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If you have been charged with driving with a suspended licence in Ontario that had been suspended due to driving-related Criminal Code offences such as drinking and driving (as opposed to having had your licence suspended for a Highway Traffic Act offence), you will face the following penalties:

  • Your vehicle will be impounded for a minimum of 45 days.
  • On conviction, you are liable for a fine between $5,000 and $25,000 for the first offence, followed by a fine between $10,000 and $50,000 for each subsequent offence within five years.

There will also be another licence suspension under the Ontario Highway Traffic Act: one year for a first offence and two years for subsequent offences and up to two years in jail and a three-year licence suspension under the Criminal Code.

If you are charged with driving with a licence that had been suspended for a Highway Traffic Act offence, you are facing a seven-day vehicle impoundment, a fine of between $1000 and $5000 for a first offence and between $2000 and $5000 for a subsequent offence within five years. You may also get up to six months in jail or a fine or both. As well, six months will be added to your current suspension.

For detailed information about immediate driver’s licence suspension under the HTA for driving-related Criminal Code convictions, please refer to “Mandatory HTA Suspensions.”

A conviction for driving under suspension will be kept on record for at least five years. Your insurance premiums will be increased for several years and you might even be disqualified from your existing insurance coverage. For information about how traffic tickets impact your insurance premium, please refer to the section  “Insurance Premiums.”

It is always recommended to fight the charge. Although this offence is one of absolute liability, meaning you do not have to intend to do the act to be found guilty, and due diligence is not available as a defence, the prosecution still needs to prove the violation beyond a reasonable doubt. There are some general defences available on a case-by-case basis. For detailed information, please refer to the section “General Defences for Traffic Tickets”.

Driving under “Prohibited Range” (BAC: > 0.08) (s.48.3)

If you drive a vehicle while your blood alcohol concentration (BAC) is above 0.08 (Prohibited Range), your driver’s licence will be suspended at the roadside for a period of 90 days under the Highway Traffic Act. The suspension takes effect from the time notice of the suspension is given by the police. You should be requested to surrender your driver’s licence to the officer. The vehicle will be impounded for seven days on the roadside.

On conviction for impaired driving under s.253 of the Criminal Code, you will immediately receive a suspension of one year for the first conviction, three years for the first subsequent conviction, indefinite suspension for additional subsequent convictions under the HTA. The vehicle may be impounded by a court order for three months.

This is a Criminal Code offence and a prosecution could be initiated under the Criminal Code against you later. The following is a further explanation about the penalties both under the HTA and Criminal Code:

Driving while BAC: > 0.08 (Impaired Driving) Penalty (HTA) Penalty* (Criminal Code) 
Licence Suspnesion (Roadside)Licence Suspension (on Conviction)FineImprisonment (Summary Conviction) Interlock Requirements Will Apply
1 st Conviction90 Days1 yearMore than $1,000-
2 nd Conviction90 Days3 Years-30 Days
Subsequent Conviction90 DaysIndefinite30 days aa120 Days

* the penalty under the Canadian Criminal Code: only for where there was no bodily harm or death. Determining a subsequent conviction: within a 10-year period.

If you are convicted, you can get your suspended licence back sooner by attending the Reduced Suspension with Ignition Interlock Conduct Review Program, effective since August 3, 2010. For detailed information about how this program works, please refer to “Reduced Suspension with Ignition Interlock Conduct Review Program”.

You will be assigned to the conduct review programs – Back on Track and the Ignition Interlock Program. For more information about the programs, please refer to “Additional Consequences Regarding Drinking and Driving”.

The Administrative Monetary Penalty ($150) will also need to be paid before the reinstatement of your driver’s licence.

Driving under the “Prohibited Range” has very serious legal and financial consequences both under the HTA and Criminal Code. The conviction will be kept on your HTA record for, at least ten years and on your criminal record until you receive a pardon. It will dramatically increase your Insurance Premiums.

