Ontario Drinking and Driving Offences: Three Possible Charges

Criminal Defence » Impaired Driving Articles » Ontario Drinking and Driving Offences: Three Possible Charges

By Richard AugerPublished On: June 5, 2023

OTTAWA CRIMINAL DEFENCE LAWYER – “Impaired Driving” is a term used frequently on this blog, but it’s actually just one of several charges that can be laid against you when you’re suspected of driving under the influence. The other two are driving “over 80,” and refusing to provide a breath sample.

These charges are distinct from one another – although police can and do lay more than one if the circumstances call for it.

Impaired Driving

Criminal Code of Canada Section 253(A)

Police lay Impaired Driving charges against individuals who show evidence of inebriation (e.g. slurring of speech, bad driving, or lack of balance) while in control of a vehicle. This charge can be laid whether or not there was a breath test prior to the arrest.

“Over 80”

Criminal Code of Canada Section 253(B)

You’ll only be faced with an “Over 80” charge if you took a breathalyzer test and blew over the legal limit, which is 80 milligrams of alcohol per 100 milliliters of blood – hence the title, “Over 80.”

Refusing to Provide a Breath Sample

Criminal Code of Canada Section 254(5)

A Refusal of Sample charge is laid when a police officer demands that you take a breathalyzer test – either on the roadside or at the police station – and you refuse to do so.

As we enter this year’s holiday season, Ontario’s drivers will once again be subject to RIDE tests and other roadside screenings. Make sure you understand your charges if you’re arrested for a DUI.

Contact the Ottawa Criminal Defence Lawyers

If you’ve already been charged with a driving offence in Ontario, it’s important to get advice from an experienced criminal defence lawyer. For more information, contact the Ottawa criminal defence lawyers at Auger Hollingsworth by email [email protected] or by phone at (613) 699-8192.

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Frequently Asked Questions

Do I Need a Defence Lawyer?

The criminal justice process is complex with layers of power and authority: the police, limited in their power by the Canadian Charter of Rights and Freedoms, statutes, and the norms of modern law enforcement; prosecutors who prosecute crimes and who have to balance their desire to “win” against the fairness required by the Charter and statutes; the judges whose attitudes towards criminal defendants can vary broadly; the probation department which reviews the personal history of a defendant, along with any prior criminal record to recommend sentencing, including alternatives to incarceration, probation, prison, and the possibility of parole.

It takes years and many encounters with these players for a criminal defence lawyer to gain the reputation and respect to represent clients most effectively in this matrix. Defending yourself although permitted by law is not smart and very risky, especially when facing prison time, fines, and restitution. Your life and your liberty deserve the best representation. Call Auger Hollingsworth now to schedule a free consultation.

What to Do After I Am Arrested/Charged?

Keep quiet. Do not speak before you confer with an experienced criminal defence lawyer. This is the only way to fully preserve all the rights afforded you under the Canadian Charter of Rights and Freedoms.

For an arrest in Ottawa, if taken into custody, you will be processed at the local jail: photographed, fingerprinted, and searched. Depending on the gravity of the charges, you might be released with a promise to appear which lists the charges and a date to appear in court. For more serious crimes, you might be taken into custody and held until there is a bail hearing. That bail hearing must occur within 48 hours of arrest. If held in custody, before a bail hearing, your family will not be able to visit you. But a criminal defence lawyer can locate you and visit you while in custody in order to prepare for the bail hearing.

Other lesser offences do not require that the police detain the defendant. Instead, you will be issued a promise to appear, listing the charges, and can arrange later for fingerprints and mug shots.

The most important thing to remember, if you are arrested, is to remain silent with everyone, not just the police, but with other prisoners and correctional officers, too.

Are We the Right Fit?

At Auger Hollingsworth, we are committed to providing our clients with the finest quality legal services. That means that we listen to our clients, keep them informed about the nature of the charges, the quality of evidence and the various theories of defence, as developed. We believe that the combination of experience, compassion, and rigorous advocacy is the foundation for effective criminal defence. If you want a lawyer who knows the law and the players, has the experience within the Ottawa criminal justice system, and listens to clients, then consider retaining Auger Hollingsworth. Call today to schedule a free consultation.

