Impaired and Over 80

Impaired and Over 80


Being charged with “drinking and driving” or DUI (driving under the influence) such as impaired driving, driving over 80 or refusing a breath sample is a criminal matter in Canada governed by the Criminal Code.


Impaired Driving / Care and Control, s. 253(1)(a)

Driving / Having Care and Control while Over 80, s. 253(1)(b)

Refuse to Provide Breath Sample, s. 254(5)


Drinking and driving offences are among the most common charges laid by police; according to Statistics Canada, they make up more than 10% of all criminal charges, and over 50,000 trials across Canada each year. There are several reasons for the frequency of these offences. One main reason for this is the “zero tolerance” policies that governments and police departments have put in place in recent years; another is that drinking and driving is an activity that cuts across all lines in society: socioeconomic, cultural, and age.

The consequences of a DUI charge may have a significant impact on a person’s ability to work, travel and gain future employment due to the harsh sanctions imposed on all drivers found guilty of these types of crimes.

There are mandatory minimum sentences that a person charged with these offences will face if convicted. These mandatory minimums are;


For a first offence, a $1000 fine and a 12-month driving prohibition*.

For a second offence, 30 days in jail and a 2-year driving prohibition.

For a subsequent offence, 120 days in jail and a 3-year driving prohibition.

* 3-month prohibition in provinces that participate in an ignition interlock device program.


In every case, if convicted of one of these offences, you will face a criminal record, higher insurance rates when you are able to resume driving and you will have to complete remedial measures implemented by the Ministry of Transportation in order to have your license reinstated.

The potential penalties are even greater than the above listed mandatory minimums when a drinking and driving offence leads to a person becoming injured or killed.

Each case is unique and therefore it is imperative that you know your rights and appoint competent counsel to garner the best resolution taking all aspects of your case under consideration.

Daniel Murphy has extensive experience in all areas of Impaired Driving and provides a unique approach utilizing both his previous experience as a prosecutor and his straight forward, client-involved process to ensure your defence strategy is just that- YOUR defence strategy. Daniel’s approach is one based upon client/lawyer transparency and collaboration which provides a solid understanding of the procedures, processes and options you have as an accused person under Canadian law.


Impaired Driving

The impaired driving charge requires proof that the ability of the accused person to operate a motor vehicle was impaired by alcohol or drug at the time of driving. Impairment can be determined in a number of ways: from the pattern of driving, police-administered field sobriety tests, to physical indicia such as slurred speech, red-rimmed watery eyes, or unsteadiness.

There isn’t any particular level of intoxication that is required, as even slight impairment is capable of supporting an impaired driving charge. However, regardless of whether the alleged impairment is slight or great, it still must be proven beyond a reasonable doubt.


Care and Control

Sometimes people are charged with being in care and control of a vehicle while impaired or while having excess blood alcohol. This is common where a person has decided to “sleep it off” in their car.

These cases are most commonly defended by assessing the intention of the person to operate the vehicle and the likelihood of the vehicle being accidentally set into motion.


Over 80

This offence is very technical in nature. A person commits an over 80 offence when they are either operating a motor vehicle or in care and control of a motor vehicle with over 80mg of alcohol in 100mL of blood. This is measured by either breath samples or blood samples.

There are many factors which can be taken into account when defending such cases. Two examples of this would be; the drinking pattern that an accused person engaged in, as well as if the approved instrument for collecting the samples has been properly maintained or perhaps improperly operated.

There are many instances in which breath samples have been found inaccurate and/or an improper procedure was used while the breath sample was being obtained.


Refusal to Provide Breath Samples

Canadians are under a legal obligation to provide samples of their breath when given a valid demand, unless there is a reasonable excuse why they are unable to do so. Defending a charge of refusing to provide a breath sample is to evaluate whether the demand for breath samples was a valid demand. If the demand was invalid, then it was not an offence to refuse it.



Driving Offences

While many driving infractions are covered by the Highway Traffic Act there are a number of distinct offences that attract criminal code consequences.


Dangerous Driving

Dangerous driving is one of the more common driving offences. This charge is broken down in a similar way as assault charges; dangerous driving, dangerous driving causing bodily harm, and dangerous driving causing death. It should not be surprising that the penalties increase with the seriousness of the offence.

In addition to the criminal code punishments for driving offences, there are often punishments or sanctions from the Ministry of Transport that apply on conviction. The typical and often most detrimental penalty is a driving prohibition.


Driving While Prohibited

While this charge is self-explanatory, the punishments can be harsh. The starting position in many jurisdictions for this offence is 30-60 days in jail. This can often be negotiated through effective representation and advocacy on your behalf.