Impaired Driving Charges in Canada: Penalties and Process
Impaired driving is a criminal offence in Canada under Part VIII.1 of the Criminal Code. It includes driving while impaired by alcohol or drugs, having a blood alcohol concentration (BAC) of 80 mg or more per 100 mL of blood within two hours of driving, exceeding legal drug limits, and refusing a lawful breath, drug or blood demand. A first conviction carries a mandatory minimum fine of $1,000, higher for high BAC readings or refusal, and a driving prohibition of at least one year. A second offence carries at least 30 days in jail, and a third or later offence at least 120 days. Provinces add their own roadside suspensions, vehicle impoundment and licence programs, which apply even before any conviction.
This article is part of the guide to criminal law in Canada.
The short version
- Police can demand a roadside breath sample from any driver they lawfully stop, without suspecting alcohol.
- Refusing a lawful demand is a criminal offence with penalties at least as serious as impaired driving.
- The criminal "over 80" limit is 80 mg of alcohol per 100 mL of blood within two hours of driving.
- Federal drug limits apply to THC and other drugs.
- First offence: minimum $1,000 fine and a 1 to 3 year driving prohibition.
- Provinces impose immediate roadside licence suspensions and impoundment, separate from the criminal case.
- Many first offenders may be able to drive sooner with an ignition interlock device.
Criminal Impaired Driving Offences
| Offence | Code section | What the Crown must prove |
|---|---|---|
| Impaired operation | 320.14(1)(a) | Ability to operate was impaired to any degree by alcohol, a drug or both |
| Over 80 | 320.14(1)(b) | BAC of 80 mg or more per 100 mL of blood within two hours after ceasing to operate |
| Drug levels | 320.14(1)(c) | Blood drug concentration at or above the prohibited level within two hours |
| Combined alcohol and drug | 320.14(1)(d) | Combined BAC and drug concentration at or above the prohibited levels |
| Refusal | 320.15 | Failing or refusing, without reasonable excuse, to comply with a lawful demand |
| Causing bodily harm or death | 320.14(2), (3) | Any of the above, causing bodily harm or death |
"Operating" a vehicle includes driving and also having care or control, which can include sitting in the driver's seat of a parked car.
Mandatory Alcohol Screening
Since 2018, police who have lawfully stopped a driver can demand a roadside breath sample on an approved screening device without any suspicion that the driver has consumed alcohol, as long as the officer has the device with them. This is called mandatory alcohol screening. Police can also demand a roadside drug screening sample, or a standardized field sobriety test, if they reasonably suspect drug use.
Drug Limits
| Prohibited level | Type of offence | Maximum or minimum penalty |
|---|---|---|
| 2 ng to under 5 ng of THC per mL of blood | Summary offence | Maximum fine of $1,000 |
| 5 ng or more of THC | Hybrid offence | Same as alcohol impaired driving |
| 2.5 ng or more of THC combined with 50 mg or more of alcohol | Hybrid offence | Same as alcohol impaired driving |
| Any detectable amount of certain drugs, such as cocaine or methamphetamine | Hybrid offence | Same as alcohol impaired driving |
Federal Penalties
| Minimum fine or jail | Minimum driving prohibition | |
|---|---|---|
| First offence, BAC 80 to 119 mg | $1,000 | 1 year (up to 3 years) |
| First offence, BAC 120 to 159 mg | $1,500 | 1 year (up to 3 years) |
| First offence, BAC 160 mg or more | $2,000 | 1 year (up to 3 years) |
| First offence, refusal | $2,000 | 1 year (up to 3 years) |
| Second offence | 30 days in jail | 2 years (up to 10 years) |
| Third or later offence | 120 days in jail | At least 3 years |
Maximum penalties are up to 10 years in prison when the Crown proceeds by indictment, or up to two years less a day and a $5,000 fine when it proceeds summarily. Impaired driving causing bodily harm carries up to 14 years, and causing death carries up to life imprisonment.
Ignition Interlock
A court can allow a person to drive during their prohibition if they are registered in a provincial ignition interlock program. The earliest point depends on the person's history:
| Offence | Earliest interlock eligibility |
|---|---|
| First offence | After any waiting period set by the court, which can be none |
| Second offence | After 3 months |
| Third or later offence | After 6 months |
Provincial programs have their own eligibility rules, costs and requirements.
Provincial Roadside Penalties: Ontario Example
Provinces impose administrative penalties immediately, separate from any criminal charge. In Ontario, according to the Ministry of Transportation:
| Situation | Ontario penalty |
|---|---|
| BAC of 0.08 or more, or failing or refusing alcohol or drug testing | 90-day licence suspension, 7-day vehicle impoundment and $550 penalty, plus an education course (first time) or treatment program (repeat), and a 6-month ignition interlock condition on a third occurrence |
| Warn range, BAC 0.05 to 0.079, first time | 7-day licence suspension, $250 penalty and an 8-hour education course |
| Warn range, second time | 14-day licence suspension, $350 penalty and a 16-hour treatment program |
| Warn range, third time | 30-day licence suspension, $450 penalty, a 16-hour treatment program and a 6-month ignition interlock condition |
| Drivers 21 and under, and novice drivers | Zero tolerance for alcohol and drugs |
Other provinces have their own systems. For example, British Columbia uses the Immediate Roadside Prohibition program, and Alberta uses an Immediate Roadside Sanctions program that can resolve some first-time cases without criminal charges. Check the provincial government website for the current rules.
Possible Defences
A criminal lawyer will review issues such as:
- whether the initial stop and detention were lawful
- whether the right to counsel was explained and respected
- whether breath demands were made properly and promptly
- whether the screening and breath testing equipment was approved and properly used
- whether the samples were taken within the legal time limits
- disclosure of testing records and maintenance logs
- whether the person was actually operating or in care or control of the vehicle
Defences depend heavily on the facts and the disclosure, so a lawyer needs to see the full file.
Frequently Asked Questions
Can I refuse a roadside breath test?
Refusing a lawful demand without a reasonable excuse is a criminal offence. A first refusal carries a minimum $2,000 fine and a driving prohibition, which is more than the minimum for a low BAC reading.
Will I lose my licence before my trial?
Usually, yes. Provinces impose immediate roadside suspensions, often 90 days for a fail or refusal. The criminal driving prohibition applies only after conviction.
Is impaired driving a criminal record?
Yes. A conviction for impaired driving, over 80 or refusal is a criminal conviction and creates a criminal record. It can also affect insurance, employment and travel, including entry to the United States. See criminal records and travelling to the U.S..
Can I get a discharge for impaired driving?
Generally, no. A discharge is not available for an offence with a mandatory minimum penalty. The Criminal Code allows a limited exception: in provinces with an approved treatment program, a court can delay sentencing so the person can attend treatment, and may then decline to impose the mandatory minimum.
How much does an impaired driving lawyer cost?
Fees vary widely by province and complexity. See how much a criminal lawyer costs in Canada.
Charged with impaired driving? Search LawyerDirectoryCanada.ca for criminal lawyers by province and city.
Sources
- Criminal Code, Part VIII.1: offences relating to conveyances, Justice Laws Website
- Criminal Code, section 320.19: punishment, Justice Laws Website
- Criminal Code, section 320.24: driving prohibition orders, Justice Laws Website
- Impaired driving laws, Department of Justice Canada
- Impaired driving, Government of Ontario
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