Will my license be suspended as a result of my drinking and driving charges?

You will likely receive an automatic 90 day license suspension notice from the police when you are charged. You may not drive during this 90-day period. If you do, you could face new criminal charges.

License suspension is one of several consequences you may face if you are convicted of Over 80, Impaired Driving, or Sample Refusal. The length of the suspension varies depending on your existing criminal record and other factors, but in Ontario the period is typically at least one year long.

Do I Have a Chance of Fighting My Charges, Even if a Breathalyzer was Used?

Even if a breathalyzer test showed that you were over the limit, there are still ways to show either that you were NOT over the limit, or that the breathalyzer test was conducted in violation of your rights.

In any impaired driving case, I always request that the breathalyzer machine’s specifics – its calibration, usage history, previous inspections, etc. – are included in the Crown’s disclosure. When your test was administered, and how it was administered, are also important details that can help you successfully fight your charges.

What is the difference between “Over 80″ and “Impaired Driving” charges?

“Over 80” charges are for cases where a breathalyzer test was conducted, and the breathalyzer’s readout indicated that the driver’s blood alcohol level was over the legal limit in Ontario. “Impaired Driving” charges can occur with or without a breathalyzer test – for example, if the driver had been caught driving erratically on a highway and admitted to drinking multiple alcoholic beverages before driving. Impaired driving charges usually occur if there is physical evidence of inebriation such as stumbling, staggering, slurring, or glassy eyes.

There is a third type of Ontario drinking and driving charge as well: refusing to provide a breath sample. For more information on all three, check out our blog post entitled Types of Drinking and Driving Charges in Ontario.

Will there be a trial for my Ontario drinking and driving case?

There is always a possibility that you may eventually have to attend a trial for your Ontario drinking and driving case.

In many cases, I have successfully fought to have my clients’ charges dropped by the Crown before a trial even takes place. However, sometimes accused individuals are not this fortunate. To be fully prepared for a possible trial, you need a criminal defence lawyer with a great deal of trial experience and courtroom skills.

If I am charged with Impaired Driving, Over 80, or Sample refusal, do I need to hire a lawyer?

In Ontario, drinking and driving constitutes one of the most complicated and challenging areas of criminal law. In order to fight any of these charges, you need a thorough understanding of the Criminal Code of Canada, the Charter of Rights and Freedoms, the Highway Traffic Act, and an up-to-date knowledge of precedents and case law. The law in this area changes all the time.

If you choose to represent yourself in an Ontario drinking and driving case, your chances of success are much lower because chances are you do not have the necessary knowledge of these areas. A top Ontario criminal defence lawyer will be able to make arguments effectively and on your behalf – saving you a great deal of frustration.

What is an interlock ignition device, and will I have to use one if I am convicted?

An interlock ignition device is installed into a vehicle to check the driver’s breath before he or she can start the vehicle. It is a tool used in Ontario to rehabilitate many drivers who are returning to the road after a drinking and driving conviction.

If you are convicted of impaired driving in Ontario, there will likely be a period wherein you will have to use an interlock ignition device before you can go back to regular driving. The driver has to pay for installation and rental fees, which is not cheap – it’s best to try and get your charges dismissed or dropped, so that you can avoid being in this situation.

What happens at my first court appearance? Is it a trial date?

Our clients sometimes wonder if the “first appearance” date on their police documents is their trial date. No trial is held on the first court appearance. Often there are many appearances before even setting a trial date.

The reasons for the multiple court appearances are to permit you to hire a lawyer, to permit the Crown to complete their gathering of the disclosure (evidence) and to provide it to you and your lawyer to review.

Your lawyer will need to review the disclosure to make a recommendation to you about the defences available and the likelihood of success at trial. Your lawyer also needs the disclosure to determine how long the trial will be.

