Drinking & Driving 10 Most Frequently Asked Questions:
- What is a charge of over 80?
If you have been charged with ‘over 80’, this means that you are being accused of having been in the care or control of a motor vehicle while your blood alcohol concentration exceeded the legal limit of 80 milligrams of alcohol per 100 millilitres of blood. It does not matter that your ability to drive may not have been affected by the alcohol. The only thing that the State needs to prove in order to obtain a conviction is that your blood alcohol concentration was above the legal limit at the time you were driving or in the care or control of a motor vehicle. This is typically achieved through the introduction into evidence of the breath test results that the police obtained from you at the police station.
- What is a charge of impaired driving?
If you have been charged with ‘impaired driving’, this means that you are being accused of having been in the care or control of a motor vehicle while your ability to do so was affected or impaired by alcohol. You can be convicted of this offence even if your blood alcohol concentration was below the legal limit or the State is unable to prove that your blood alcohol concentration was above the legal limit. In other words, what the State needs to demonstrate is that you had alcohol in your system at the time you were driving and that it affected your ability to drive. The type of evidence that is typically relied on to prove this charge is observations of driving, observations of physical behaviour such as speech, demeanour, walking, standing and so forth, the smell of alcohol on your breath and any breath test results that were obtained. Again, in proving this charge, the State need not demonstrate that your blood alcohol concentration was above the legal limit.
- What does it mean to have the care or control of a motor vehicle?
The Criminal Code defines the offences of ‘over 80’ and ‘impaired driving’ in relation to having ‘care and control’ of a motor vehicle, which is a much broader concept than driving alone. The Criminal Code goes so far as to deem a person to be in care and control of a vehicle if they are found to be occupying the driver’s seat. This means for example, you could be convicted of drinking and driving if a police officer found you sleeping in the driver’s seat of a parked car, even if you had not driven the vehicle or even placed the vehicle into the drive gear.
- How do I know what kind of evidence the police have against me?
All relevant evidence against you must be disclosed to you by the Crown (the prosecutor). This is referred to as disclosure and is typically provided at the commencement of the court process.
- My breath test results were over the legal limit. Is there any chance I can beat the charges?
Yes. Many defences exist that can either (a) lead to the exclusion of the breath test results, (b) create a situation whereby the Crown is unable to prove your blood alcohol concentration at the actual time of driving versus the actual time of testing or, (c) reveal a reasonable doubt as to the reliability of the breath test results. For a fuller discussion of this topic see the article entitled, “How drinking and driving charges are defended”
- How long will it be before my case is resolved?
There are numerous factors that can affect the time period before your case is completed. These factors include whether you are pleading guilty or proceeding to trial, the complexity of your case, whether there was any delay in hiring a lawyer, whether there was any delay in obtaining disclosure, whether the particular courthouse where your matter is being prosecuted is experiencing any delay or backlog, and various other factors. In the Greater Toronto Area, cases that proceed to trial can take anywhere from 4 months to nearly a year before they are concluded.
- Can we work out a deal or a ‘plea bargain’ with the prosecutor for a lesser, non-criminal charge?
In most instances the answer is ‘no’. There are an extremely limited set of circumstances in which the Crown will offer a plea to a non-criminal offence such as careless driving and agree to withdraw the criminal charge.
- What are the consequences of being convicted of drinking and driving?
In Ontario, upon conviction for either ‘impaired driving’ or ‘over 80’ there is a minimum fine of $1000 plus a minimum driving prohibition for a period of 12 months.
- Should I go to trial or plead guilty?
Pleading guilty is not a decision you should rush into because once it is done, there’s really no turning back. It is better to consult with a lawyer about your options and educate yourself about how best to proceed. There are many factors to weigh in this decision and it should not be hastily or prematurely made.
- If I’m found guilty of ‘impaired driving’ or ‘over 80’, will I end up with a criminal record?
Yes. In Ontario, a finding of guilt for either offence will necessarily lead to a conviction and you will end up with a criminal record.