The following table focuses on the financial consequences you may face before and after you are convicted:

Driving while BAC: >0.08
Financial Consequences
Suspension (Roadside Impoundment (Roadside) and Tow Administrative Monetary Penalty Back on Track Ignition Interlock
1st 2nd 3rd
Length 90 days 7 days 3 parts (8 or 16 hours) 1 year 3 years Indefinite
Estimated Cost Tow and Impound $150 $578 Installation: $155De-Installation: $50 + taxMonthly: $105
Estimated Cost (Total) $800 $150 $578
Increased Insurance Estimate: initially 2x current rate.
Minimum of $1,000 fine under the Criminal Code conviction, 15% or more Fine Surcharge.

Under the HTA, the 90-day Administrative Driver’s Licence Suspension can be appealed under the following grounds:

  1. you are not the person whose breath or blood was tested;
  2. you failed to give a sample of breath or blood due to a medical reason and have proof of same.

The best thing to do is to choose either to drink or to drive, but not both. In reality, good people make mistakes. So, once you made a mistake, it is always advisable to obtain some legal advice. With experienced legal representation, your rights will be better protected. By better understanding the procedure, you could get the suspended driver’s licence back sooner.

Driving under “Warn Range” (BAC: 0.05 to 0.08) (s.48)

Driving while the BAC is in the “Warn Range” is a serious issue under the Highway Traffic Act. You will face a roadside suspension for three days for the first time, seven days for the second time within a five-year period and 30 days for the third time and other subsequent offences with a five-year period.

Administrative Monetary Penalty in the amount of $150, mandatory alcohol education program, or longer time suspension and other consequences you will bear for subsequent offences.

The following table gives a detailed explanation about penalties and financial consequences:

Diving while BAC: 0.05 to 0.08 First Time Second Time Third Time Subsequent Offence
Roadside Suspension 3 days 7 days 30 days 30 days
Alcohol Education Program: Education Course ($178) Treatment Course ($178) Treatment Course ($178)
Ignition Interlock 6 months
(Installation: $125
De-Installation: $25
Monthly: $95)
6 months
(Installation: $125
De-Installation: $25
Monthly: $95)
Medical Evaluation Mandatory
Administrative Monetary Penalty $150 $150 $150 $150
Estimated Insurance Increase ($3,000 per year for 3 years) $9,000 $9,000 $9,000 $9,000
Total Estimated Cost (Excl. Taxes) $9,150 $9,328 $10,048 $10,048
A subsequent offence is an offence with a period of five years.
Other penalties such as discretionary suspension, fine, etc may be imposed by the court.

These roadside licence suspensions are short-term suspensions and not subject to an appeal. Suspensions will be recorded on the driver’s record. For up to five years, these roadside suspensions will be considered when determining consequences for subsequent infractions.

Recent Successes With Impaired Driving Charges

Acquittal: Care or Control Over 80 (Case Study)

To overcome a Care and Control Over 80 charge, we either: had to show that Mr. C. was not, in fact, in care or control of the vehicle; or,  have the evidence of the breath readings showing the high BAC, excluded.
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Acquittal – Over 80mg, Failing to Have Insurance Card, & Passing by Driving off Roadway (Case Study)

The principle issue in the case revolved around the roadside breath alcohol screening device test and whether the officer had the necessary grounds to make the demand that Mr. B. provide a breath sample into that device.
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Acquittal: Over 80mgs (Case Study)

When stopped for a suspected impaired driving or over 80 offence, the police are required to make a demand for the suspect to provide a suitable sample of their breath. This is required "as soon as practical." If there is a delay in demanding, or acquiring, a suitable sample of your breath, the police are required to both read and let you exercise your legal rights.
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Acquittal: Over 80 (Case Study)

Over 80 cases are highly technical and involve a mixture of statutory and constitutional requirements. Failing to meet, or the violation of, those requirements often results in evidence being excluded and an acquittal entered.
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Acquittal – Care or Control of Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood (Case Study)

At trial we would attempt to show that there had been breaches of Mr. M.’s Charter rights by the police that were serious enough to warrant the exclusion of the breath sample evidence. We would also challenge the reliability of the officer’s account, especially with respect to the timing of the taking of the breath samples.
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Charges Withdrawn – Impaired Driving, Over 80 mg, and Dangerous Driving (Case Study)