Who attends the first court appearance?

When you retain Auger Hollingsworth, we will generally attend court, or arrange to have an agent do so, on your behalf. These attendances are generally referred to as “remand”. In Ottawa, remand is held at 8:30 am in Court Room #5 of the Ottawa Court House. Other jurisdictions have their own schedules.

Depending on your release conditions, the type of charges and whether or not you have filed a “Designation of Counsel”, you may or may not have to accompany us to court. In many instances the client does not have to attend once we are hired. We will discuss whether you need to attend when we review your case with you.

What if I do not attend court when I am supposed to?

If you do not attend court and are not authorized to send a lawyer in your place, in most cases a warrant will be issued for your arrest.

Will I get a report from my lawyer after every court appearance?

Remand court usually lasts about 1 minute per client. If no additional disclosure is received and no trial date is set, there is often nothing to report.

You can be assured at Auger Hollingsworth that you are notified at every significant juncture of your case. For example:

If the Crown disclosure is complete, we will contact you to arrange to meet and review the evidence;
If we attend a pretrial with the Crown or the Crown and a judge, we will advise you of what was discussed, any plea offers made and any other details. We will also give you advice based on what was discussed at the pretrial;
If our own investigation requires your input, or anything significant is uncovered, we will advise you;
If we have advice for you about treatment or other steps we feel you should take to improve your position we will advise you, make the arrangements where appropriate and possible and follow up with you in relation to these steps;
If your trial date is set, we will contact you to schedule your availability;
Along the way, we will advise you of our views on the likely success of your defences at trial and assist you to make appropriate decisions to achieve the best possible outcome.

At other times, you can always call our office for an update.

Do I have to have my fingerprints taken?

If you are arrested for an indictable offence, the police will want to fingerprint and photograph you. It is likely they will schedule an appointment for you to be fingerprinted.

Your fingerprints will be added to the Canadian Police Information Centre (CPIC).

If you are acquitted, discharged or the charges are stayed or withdrawn against you, you can apply to have these records destroyed. Auger Hollingsworth can look after this step for you, if you desire.

In addition to my criminal charge, I was also given a ticket. Should I pay it?

Make sure your lawyer knows about any tickets you receive related to your criminal charges. You may have received liquor infraction tickets or a Highway Traffic Act ticket.

Your lawyer will provide advice to you about the best course of action. Often it makes sense to defend these charges as well.

My teenage child was charged with a crime, should we bother with a lawyer?

There is a general misconception that criminal findings of guilt before adulthood have no impact once the person becomes an adult. This is simply not correct.

A young person’s record does not cease to exist simply because the individual turned 18. If the person becomes an adult and re-offends before the “non-disclosure period” has passed, the young person’s record can be used in court.

In addition, where the young person becomes an adult and tries to get a job there can be issues. If the job requires security clearance must be granted by the government, a youth’s criminal record may be disclosed.

Private sector employers who wish to see the young person’s record can make a formal request in youth court and convince the judge that they have a substantial interest in the record.

Further, some employers ask candidates to make a request to the police for their youth records. (Young people are able to access their own criminal record.) In that situation, the candidates have a dilemma: they can agree to provide their record or they can refuse and let the employer assume the worst. While technically an employer is not supposed to ask these questions, it is a reality that they do.

Given what is at stake, and given that there are often effective ways to address criminal charges against a young person, it is important to ensure that your son or daughter has excellent legal representation.

What is a pre-trial and will I have one?

In Ottawa and surrounding jurisdictions it is common for the defence and Crown counsel to hold a pretrial to discuss each case before a trial date is set. Sometimes these are face to face meetings, other times they are telephone calls. Plea bargaining typically takes place at these meetings.

Where a trial will likely last a few days, a pretrial with a judge is often required. Practical issues such as the length of time for trial and the number of issues and witnesses are discussed.

The pretrial judge will also often given an opinion of what he or she believes would be the likely outcome at trial. The pretrial judge’s opinion on the merits is not communicated to the trial judge and is not binding.

