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drinking and driving, Drinking and Driving

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Drinking any alcohol whatsoever and then sitting in your car is a very bad idea.  You don't have to drive to be charged. You don't have to drink to excess to receive a demand to blow into a breath machine. Any alcohol in your body puts you at risk if you are near a vehicle.

The words "drinking & driving" are used by governments, lobby groups such as M.A.D.D., the media, and some members of the public to describe the social problem of operation of a motor vehicle while in a state of incapacity to drive due to alcoholic or drug intoxication. The consumption of alcohol or a drug can result in reduced vision, perception, reaction, and competence. "Drinking and driving" is, however, a completely different concept than "drunk driving". The expression "drinking and driving" is not found in the Criminal Code of Canada. 

It is NOT a criminal offence in Canada to drink and drive. Unless you are a novice driver with a condition on your licence that requires a blood alcohol concentration (BAC) of 000 mg/100mL it is not a provincial offence to drink and drive. There may also be certain professional and statutory responsibilities for particular professions such as pilots but it is NOT a criminal offence for a member of the public to operate a motor vehicle after consuming an alcoholic beverage.

The consumption of alcoholic beverages is lawful in Canada. Canadians produce high quality liquor, beer, and wine. Our liquor, beer, and wine industries and our restaurant, bar, and hospitality industries rely on the responsible enjoyment of alcoholic beverages.

Canada is a big country with wide distances and necessary travel between our homes, family, neighbours, and drinking establishments. We need our cars. Public transit is not available everywhere. It is unreasonable to expect that a person who drinks should not drive. It is often necessary to drive after drinking.

The real issue is responsibility in drinking and driving, not prohibition of drinking and driving. Every drinker who drives should learn to measure and remember the time, volume and alcohol content of every drink. If you know exactly what you drank then you can calculate when you can drive. If for example you know that each standard drink (and this varies from one individual to another) constitutes 28 mg/100 ml of Blood Alcohol Concentration, then you know that 3 standard drinks constitutes 84 mg/100 ml of BAC. Your body will eliminate that BAC through the liver at a rate of 10 to 20 mg/100 ml for each hour since you started drinking. If the person who drank 3 standard drinks had a total of 84 mg/100 ml in his or her system total and he or she waited 4 hours after the first drink before driving, then 40 to 80 mg/100 ml was eliminated leaving 4 to 44 mg/100 ml BAC at the time of driving.  4 mg/100 ml isn't going to have much effect, but 44 mg/100 ml is getting awfully close to the level of 50 mg/100 ml at which some jurisdictions suspend licences. Real responsibility in drinking and driving requires that bartenders, hosts, and individuals serve known drinks in measured and marked drinking cups, bottles, and glasses.  Real responsibility in drinking and driving requires that drinkers remember or record exactly when and what they drank. Real responsibility in drink and driving requires that governments, M.A.D.D., and police help educate drinking drivers about how to calculate their actual individual BAC equivalent for each standard drink as well their individual elimination rate. Ultimately, hosts of parties, restaurant servers, and bar owners need to be held responsible for consistently and accurately measuring, identifying, and recording what they serve every drinking driver. Bar pint glasses and wine glasses should always contain a label with their exact volume. Wine should be produced and served in individual portions. Wine glasses and beer glasses should not be replenished from a shared bottle or pitcher without a conscious decision by the drinking driver to accept another glass . Menus should accurately describe the quantities served. Restaurant receipts should accurately identify what was served, when, and to whom. Failure of licensed establishments to comply should result in prosecutions under the applicable Liquor Licence Act.

Canada has two main substantive criminal offences of impaired operation or care or control and over 80 operation or care or control:

253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

Impaired operation or care or control in Canada includes operation or care or control of a motor vehicle, vessel, or aircraft while one's ability to operate is impaired by alcohol or a drug to any degree of impairment. This drinking & driving offence is proven by evidence of bad driving and various indicia of impairment observed such as slurred speech, difficulty with standing walking turning, red glassy glossy bloodshot eyes, dilated pupils, odor odour of an alcoholic beverage, complexion flushed face, and performance on physical tests.

The drinking and driving offence of excess blood alcohol or over 80 is usually proven by breath tests that determine blood alcohol concentration using and approved instrument such as a Breathalyzer or Intoxilyzer. Blood tests are used in drinking and driving cases where breath tests are not practical.

The usual penalty for a first Drinking and  Driving offence in Canada is a fine. The minimum second Drinking and Driving offence penalty is 30 days in jail. The minimum penalty for a third Drinking and Driving offence is 120 days in jail. There is always a drinking & driving prohibition on driving and the local province will suspend a drinking and driving offender's driver's licence.

If a US citizen or other non-Canadian citizen is convicted of a drinking and driving offence in the USA or a drinking & driving offence in any country other than Canada, the drinking and driving offender will be inadmissible to Canada on grounds of criminality, unless rehabilitated, because the drinking and driving offence is deemed to be a Canadian drinking and driving offence and all Canadian drinking and driving offences are deemed indictable (similar to a US felony - see above) unless the Crown has elected to proceed with the drinking and driving offence by summary conviction (which will never have happened because the drinking and driving offense occurred outside Canada. The situation will be different if the drinking and driving offence occurs in Canada and the Crown elects to proceed by summary conviction which they normally do.

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Copyright 2018 Stephen Biss



Stephen R. Biss, Barrister & Solicitor

470 Hensall Circle, Suite 303
Mississauga, Ontario
L5A 3V4

905-273-3322  or 1-877-273-3322


Advertisement. Any legal opinions expressed at this site relate to the Province of Ontario, Canada only. If you reside or carry on business in any other jurisdiction please consult a lawyer, solicitor, or attorney in your own jurisdiction. WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.