Impaired Driving

Criminal Code of Canada section 253

Every one commits an offence of Impaired Driving 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,

  1. While the person ability to operate the vehicle vessel, aircraft or railway equipment is impaired by alcohol or a dug; or
  2. having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood thereby commiting the offence of impaired driving.

This section makes it an offence for a person to operate a motor vehicle or vessel, operate or assist in the operation of an aircraft or railway equipment or to have care or control of such a motor vehicle if that persons ability to do so is impaired by alcohol or a drug, or if that person has a blood alcohol limit in excess of 80 milliliters.

The fact that the motor vehicle was not in motion is not a defense to the charge of impaired driving.

An intention to drive is not an element of the the care or control offence or impaired driving.

Care or control while impaired may be exercised without such intent or where the accused performs some act series of acts involving the use of the car, its fittings or equipment, whereby the vehicle may unintentionally be set in motion creating the danger this section is designed to prevent.

To convict the accused of the care or control offence, or impaired driving, it is not necessary to establish some overt action on the part of the accused to indicate that he was involved with the vehicle in a way as to cause danger to the public through the impaired driving. Only that while in the care or control, or while driving or operating the motor vehicle the accused ability to do so was impaired due to an alcohol or drug

Where the accused had the immediate capacity and means of operating the vehicle, there existed the risk that he would put the motor vehicle in motion and become a danger to the public, commiting the offence of impaired driving, even though at the time he was found by the police he was asleep in the front seat of the vehicle.

Proof of Impairment or Impaired Driving

The Criminal Code of Canada does not prescribe any speacial test for determining impairment, or impaired drivig such as a "marked departure" from normal behavior. If the evidence of the police officer or witness describes any level of impairment ranging from slight to great, the offence of impaired driving may be made out.

It cannot be assumed, however, that where a persons"s functional ability is affected in some respects by the consumption of alcohol, his ability to drive is also automatically impaired.

Where the proof of impaired driving consists of observations of conduct, in most cases if the conduct is a slight departure from normal conduct, it would be unsafe to conclude the the accused's ability was impaired by alcohol.

An accused may be conviction of this offence although his impaired driving condition is due partly to fatigue and partly to the consumption of alcohol

The court is not entitled to take judicial notice that at a certain blood-alcohol level the accused's ability to driver would have been impaired

On a charge of impaired driving the trial judge can take into account the "Certificate of Analysis" of a police breathalyzer technicians evidence that prior to being stopped the accused most likely had consumed alcohol. In doing so the judge was not need to draw on any technical or special knowledge of the impaired driving.


Intent of the Impaired Driving

The issue of whether the accused intented to commit act of impaired driving and to the state of being impaired by alcohol or a drug is an essential ingredient of the offence of impaired driving.

That element of impaired driving need not necessarily be present in relation both to the act of impaired driving and to the state of being impaired in order to make the offence complete.

A man who becomes impaired as the result of take a drug on medial advise with knowing its effect cannot escape liability if he becomes aware of his impaired condition before he started to drive this car, just as a man who did not appreciate his impaired condition when he started to drive cannot escape liability on the grounds that his lack of appreciation was brought about by voluntary consumption of liquor or drug.

The intent, called "mens rea" of the care or control offence is the intent to assume care of control after the voluntary consumption of alcohol or a drug, and the act of assumption of care or control when the voluntary consumption of alcohol or a drug has impaired the ability of the driver.

Drunkness is not a defense to the charge of impaired driving or care or control. The only mental element involved in the offence is voluntary intoxication.

Impaired Driving does not mean that the driver was drunk or intoxicated, only that their ability to operate the vehicle was impaired due to the consumption of an alcohol or drug.

A conviction for impaired driving, drive over 80, care or control, or refuse breath sample means;

  1. the loss of driver's licence for at least one year,
  2. a criminal record and Insurance increase of thousands of dollars per year
  3. mandatory alcohol and drinking and driving counseling
  4. If your job involves driving, you may lose your livelihood. The cost to reinstate your drivers licence after conviction is approx $3500.00