Clients do not attend criminal pretrials.

What should I wear to Court?

If you attend remand court, you should dress neatly and as conservatively as you can. You do not need to wear a suit, but you should not wear clothing that someone (like the Justice of the Peace) might find offensive. This is not the day to wear t-shirts with edgy slogans, marijuana leaves or gang colours.

If I go to trial, will I have to testify?

A person accused of a crime does not have to testify at his or her own trial. No-one can force you to take the stand. However, there are times when the best chance for success at trial requires a client to testify. This is not a decision that is ever taken lightly at Auger Hollingsworth. If our advice is that you testify, we will spend the time necessary to help you prepare.

I am innocent, why can't I just tell the police my side of the store?

Our experience tells us that clients do best when they are polite to the police but do not tell their side of the story at the police station, either before or after they are arrested. When the police show up, you are upset and not necessarily “at your best”.

There are times when our clients DO talk to the police. However, before our clients engage in these types of discussions, Auger Hollingsworth puts arrangements in place to ensure that our clients can never be prejudiced by what is said.

If you have an alibi defence, we will disclose this defence to the Crown and police when the time is right, in a way that cannot prejudice you.

It is an enormous risk to think you can talk your way out of trouble with the police.

I was released from custody with a curfew that conflicts with my work schedule, am I stuck?

It is often possible to vary bail conditions where there is a legitimate reason to do so. Sometimes the Crown will consent to the change. Other times there will be a contested hearing. Either way a bail variation must be approved by the Court.

It is important to follow your conditions until they are actually changed. Otherwise you could be charged with breaching your conditions. A “breach” charge is another Criminal Code charge that could result in a criminal record and will often make it more difficult to resolve your case favourably.

If I am convicted, will I go to jail?

There are a wide range of sentences that can follow a criminal conviction. The type of sentence that is possible depends on the offence. Some sentence options (such as a fine alone) are available for some offences but not others.

Sentences available in Canadian Courts include:

Absolute or Conditional Discharge – A discharge is an option available to a court when an individual pleads or is found guilty of certain offences. It is an option that serves as an alternative to convicting the accused. Where the discharge is “conditional”, the person must satisfy the terms prescribed in a probation order.
Suspended Sentence – The court has the option to suspend the passing of sentence on an individual who has been convicted of an offence where there is no minimum punishment prescribed by law. In these cases the court considers the age and character of the offender, the nature of the offence as well as the circumstances surrounding the commission of it.
Probation – Probation is a community sentence option available to the court. A term of adult probation usually accompanies a suspended sentence or a conditional discharge and results in an offender being subject to court ordered conditions to be adhered to as part of the sentence. The conditions are set out in the probation order and may include the requirement to report to a probation officer.
Resitution – There may also be an order for “restitution”—that is, the person must make a payment to someone who has suffered loss because of his or her acts.
Fine – There can be an order made requiring the person to pay a fine upon conviction. This may be combined with other sentences.
Conditional Sentence – A conditional sentence is an option available to a sentencing court when an individual is convicted of an offence that does not call for a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years. The sentencing court can direct that the term of imprisonment be served in the community subject to the offender complying with a number of conditions.
Intermittent Sentence – An “intermittent sentence” is an adult custody sentence option that is not satisfied by remaining incarcerated for consecutive days. Instead the person is confined on certain days (usually weekends) that are interspersed with periods in the community. While in the community during the course of the sentence, the person is required to comply with the conditions of a probation order.
Custodial Sentence – This is a sentence that will be served in either a provincial or federal institutions. Sentences of less than two years are served provincially. Longer sentences are served federally.

Am I eligible for a diversion program that will take me out of the criminal justice system?

Various alternative programs exist across Canada for persons accused of a crime. We can help you determine if you are eligible for one of these programs.

Examples of these programs include:

Even where, strictly speaking, no established program applies, in appropriate cases Auger Hollingsworth always seeks to resolve charges in a way that does not involve criminal sanctions. Speak to us about your options.

