New laws were enacted in December of 2018 imposing stricter rules and punishment surrounding drinking and driving offences. This blog will focus on the defence for the offence of operation while impaired under section 320.14 (1) of the Criminal Code, which states as follows:
Operation while impaired
320.14 (1) Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
In a nutshell, section 320.14(1) of the Criminal Code makes it an offence for a person to operate a motor vehicle while impaired by drug or alcohol or a combination thereof within two hours after ceasing to operate the motor vehicle. There is a defence available to this criminal offence. Whether the defence is applicable or not in your case will depend on the facts. That is where the criminal defence lawyers at Aitken Robertson come in and advocate for our clients.
Section 320.14 (5) of the Criminal Code refers to the defence to the charge or care & control or impaired operation of a vehicle. It states as follows:
Exception — alcohol
320.14 (5) No person commits an offence under paragraph (1)(b) if
(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
So what does the above-noted section on defence mean? Well, for example, a witness may call the police to say that they have observed an impaired driver; let’s call him Driver A. Driver A was driving after having one beer. Now, as you probably already know, one cannot drive with a Blood Alcohol Concentration (BAC) level of 80 or above. Let’s say that Driver A was under the BAC of 80 while he was driving his car. He goes home and continues to enjoy wine and cheese. Approximately half an hour later, the police arrive at his doorstep and make a legal demand for a breath test. Driver A provides suitable breath samples and fails the test. Driver A is then taken to the police station for further breath samples that provide readings. These readings are well over a BAC of 80.
The Burden of Proof
The Crown has the burden to prove that at the time of Driver A’s driving, his or her alcohol level was over 80. The role of the criminal defence lawyer is to challenge the reading at the time of driving. There is a mathematical formula involved that helps provide a reasonably accurate estimate of one’s BAC at a particular time. That is how our lawyers at Aitken Robertson can help you if you are facing a similar situation. If we are able to raise doubt in the Crown’s case that Driver A’s BAC was not 80 or over at the time of driving, then the Crown will not have a reasonable likelihood of conviction and will likely withdraw the charges. A number of additional factors are also considered. That is why it is important that you contact one of our criminal defence lawyers to learn how we can assist you with fighting your drinking and driving charge.