impaired driving, Impaired Driving, driving while impaired, impaired operation of a motor vehicle, impaired care or control

The words dwi, DWI, D.U.I, and "driving while intoxicated", are used by impaired driving lawyers and impaired driving attorneys in  United  States Impaired Driving Law. The expressions "DWI" and "DUI" are not found in the Criminal Code of Canada. Canadians use terminology such as "impaired driving", "impaired operation", or "impaired care or control" rather than than "DWI " or "driving while intoxicated". We use the words "impaired driving laws" or "impaired operation laws", or "impaired care or control laws" but not "driving while intoxicated laws". In Canadian law it is any impairment by alcohol or a drug of one's ability to operate a motor vehicle combined with operation that is forbidden, not "driving while intoxicated". 

The words "drive while intoxicated" in Canada implies that an individual is drunk beyond the point of self-control. Provincial legislation authorizes the arrest of intoxicated persons when there is an element of danger to themselves. Intoxication may be a defence to serious criminal offences where the drunkenness directly interferes with the individual's capacity to intend to do something. When it comes to impaired driving law law in Canada we don't use the words "drive while intoxicated" or D.W.I, DWI. Instead we focus on whether or not the person's ability to operate the motor vehicle is "impaired" by alcohol.

The Canadian impaired driving prohibited level of impairment may be slight. In R. v. Stellato, 78 C.C.C. (3d) 380, the issue was whether or not Canada's impaired driving offence required that the driver's conduct demonstrated a marked departure from that of a normal person. Chief Justice Lamer of the Supreme Court of Canada agreed with the views of Mr. Justice Labrosse for the Ontario Court of Appeal:

"At trial, the Crown's evidence consisted of the testimony of the arresting officer and the breathalyzer technician who had observed the classic signs of impairment: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on his feet. Both police officers had concluded that the appellant's ability to operate his vehicle was impaired by alcohol."

"In his reasons, the trial judge stated:


      The question then remains as to whether those observations are sufficient or indeed whether in law what the court requires, in order to convict someone of this offence, [is] a marked departure from the standard. In that regard I have always had reference to the case of R. v. Winlaw, that is a decision of the Ontario District Court, as it then was, and His Honour Judge Salhany, a case reported at 13 M.V.R. (2d) 112, 6 W.C.B. (2d) 251, a judgment rendered some two years ago, December, 1988. There, the learned judge went through the law, as was presented to him, with respect to the law of impaired driving and I take that case to stand for the proposition that the section involved here, namely, s. 253(a), creates an offence of being impaired, not markedly impaired, but simply impaired, and it does not require evidence of a marked departure from a norm or standard of sobriety; any kind of impairment, even slight, was sufficient to constitute the offence."

 "The expression ''marked departure from what is usually considered as the normal'' originated in the decision of the Alberta District Court in R. v. McKenzie (1955), 111 C.C.C. 317, 20 C.R. 412, 14 W.W.R. (N.S.) 500. This was an appeal from a conviction on a charge of driving while ability was impaired. At p. 319, Sissons C.J.D.C. stated:


      There appears to be no single test or observation of impairment of control of faculties, standing alone, which is sufficiently conclusive. There should be consideration of a combination of several tests and observations such as general conduct, smell of the breath, character of the speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of the pupils of the eyes, character of the breathing.



      If a combination of several tests and observations shows a marked departure from what is usually considered as the normal, it seems a reasonable conclusion that the driver is intoxicated with consequent impairment of control of faculties and therefore that his ability to drive is impaired.



      I do not think such a finding should be made on a slight variation from the normal."

...

"In R. v. Campbell (1991), 26 M.V.R. (2d) 319, 87 Nfld. & P.E.I.R. 269, 12 W.C.B. (2d) 155, the Prince Edward Island Court of Appeal also considered the test for impairment. Without specific reference to McKenzie, Mitchell J.A., speaking for the court, rejected the requirement for a marked departure from normal behaviour. At p. 320, he wrote:


      The Criminal Code does not prescribe any special test for determining impairment. It is an issue of fact which the trial Judge must decide on the evidence. The standard of proof is neither more nor less than that required for any other element of a criminal offence. Before he can convict, a trial Judge must receive sufficient evidence to satisfy himself beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol.



      It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. Courts must therefore take care when determining the issue not to apply tests which assume or imply a tolerance that does not exist in law. Trial judges constantly have to keep in mind that it is an offence to operate a motor vehicle while the ability to do so is impaired by alcohol. If there is sufficient evidence before the Court to prove that the accused's ability to drive was even slightly impaired by alcohol, the Judge must find him guilty."

...

"I agree with Mitchell J.A. in Campbell that the Criminal Code does not prescribe any special test for determining impairment. In the words of Mitchell J.A., impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence: courts should not apply tests which imply a tolerance that does not exist in law.

