There are six offenses in drinking and driving. They are "driving while impaired", "Having care and control of a vehicle while impaired", "Driving while exceeding 80 m.g.", "Having care and control of a vehicle while exceeding 80 m.g.", "Refusing to give a breath sample", and "refusing to submit to a roadside screen test". These are all Criminal Code Offenses.
The sentence for "refusing to give a breath sample" is usually higher than either of the "exceeding 80 m.g." offenses. Consequently, it is usually easier in the long run for you to give a breath sample if asked. If, for example you are convicted of "Refusing to give a breath sample" for the first time, but were earlier convicted of "Driving while impaired", your conviction for "Refusing" will count as a second conviction, not a first, and will receive the stiffer penalty for second offenses.
Driving a vehicle while your ability to drive is impaired by alcohol or drugs is one of the offenses. Evidence of your condition can be used to convict you. This can include evidence of your general conduct , speech, ability to walk a straight line or pick up objects. The penalty of the first offense is a fine of $50.00 to $2000.00 and/or imprisonment of up to six months, and automatic suspension of licensee for 3 months. The second offense penalty is imprisonment for 14 days to 1 year and automatic suspension of license for 6 months. The third offense penalty is imprisonment for 3 months to 2 years (or more) and automatic suspension of license for six months. These penalties are the same for the following offenses.
"Having Care and Control of a Motor Vehicle while Impaired" is another offense. Having care and control of a vehicle does not require that you be driving it. Occupying the driver's seat, even if you did not have the keys, is sufficient. Walking towards the car with the keys could be sufficient. Some defenses are you were not impaired, or you did not have care and control because you were not in the driver's seat, did not have the keys, etc. It is not a defense that you registered below 80 m.g. on the breathalyzer test. Having care and control depends on all circumstances.
"Driving While Exceeding 80 m.g. is the next offense. Driving a vehicle, having consumed alcohol in such a quantity that the proportion of alcohol in your blood exceeds 80 milligrams of alcohol in 100 milliliters of blood. Some defenses are the test was administered improperly, or the Breathalyzer machine was not functioning properly.
"Having Care and control of a Motor Vehicle while Exceeding 80 m.g." means having care and control of a vehicle whether it is in motion or not and having consumed alcohol in such a quantity that the proportion of alcohol in the blood exceeds 80 milligrams of alcohol in 100 milliliters of blood. The defenses are that the test was administered improperly, or the Breathalyzer machine was not functioning properly.
The proper procedure for a Breathalyzer test is as follows. The machine must be warmed up until the thermometer registers 50 degrees centigrade. This should take at least 10 minutes. The machine should then be turned to zero (by using the "adjust zero control") and a comparison ampoule (of normal air) inserted. If the meter remains at zero, the test can proceed. An ampoule with a standard solution is then inserted. If the metro reads high or low by more than .02% on two successive tests, the machine should not be used. If the trial is valid, the machine should be flushed with room air and the pointer set at start. The person being tested in then asked to provide two breath samples, about fifteen minutes apart. Normally they will take the result of the lowest result and use it as evidence.
"Refusing to Give a Breath Sample" means refusing without a reasonable excuse to give a sample or refusing without a reasonable excuse to accompany a police officer, when demanded by the police officer. Before the police officer can demand this, he/she must have reasonable and probable grounds to believe that the person is committing or at any time in the proceeding two hours has committed, one of the offenses of driving or having care and control of a vehicle while impaired or while having a blood alcohol level in excess of 80 m.g. The person may refuse to give a breath sample until after he/she has communicated in private with a lawyer even if this takes beyond the two hour period, unless it is shown that the request for a lawyer was not genuine and merely a delaying tactic. The test can be done after the two hour period, but a technician must testify in court as to what the person's blood alcohol would have been in the two hour period.
The person must accompany the officer even though his/her lawyer was not present. The person may argue that the officer didn't have reasonable and probable grounds to arouse any suspicion, but this however depends on the circumstances.
"Refusing to submit to a Roadside Screening Test" is the last offense. When one commits this offense, the person is refusing without reasonable excuse to give a breath sample for a roadside screening device, or refusing without reasonable excuse to accompany a police officer for the purposes of giving such a sample, when demanded by an officer. Before the officer demands a breathalyzer he must be reasonably suspicious.
The maximum penalties for impaired driving causing bodily harm to someone is up to 10 years in prison and up to a 10 year suspension from driving. The maximum penalties for impaired driving causing death is up to 14 years and a 10 year suspension from driving. The maximum penalty for manslaughter and criminal negligence causing death is up to life in prison and up to a lifetime suspension from driving.
I think that these penalties for all the drinking and driving offenses are very appropriate, but I think impaired driving causing death should be a lifetime imprisonment. Also if a person is impaired and causes bodily harm to some one they should have their license suspended for 20 years instead of 10 years.
Bibliography
- Highway Traffic Law, (Copyright January 1986: Community Legal Education Ontario) p.17-32
- Government Document, Canada
Law Reform Commission Report on Investigative Tests: Alcohol, Drugs, and Driving Offenses (1983).
- Erwin,Richard E. M.Bender. Defense of Drunk Driving Cases, Criminal/Civil. (Albany 1986) p.79-81
- Purich, Donald John, Drinking and Driving:What To Do If You're Caught. (International Self Counsel Pr. 1978) p.22-25
- Vertical File at Hill Crest Library, Drinking and Driving-Offences and Penalties: A Summary (1988) p.2
- Vertical File at Hill Crest Library, Criminal Code-Part 6 (1989), section 3, section 11.
- Vertical File at Hill Crest Library, Highway Traffic (1989), section 26
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