How are impaired driving offences grouped in the Criminal Code?
Since 18 December 2018, the federal impaired driving offences have been set out in Part VIII.1 of the Criminal Code. They fall into four broad groups.
Impairment offences. It is an offence to operate a vehicle while your ability is impaired to any degree by alcohol, a drug or both. The Crown proves an impaired driving charge through evidence of impairment, such as driving behaviour and officer observations, rather than a number. Drug-impaired driving sits in this group too, along with separate offences for prescribed blood drug levels, such as THC of 5 ng/mL or more within two hours.
Blood alcohol offences. It is an offence to have a blood alcohol concentration of 80 mg or more per 100 mL of blood within two hours after you stop operating. This is the over 80 offence, and it does not require proof that you were impaired.
Refusal offences. It is an offence to fail or refuse, without reasonable excuse, to comply with a lawful demand for a breath, blood, oral fluid or drug evaluation sample. A refusal charge carries a minimum fine of $2,000 on a first offence.
Harm offences. When someone is hurt or killed, the offence becomes far more serious. Impaired driving causing bodily harm carries a maximum of 14 years by indictment, and causing death carries a maximum of life imprisonment.
"Operation" is broader than driving. A person in the driver's seat is presumed to have care or control of the vehicle, even if it was parked, unless they show they did not intend to set it in motion.
Why do I have two charges from one traffic stop?
It is common to receive two charges from a single incident: impaired operation and over 80. They describe the same driving but are proven in different ways. The impaired charge relies on how you drove and how you appeared, while the over 80 charge relies on the breath or blood results.
That is why each charge needs its own answer. A Charter breach that leads a court to exclude the breath results may end the over 80 count, while the impaired count still depends on what the officer saw and recorded. A strong defence looks at both from the start.
First offence or repeat offence?
The Criminal Code sets minimum penalties that increase with each prior conviction. A first DUI offence carries a minimum fine of $1,000 and a driving prohibition of one to three years. A second DUI offence carries a minimum of 30 days in jail, and a third or subsequent offence carries a minimum of 120 days in jail.
Ontario's licence consequences escalate as well: a one-year suspension for a first conviction, three years for a second, and a lifetime suspension for a third, which may be reduced after 10 years if conditions are met. Our page on penalties for DUI in Ontario sets these out in full.
What should I do next?
Start with the charge listed on your release papers, then read the page for that offence. A few steps help in every case:
- Respect the 90-day licence suspension and any release conditions. Driving while suspended creates a new charge.
- Write down what happened at the stop while you still remember it, including times and what officers said.
- Do not discuss the details with anyone except your lawyer.
- Keep your release documents, suspension notice and impound papers together.
- Get legal advice before your first court date.
Our guide to the first 72 hours after a charge covers these steps in more detail, and our defence guide explains how we challenge evidence. Two articles help with the questions people ask first: DWI vs DUI clears up the terminology, and how many drinks is 0.08 explains the number on your paperwork. For a free, confidential review of your charge, speak with our Toronto DUI defence team.