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

In the present case, the trial judge applied the correct test for impairment. There was sufficient evidence adduced at trial from which he could find that the Crown had proved, beyond a reasonable doubt, that the appellant's ability to operate a motor vehicle was impaired by alcohol at the material time."

 

It is also a "DWI" criminal offence in Canada to drive having more than 80 milligrams of alcohol per 100 mls of blood whether one's ability to drive is "influenced"  or not . 

Canada has two main substantive DWI law criminal offences:

  1. impaired driving, impaired operation, or impaired care or control,

  2. over 80 operation or care or control

Section 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 impaired 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 impaired 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 DWI 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 900 900A or Intoxilyzer 5000C. Blood tests are used in impaired driving and over 80 cases where breath tests are not practical to provide evidence of blood alcohol concentration.

Both Canadian impaired driving laws are federal criminal law offences. The Crown in Canada can prosecute an impaired operation in either of two ways. Impaired driving and over 80 offences are hybrid offences in Canada. The Crown may prosecute an impaired driving related offence by indictment (roughly similar to a US felony impaired driving) or they may prosecute an impaired driving related offence by summary conviction (roughly similar to a US misdemeanor). The local Crown Attorney must elect whether to proceed with the impaired driving offence by indictment or by summary conviction. Until he or she elects, the impaired driving offence is deemed to be prosecuted by indictment. Most Canadian impaired driving offences are prosecuted by summary conviction.

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

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

If you are charged with impaired driving in Canada your situation is not hopeless. An experienced impaired driving lawyer or impaired driving attorney can challenge the Crown's case in many ways. Although a conviction for impaired driving may automatically result in a criminal conviction, a fine or jail, a prohibition on driving anywhere in Canada, a suspension of driver's licence by the Province, and increased insurance, a conviction for impaired driving is by no means certain. Busy police officers make mistakes on the road, at the police station, in the breath room, and at Court. It is the responsibility of your impaired driving lawyer to make sure that the Crown does not convict you without proving every element of the impaired driving offence beyond a reasonable doubt.

The following are some of the issues that impaired driving lawyers litigate in Canada:

Reason for the Stop in Impaired Driving Law


Intent - Mens Rea in Impaired Driving Law


Necessity in Impaired Driving Law


Operating or Driving in Impaired Driving Law


Care or Control in Impaired Driving Law


Motor Vehicle in Impaired Driving Law


Included Offences in Impaired Driving Law


"Impaired" in Impaired Driving Law


Causation of Bodily Harm or Death in Impaired Driving Law


Use of Physical & ASD Tests Prior to RTC in Impaired Driving Law


Physical Tests in Impaired Driving Law


Coutts,Milne,Huff,White in Impaired Driving Law


"Counsel" in Impaired Driving Law


Right to Counsel in Impaired Driving Law


Intoxication During RTC in Impaired Driving Law


Interpreter During RTC in Impaired Driving Law


Privacy During RTC in Impaired Driving Law


Waiver of RTC in Impaired Driving Law


Counsel of Choice RTC in Impaired Driving Law


Information Component RTC in Impaired Driving Law


Right to Silence in Impaired Driving Law


Search or Seizure in Impaired Driving Law


Reasons Given for Arrest in Impaired Driving Law


Reasonable & Probable Grounds in Impaired Driving Law


Demand in Impaired Driving Law


"Forthwith" in Impaired Driving Law


Refusal to Comply with Demand in Impaired Driving Law


"Reasonable Excuse" in Impaired Driving Law


Approved Instrument in Impaired Driving Law


Notice re Certificate of Analysis in Impaired Driving Law


Certificate of Analysis in Impaired Driving Law


Evidence to the Contrary in Impaired Driving Law


Suitable Sample in Impaired Driving Law


Two Tests in Impaired Driving Law


Fifteen Minutes Apart in Impaired Driving Law


As Soon as Practicable in Impaired Driving Law


Two Hour Limit in Impaired Driving Law


Sentence - Impaired Minimum Penalty in Impaired Driving Law


Sentence - Impaired Curative Treatment in Impaired Driving Law


Subsequent Conviction in Impaired Driving Law


Disclosure in Impaired Driving Law


Unreasonable Delay in Impaired Driving Law


Rules and Forms in Impaired Driving Law


Constitutional Validity of Legislation in Impaired Driving Law


Exclusion of Evidence Remedy 24(2) in Impaired Driving Law


No impaired driving lawyer or impaired driving attorney can guarantee success. Your impaired driving lawyer can, however, make sure that you are not convicted without a fight. Even the most hopeless cases sometimes result in an acquittal. Here are some examples of real impaired driving cases and what happened after negotiation and/or trial.


DWI LAWS, D.U.I. Laws, or driving under the influence laws is, however, an important concept used in the United States.

 

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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.