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Impaired Driving
The police charged me with impaired driving – what is impaired driving?
Canada’s Criminal Code has two impaired-driving offences at s. 253: (1) driving when alcohol or drugs impair your ability to operate your vehicle; and (2) driving when you have more than 80 milligrams of alcohol in one hundred millilitres of your blood. The police often use “impaired” or “impaired driving” as shorthand for offence (1) and “over 80” or “over 0.8” as shorthand for offence (2). For example, the police may charge someone with “impaired and driving over 80.”
I am charged with both impaired driving and driving "over 80". Can I get convicted of both?
It depends: do the charges come out of the same incident or event? If they do, then, no, you cannot get convicted of both offences. Instead, if you get convicted of one offence, you are automatically acquitted (found not guilty) of the other offence. A lawyer can advise you on the odds of your being acquitted or convicted of being impaired or of driving over 80.
It cannot be impaired driving if it’s my prescription drugs – right?
No, the meaning of “drugs” in s. 253 of the Criminal Code is wide enough to cover both prescription and non-prescription drugs, and to cover any other chemical that may impair your driving.
What kinds of evidence show that I was impaired by drugs or alcohol?
The court considers physical signs of impairment – for example, glassy, blood-shot or unblinking eyes, unsteady walking, slurred talking, erratic driving, or erratic physical movements. The court may take the smell of alcohol on the breath as a sign of impairment by alcohol. If you are unsure if you had signs of impairment by drugs or alcohol, consult a lawyer.
What kinds of evidence show that I was "over 80"?
The courts consider medical readings of your blood alcohol level. The issue of medical readings of your blood alcohol level is discussed further under the "Measuring Your Blood Alcohol Level".
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Failing or Refusing to Provide a Sample
The police charged me with impaired driving and with failing or refusing to provide a sample. What is failing or refusing to provide a sample?
This means the police had the right to demand a breath or a blood sample and asked someone for a sample; but the person failed or refused to provide a sample and did not have a reasonable excuse for failing or refusing to give it.
Can the police charge me with failing or refusing to provide a sample of my blood or breath?
It depends on some basic elements:
- Did the police have the right to demand a sample of your breath or blood?
- Did the police demand from you a sample of your breath or blood?
- Did you fail or refuse to give a sample?
- Did you have a reasonable excuse to fail or refuse to give a sample?
A lawyer can advise you whether any of those basic elements apply to you.
What is a reasonable excuse to fail or refuse to give a sample of my breath or blood?
In general, a reasonable excuse is anything that (a) makes it extremely difficult to comply with the police demand for a sample or (b) is likely to involve substantial risk to your health if you comply with the demand for a sample. Being voluntarily drunk is not a reasonable excuse. A lawyer can advise you on whether or not you have a reasonable excuse.
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Measuring Your Blood Alcohol Level
When can the police legally measure the alcohol in my blood?
One or both of these two basic situations must apply.
- The police have reasonable and probable grounds to believe that, anytime in the previous three hours, you drove a vehicle (a) when you were impaired by alcohol or drugs or (b) when you had more than 80 milligrams of alcohol per one hundred millilitres of your blood.
- You have care or control of a vehicle, and the police reasonably suspect your body contains alcohol.
A lawyer can advise you whether one or both of those situations apply to you.
Even if my car is not moving, can police have my blood alcohol measured?
They can but only if two things are true: (1) they have the right to take samples of your breath or blood and (2) you were in care and control of your vehicle.
What is care and control?
In criminal law, care and control means care and control of a vehicle. More specifically, you have the ability to set the vehicle in motion.
Does care and control only apply to vehicles that are moving?
No. In some cases, the courts find people to have had care and control of parked vehicles because they were in the drivers’ seats. That is, in such cases, the courts find that the driver had the ability to set the vehicle in motion. If you are unsure if you had care and control, consult a lawyer.
What if I try to sleep off my drinking in my truck or just stay outside my vehicle while drinking or after drinking – I’m not in care and control, right?
Not necessarily. In many cases, Alberta courts find that sleeping in a vehicle or just being near a parked vehicle are being in care and control. That is, the court finds that the driver could have set the vehicle in motion – the court may also be concerned with a risk that the driver could have put the vehicle in motion on purpose or by accident and could have become a danger to the public. If you are unsure if you had care and control, consult a lawyer.
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Breath or Blood Samples
How do the police measure my blood alcohol?
The police take samples of your breath or blood and measure those samples for your blood alcohol level.