How much will my case cost in legal fees?

Your initial consultation with our firm, either by telephone conference or in person, is free.

In most cases we will ask you for an initial retainer (deposit) when you hire us. We will discuss the initial retainer with you during our first meeting. Factors that affect the amount we request for fees are the complexity of the case and the amount of Crown disclosure (evidence) we expect to receive. For the most part, this relates to the type of charges.

If you desire, we will provide you with a fee quote to take the case to trial once we have received all of your disclosure. At that time, we are in a position to provide an accurate estimate of what is involved in your case.

We understand that you probably did not budget for legal fees. For that reason, we will assist you with a payment plan to ensure that your fees are paid prior to trial.

Do you take Legal Aid?

In limited circumstances, we will accept payment by Legal Aid certificate. Call us at (613) 699-8192 and speak to us about your case and we will let you know.

What is the difference between an ''indictable offence'' and a ''summary conviction'' offence?

Indictable offences include the most serious offences in the Criminal Code. Conviction of an indictable offence will likely expose you to a greater penalty.

If you are prosecuted by indictment, you are entitled to trial by jury for most, but not all, offences. You are also eligible for a preliminary hearing if you and your lawyer so wish.

Summary conviction offences include the most minor offences in the Criminal Code. Usually, but not always, summary conviction offences are punishable by a fine of up to $2,000 or six months’ jail or both.

There is also a category of offences called “hybrid offences”. Many offences can be prosecuted either by summary conviction or indictment. The Crown elects the mode of prosecution.

Hybrid offences are considered indictable until the Crown makes its election. This has implications at remand court since you must either be present in court or have signed a designation of counsel.

Why is my case taking so long to get to trial?

It is nerve wracking to wait until your trial date which is always months and sometimes years after the dates of any alleged offences.

For less serious offences, requiring a one day trial, for example, it is not unusual for a trial date to be 12 months after the date the charges are laid. The delay is often caused by any of the following factors:

The Crown is delayed obtaining some or all of the evidence from the police;
The officers are unavailable for trial dates because they have other court commitments or are on leave at the time defence counsel is available;
Scientific testing of evidence is delayed;
There are no judges available to hear your trial before a certain date because the Courts are busy.

You do have a constitutionally-protected right to a trial without unreasonable delay. Whether the delay is unreasonable in your situation will depend on how long the wait has been, what the reason is for the delay and how serious or complex the charges are. At Auger Hollingsworth we keep careful watch over how long our matters take to go to trial. If the delay is excessive, we bring proceeding to enforce our clients’ Charter rights.

I was convicted of a criminal offence in the past. Can I get a pardon?

Pardons are granted by the National Parole Board of Canada. When you become eligible for a pardon depends on the type of offence you were charged with (summary or indictable) and the severity of the sentence imposed on you.

Currently, we understand that the pardon process can take from 18 months to 36 months from the period of eligibility due to backlog. As a result, it may be wise to begin the process as soon as you are eligible to do so.

Auger Hollingsworth does provide help with pardon applications.

I was convicted of a criminal offence in the past. Can I get a pardon?

If you live in Ottawa and you want a copy of your criminal record, you should proceed through the Ottawa Police Service. Click here to see the process.

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Choosing an Ottawa criminal defence lawyer can help preserve your rights and defences to criminal charges. At Auger Hollingsworth, we offer a free consultation session during which you can assess our lawyers and we can assess the strength of the prosecution’s claims. During this free consultation, we will:

Review the criminal charges and/or the request for appearance or subpoena for documents, and any police reports and other documents.
We will listen to your story and map out the areas for investigation, begin to compile a list of witnesses, and compose the various strategies the facts and law offer.
We will provide you with an estimate of the cost of legal services.
If we are unable to provide you with a defence, we will refer you to other counsel.

Call (613) 699-8192 today to schedule a free consultation with the knowledgeable Ottawa criminal defence lawyers at Auger Hollingsworth.

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