alcohol, a drug (including medication), or both at the same time. Even fatigue combined with alcohol or a drug (or medication) can reduce a person's ability to drive to the point that it's illegal.

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

The police will gather any evidence that can show the driver was driving while impaired. Zigzagging, 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 can't 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 committed an offence, even if the person just wanted to sleep in her car.

The law says that just sitting in the driver's seat is evidence of care or control, unless the driver can prove two things to the court:

  • she didn't intend to start the vehicle
  • her behaviour did not result in a real risk to another person or to property

For example, imaginet that Alan is leaving a bar. He is drunk and sits behind the wheel of his car to wait for a taxi to take him home. Even if Alan did not intend to drive, the police can arrest him. Alan will have to prove he didn't intend to start the vehicle and that his behaviour did not result in a real risk of danger to another person or to property.

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

To identify impaired drivers, the police can patrol and observe how people are driving, or they can stop vehicles at random.

Also, they can put up roadblocks. The roadblock allows them to check for impaired driving and to ask drivers to stop if necessary. Drivers must stop when a uniformed police officer asks them to.

Once the vehicle is stopped, the police can briefly question the driver about whether she has had any alcohol. If they believe that the driver has had something to drink, they 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 ask her to do the physical coordination tests. The police have the right to videotape all of these tests. 

A police officer stopped me. What can the police officer make me do?

The police officer can order you to do physical coordination tests or breathe into the screening device. If you refuse, this 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, if the police officer asks for them.

If, after this brief investigation, the police have reason to believe you are guilty of impaired driving due to 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. For more information, see our article Drinking and Driving.

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 do more advanced tests conducted by an "evaluating officer." This expert will conduct a series of 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 videotaped. 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, as well as suspend your licence for 24 hours and have your vehicle towed.

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

The police can suspend your driver's licence and seize your vehicle in these cases:

  • The police officer's tests give her reasonable grounds to believe that your ability to drive is impaired.
  • The results of your breath sample test show a blood-alcohol level over 80mg/100ml.
  • You refuse to  give  breath sample, do the physical coordination tests or follow the police officer to the police station to undergo the breath sample test or the more advanced tests conducted by an evaluating officer.
  • You are covered by the "zero alcohol" policy and you broke this rule.
  • You were driving without a licence or did not follow its conditions. For example, you were driving even though your licence was cancelled because of impaired driving or you were driving a vehicle that was not equipped with an alcohol ignition interlock device when it should have been.

To learn more, see our article Drinking and Driving.

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

You have the right to remain silent and to speak to a lawyer about your rights and obligations.  However, you must identify yourself to the police officers by giving your name, address and date of birth. To learn more, see our article Rights During a Detention or Arrest.

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 one to three years, on top of any prison time you might receive
  • second offence: minimum prison sentence of 30 days and an order preventing you from driving for two to five years
  • for each offence after that: minimum prison sentence of 120 days and an order preventing you from driving for at least three years.

The maximum prison sentence for all of these offences is five years. If you refused to provide a breath or blood sample, you will lose your right to drive only if it is proven that you actually drove or had the care or control of the vehicle in the three-hour period before your refusal. 

What about my driver's licence?

The judge will confiscate your driver's licence as soon as you are found guilty. 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 one year. If you are convicted in the following 10 years, the suspension lasts three years. For subsequent convictions within 10 years of the last conviction, the suspension is for five years.

In some cases the judge can order you not to drive for a longer period. You must wait until the end of your suspension to get a new licence

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 in prison. The judge can order you not to drive for whatever period seems most appropriate given the circumstances of your case. There is no maximum period.

Important !
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.