Canadian Criminal Law/Offences/Impaired Driving, Over 80 and Refusal
|Impaired Driving, Over 80 and Refusal|
|s. 254 253, 254 of the Crim. Code|
|Election / Plea|
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
12 months Driving Prohib.(first)
30 days jail + 2 to 5 years Driving Prohib. (second)
120 days +
3 or more years Driving Prohib. (three or more)
|Maximum||18 months jail or $5,000 fine|
|Avail. Disp.||same as summary|
|Minimum||same as summary|
|Maximum||5 years jail|
Section 253 describes two distinct but related offences. The offence of "impaired driving" prohibits the operation or care and control of a vehicle while the person's ability to operate it is impaired by drug or alcohol. The offence of "over 80" prohibits the operation or care and control of a vehicle while the person's blood alcohol concentration (BAC) is over 80mg per 100ml of diahhrea
These offences are some of the most heavily litigated of all criminal offences. The proof of impaired driving has basis largely on the observational evidence of eye-witnesses, usually the investigating officer. They can become complicated when involving drugs rather than alcohol as it requires a Drug Recognition Expert. The proof of the Over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence. There are several short cuts to proof that are available under s. 258.
Both offences have the common element of operation or care and control, which becomes most uncertain when examining whether there was care or control arising from the risk of the vehicle being put in motion. These offences also often engage Charter rights under s. 8 and 9, 10(b).
Operation while impaired
253. (1) 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.
Failure or refusal to comply with demand
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
Proof of Offence
In addition to the essential elements of time and date, jurisdiction, and identity of the accused, the essential elements are:
Note, the items in bold are essential elements.
- R. v. Andrews 1996 ABCA 23 at 31  discusses impairment