The goal was to avoid a criminal conviction. Mr. C. was initially charged with five offences, four of which were criminal offences. But, because he chose to fight the charges by trial, the Crown added a sixth criminal charge, Dangerous Driving. At trial he would have to beat all five of the criminal charges to avoid a criminal conviction.
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Acquittal – Refuse or Fail to Provide Breath Sample (Case Study)

We would take a two-pronged approach to the trial. We would file a Charter challenge and argue that sections 8 (the right to be secure against unreasonable search and seizure) and 9 (the right not to be arbitrarily detained) of the Canadian Charter of Rights and Freedoms had been breached. In particular we would argue that the investigating officer did not have the necessary reasonable suspicion to demand the breath sample. If successful on the Charter challenge, we would seek to have all the evidence excluded under s. 24(2) of the Charter. The second prong to our approach would be to attack the Crown’s case on an evidentiary basis.
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Impaired Driving and Over 80 Withdrawn – Plea to Careless Driving (Case Study)

Mr. H. had been charged with Over 80 and with impaired driving. While the officer had dropped the “refuse” charge, it was possible that the charge could be resurrected. It was also possible that a dangerous driving charge could be added. A trial would be risky, especially if we had to face four charges rather than two. We had to prevent these additional charges being added to the existing two charges and if possible to avoid a trial in this case. We started by filing a Charter challenge to argue that Mr. H.’s rights had been infringed by police and then we approached the Crown to attempt to negotiate a plea to the non-criminal offence of careless driving which would not leave Mr. H. with a criminal record.
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Acquittal: Over 80 (Case Study)

This would be a very technical case which would turn on a question of minutes. The principle issue in the case would have to do with the second roadside breath alcohol screening device test. We would raise a Charter challenge and argue that there had been breaches of Mr. G.’s rights by the police under s. 9 (the right not to be arbitrarily detained) and s. 10(b) (right to counsel) of the Charter, in that he had been detained for too many minutes at a crucial point during the RIDE stop, without being given the option to exercise his right to counsel. We would then argue that the breaches of his Charter rights were serious enough to warrant the exclusion of the breath sample evidence – without which there could be no conviction for the offence of “Over 80.”
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Acquittal: OVER 80 mg (Case Study)

Mr. J.G. was charged with “Over 80,” which is a criminal offence. He had a prior drinking and driving conviction which meant that if he pleaded guilty or lost at trial, he was looking at a minimum of 30 days jail, a three-year licence suspension, a further three years after that of driving with the ignition Interlock device, a mandatory alcohol education/treatment program, a fine and a mandatory victim surcharge. The goal was to fight and beat this charge.
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Impaired Driving and Over 80 Withdrawn – Plea to Careless Driving (Case Study)

Mr. H. had been charged with Over 80 and with impaired driving. While the officer had dropped the “refuse” charge, it was possible that the charge could be resurrected. It was also possible that a dangerous driving charge could be added. A trial would be risky, especially if we had to face four charges rather than two. We had to prevent these additional charges being added to the existing two charges and if possible to avoid a trial in this case. We started by filing a Charter challenge to argue that Mr. H.’s rights had been infringed by police and then we approached the Crown to attempt to negotiate a plea to the non-criminal offence of careless driving which would not leave Mr. H. with a criminal record.
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Acquittal – Care and Control Over 80 (Case Study)

There is a presumption in Canadian criminal law that a person found in the driver’s seat of a vehicle is in care and control. This presumption may be rebutted with evidence. To get such evidence, we would call the bar owner and staff as witnesses who would corroborate Mr. T.G.’s story that he had that night taken steps to not drive, which included getting permission to leave his vehicle and asking that a cab be called.
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Care and Control / Over 80 mg Dismissal (Case Study)

Mr. K.M. was a young man, a university graduate with no criminal record. He had a bright future ahead of him until this happened. A criminal record would likely destroy his future job prospects in the particular profession for which he had trained. He could not afford to plead guilty; he had to beat this charge.
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Acquittal – Care or Control of a Motor Vehicle While Impaired / Over 80 / Sexual Assault (Case Study)