Can the police have just anyone measure my blood alcohol?
No, in Canada only qualified people may take breath or blood samples and use them to measure your blood alcohol.
How do the police take breath samples?
The police use a mobile breathalyser or a stationary intoxilyser. The breathalyser is used at the roadside; the intoxilyser is used in a police station or a stationary trailer. If you are unsure if the police can or could legally sample your breath, consult a lawyer.
Can the police ask me for breath samples only?
It depends. The default sample is a breath sample, but in some circumstances the police may have the right to ask you for a blood sample.
When can the police demand a blood sample instead of a breath sample from me?
The police officer must have the right to demand a sample. As well, the police asking for a sample must have reasonable grounds to believe that, because of a physical condition, you may be incapable of providing a sample of breath, or it would be impractical to obtain a sample of your breath. A lawyer can advise you on whether or not the police could demand a blood sample from you.
What can excuse me from providing a blood sample?
Any physical condition may excuse you, if that condition leaves you incapable of providing a breath sample when the police ask for a breath sample. A lawyer can advise you on whether or not the police could demand a blood sample from you.
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Further Resources
How do I find more information about impaired driving offences or about failing or refusing to provide a sample?
Alberta has many sources of such information, including law offices, Alberta Law Society libraries, university law libraries, and these organizations:
- Alberta Government: For example, the Ministry of Transportation gives out its Basic Licence Driver's Handbook on-line and at registry offices; Chapter 9 deals with impaired driving and the Alberta Administrative Licence Suspension program (AALS). AALS means that drivers charged with an alcohol-related offence in Alberta face an automatic suspension of their driving privileges. No conviction is necessary. You can reach government ministries and offices, toll-free, from any land-line telephone in Alberta, by calling the Government’s switchboard at 310-0000. Reception operates from 8:00 a.m. to 6:00 p.m., except on weekends or statutory holidays.
- Central Alberta Law Office (CALO). A program of Legal Aid Alberta, CALO runs a free walk-in clinic. Service is first come, first serve. For service times and other information about the walk-in clinic, please call CALO at (403) 340-7730.
- Lethbridge Legal Guidance (LLG): LLG may have relevant publications for you and, if you qualify, may have a volunteer give you information.
- Native Counselling Services of Alberta (NCSA): The NCSA can provide information. It may also decide to assign a court worker to you if you are First Nations, Métis or Inuit;
- Student Legal Assistance of Calgary (SLA): If you qualify, SLA may have a volunteer give you information;
- Student Legal Services of Edmonton (SLS): If you qualify, SLS may have a volunteer give you information. SLS also has many publications. It makes its booklets on impairment offences and on driving licence suspensions available in print and on-line.
How do I consult with a lawyer about impaired driving offences or about failing or refusing to provide a sample?
A private lawyer, a legal clinic or Alberta Law Line may be able to give you legal advice:
- Private lawyers can be found, for example, in the telephone book or through the Lawyer Referral Service at 403-228-1722 in Calgary or, toll free, at 1-800-661-1095 elsewhere in Alberta (plus, Saskatchewan, BC’s Lower Mainland, Yukon, NWT, and Nunavut).
- Full-time legal clinics in Alberta include, in Calgary, Calgary Legal Guidance and Student Legal Assistance; in Edmonton, the Edmonton Community Legal Centre and Student Legal Services; in Central Alberta (including Red Deer), the Central Alberta Community Legal Clinic; and, in Lethbridge, Lethbridge Legal Guidance. Each clinic decides on its own who gets legal advice. Central Alberta Law Office (CALO). A program of Legal Aid Alberta, CALO runs a free walk-in clinic. Service is first come, first serve, and CALO determines who is eligible for legal advice. For service times and other information about the walk-in clinic, please call CALO may be reached at (403) 340-7730.
- Alberta Law Line has staff lawyers who provide legal advice to eligible callers. The staff lawyers give legal advice solely over the telephone and do not represent people in court or meet them in person. For information about whether you would qualify for advice, please visit the Law Line Services section of this site.
What if I need help paying for a lawyer to help me in court with impaired driving offences or with failing or refusing to provide a sample?
- Friends or family might lend you money or otherwise help you with your lawyer’s bill.
- A lawyer might accept services or goods from you as partial payment of your legal bill.
- A lawyer may accept your case on what is called a Legal Aid certificate, if you get one; or Legal Aid Alberta may give a certificate to a lawyer to work on your case
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