Late one summer night, police received a call about a woman who had run into a Tim Horton’s saying that she had just been sexually assaulted by a man who was at that moment outside the store. Some of the Tim’s employees surrounded the man’s vehicle and prevented him from leaving. The man himself also called police, reporting that people were blocking his vehicle and he didn’t know why. But, when police arrived, he was no longer there. The police continued down the street, caught up with the man, Mr. Hd., who was driving slowly and pulled him over. The officers then thought that they smelled alcohol on Mr. Hd.’s breath and so demanded that he blow a sample into the roadside breath alcohol screening device. He registered a fail and was transported to the station to provide further samples in to the breath testing machine. Those samples registered readings over the legal limit for blood alcohol. Mr. Hd. was charged with “Impaired,” “Over 80” and Sexual Assault, following an alleged altercation with a female in a parking lot.
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Dismissal – Impaired / Over 80 (Case Study)

Sometime very early one mid-August morning, the Ministry of Transportation cameras capture a scene of a male talking on his cell phone sitting on the grass beside a vehicle in the ditch on the shoulder of Highway 401. A witness had reported seeing a car that had been in an accident. Ambulance and police were dispatched to a personal injury single motor vehicle collision. When police arrived they found a young man fitting the description from the camera footage. The young man said he that he had fallen asleep on his way home from his girlfriend’s. He did not need the ambulance. The police, believing that they observed signs of intoxication, demanded that he give a breath sample into the roadside alcohol screening device. He did so and registered a “fail.” He was arrested. The handcuffs that they put on him were tight and hurt his wrists. Later at the police station, he gave a breath sample into the device there and registered a blood alcohol level above the legal limit. The police charged him with impaired driving and with “Over 80.”
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Acquittal – Operation of Motor Vehicle While Impaired by Alcohol (Case Study)

Sometime very early one mid-August morning, the Ministry of Transportation cameras capture a scene of a male talking on his cell phone sitting on the grass beside a vehicle in the ditch on the shoulder of Highway 401. A witness had reported seeing a car that had been in an accident. Ambulance and police were dispatched to a personal injury single motor vehicle collision. When police arrived they found a young man fitting the description from the camera footage. The young man said he that he had fallen asleep on his way home from his girlfriend’s. He did not need the ambulance. The police, believing that they observed signs of intoxication, demanded that he give a breath sample into the roadside alcohol screening device. He did so and registered a “fail.” He was arrested. The handcuffs that they put on him were tight and hurt his wrists. Later at the police station, he gave a breath sample into the device there and registered a blood alcohol level above the legal limit. The police charged him with impaired driving and with “Over 80.”
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Acquittal – Care or Control While Impaired and Over 80 (Case Study)

Mr. H. Was found sitting in the driver's seat with his head slumped to one side. He appeared to be sleeping or passed out. The keys were in the ignition and the vehicle was not running but the ignition was switched on. The officer spoke to Mr. H. and asked him to exit the vehicle. Once outside, the officer noted an odour of alcohol on Mr. H.’s breath.
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Acquittal – Impaired and Over 80 (Case Study)

The officer formed a suspicion that Mr. T. had alcohol in his body and told him that he would require him to give a screening sample of his breath. The officer then went off to find a roadside breath screening device.
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Acquittal – Care or Control Over 80 (Case Study)

In the very early, dark hours of a winter’s morning, a white Toyota crashed into a hydro pole, then into a mattress and box spring that had been left on the curb, and then a second hydro pole. Debris was scattered all over the road and the lawns of the nearby houses. The mattress was halfway up a tree. Another driver witnessed the Toyota hit and wrap around the second hydro pole.
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Impaired, Over 80 & Novice Driver BAC Over 0 (Case Study)

About an hour after dawn on a clear, dry Sunday morning in May, in the heart of Muskoka, police were dispatched to a vehicle roll over. They arrived at the scene to find the vehicle on its roof. The driver Mr. N. and his passenger were standing nearby as was a bystander. Mr. N. was 20 years old and was in cottage country for a weekend away with a buddy. The officer questioned Mr. N. who reported swerving to avoid a rabbit. The officer then questioned him on his recent alcohol consumption and Mr. N. admitted to drinking the night before, approximately five hours prior. The officer therefore demanded that Mr. N. give a breath sample into the roadside breath screening device. He provided a breath sample, registered a “fail” and accordingly was arrested for having over 80 mg of alcohol per 100 ml of blood – a criminal offence.
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Acquittal – Impaired and Over 80

Two civilian witnesses came upon Mr. M.’s vehicle immobilized in a ditch with two wheels off the ground. They stopped to assist and believed that Mr. M., who was in the driver’s seat, was intoxicated. They called 911. The police officer who arrived at the scene arrested Mr. M. for Impaired Operation of that vehicle.
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Guilty of Failing to Yield – Not Over 80mg (Case Study)

Counsellor Nadarajah centred her focus on three main charter arguments: (i) that the demand for Mr. T. to provide a sample into an approved screening device did not follow forthwith from the officer forming the suspicion that Mr. T. had alcohol in his body and thus breached sections eight and nine of the Canadian Charter of Rights and Freedoms. (ii) that the arresting officer’s failure to establish a firm time of Mr. T.’s last driving rendered both his ASD and Intoxilyzer demands invalid, thus also breaching both sections eight and nine of the Charter. (iii) that Mr. T. was not provided with his rights to counsel or the opportunity to exercise them prior to complying with the ASD demand when circumstances dictated that he should have been, amounting to a breach of section 10(b) of the Charter.
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Appeal – Rights Violated (Case Study)

Mr. J. was a 22 year old Canadian student entering into his 4th year of university in the United States on a golf scholarship. After attending a party in Toronto, he was stopped by the police and arrested for driving with over 80mg of alcohol in 100ml of blood (over 80).
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Over 80 – Police Misconduct (Case Study)

Ms. M. had been at a local bar having a few drinks with a friend of hers. As a result of being sexually harassed by a fellow patron (a tow truck driver), our client left the bar and drove to McDonald's for a snack. The tow truck driver followed her out, and called the police to report a possible DUI. The reality is that the tow truck driver was hoping that our client would be arrested so he could tow the car and impound it for seven (7) days - perhaps earning $1,000 in the process.
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Careless Driving Instead of Impaired Driving & Over 80mg (Case Study)

Mr. N. is a military teacher who had generally demonstrated a high degree of responsibility in our community. As so many before him, Mr. N. had a momentary lapse in his judgment and decided to get behind the wheel of a motor vehicle after having a few too many drinks. The arresting officer noted that he had witnessed Mr. N.’s vehicle cross the centre line on several occasions and briefly drive south in a northbound lane. Upon the review of Mr. N.’s disclosure package, as provided to defence counsel by the Crown, Mr. Aitken identified multiple Charter breaches. While the matter was set for a four hour trial, the trial itself never began as a result of the Crown making a deal with Mr. Aitken and Mr. N. to a plea of guilty to a lesser charge.
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Over 80mg – Stay of Proceedings (Case Study)

Ms. B. had just recently arrived back to Canada. Her plane had only just landed not long before she was stopped by the Ontario R.I.D.E. program as she drove home from the airport. She explained to the officer that she was feeling jetlagged but the officer could smell an odour of alcohol coming from her breath. She was placed under arrest after failing the approved screening device test.
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Care & Control and Over 80 Acquittal (Case Study)

Mr. G. had been watching the CFL Grey Cup while he hung out with a few of his friends on the night of Sunday November 25 to Monday November 26, 2014. At the time, he was facing a serious financial burden as he was supporting his new, young family. After entering the car with his friends, he turned towards the street from the parking garage but shortly made an additional turn to return to the parking garage. An officer, who was located across the street, grew suspicious that he should be entering the vehicle so late on a Sunday night / early Monday morning on Grey Cup day and decided to investigate.
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Acquittal – Impaired by Drugs and Dangerous Operation (Case Study)

Mr. B is quite a presentable man but was struggling through some difficult times. He wanted to get a routine medical examination done but possesses a great phobia when a physicians use needles. Ultimately, there was miscommunication between the doctor, pharmacist and our client, which resulted in Mr. B. taking far more Ativan anti-depressants than a normal person should take, given the nature of the drug. Following this mishap regarding our client being advised to take an incorrect dosage of Ativan, the Durham Regional Police Service stopped Mr. B.'s vehicle as a result of erratic driving but, fortunately, before any accidents had occurred.
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