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Ontario Impaired Driving Penalties and Ontario’s New “Getting Your Licence Back Earlier” Law

Losing your licence because of an impaired driving conviction can have a massively detrimental effect on your life, especially if you rely on driving to get to work or if you live in a rural area.

The Ontario Highway Traffic Act (HTA) creates punishments that are in addition to the Criminal Code fines and periods of imprisonment for drunk driving offences, including licence suspensions between 1 year for a first offence to a lifetime for a third offence. In addition to being subject to the suspensions, these drivers have to complete a remedial measures assessment and education or treatment program (for approximately 10 months), and also have to install an Ignition Interlock Device on their vehicles for between 1 year for a first offence to lifetime for a third offence (if the suspension period is reduced to 10 years). The Ignition Interlock Device is a leased breath alcohol monitoring machine wired into your vehicle’s ignition.

However, the HTA is now also allowing for early reinstatement of the suspended licence with the installation of the Ignition Interlock Device – if you meet certain conditions.
This program is available for persons convicted of a first impaired or over 80 driving or refuse breath sample offence that did not cause bodily harm or death and did not involve drug impairment.
You must have a car and valid insurance to be eligible. Additionally, you must not be under another suspension (such as for dangerous driving or a novice driver disqualification) and you must have your fines fully paid.
There are 2 “streams”:

Stream A

  • 3 months minimum driver’s licence suspension
  • Followed by a minimum Ignition Interlock Installation Period of 9 months

*Stream ‘A’ is only available if you plead guilty and are sentenced within 89 days of being charged*

Stream B

  • 6 months minimum driver’s licence suspension
  • Followed by a minimum Ignition Interlock Installation Period of 12 months

Conclusion:

Two of the requirements for both streams are to successfully complete the assessment component of the required remedial measures program and to establish proof of a lease agreement for an approved Ignition Interlock Device. Note that before the new law, the overall impact was 12 months of no driving plus 12 months of Interlock. Now it could be as low as 3 months of no driving plus 9 months of Interlock.

The difference between the two streams is that Stream A applies to those who plead guilty and are sentenced within 89 days of being charged. Stream B applies to those who plead guilty and are sentenced later or who lose at trial. Stream A only applies to those who have not been convicted of an Impaired Operation/Exceed 80mgs or Fail to Provide Breath Sample offence within the last ten (10) years.

There is much that is good about this new law, however a big concern is that innocent people, for example, those in rural areas, who depend on driving to get to work, buy groceries etc., will plead guilty, just to get their licences back sooner, or because 89 days often is not enough time to be able to assess whether a defence is available. Due to this tight time frame, it becomes critically important to retain a lawyer quickly and then make a decision when informed of all your options.

Currently, the new Ontario impaired driving penalties for a first offence are:

  • A fine increased to $1000.00 from $600.00;
  • 30 days in jail instead of 14 days on a second offence;
  • 120 days in jail instead of 90 days on a third offence.

There are a number of other consequences too:

  • The installation of the Ignition Interlock Device for between 9 months and a lifetime, depending on the number of prior convictions and the date of each sentencting;
  • Being required to attend the Ministry of Transportation “Back on Track” assessment or the assessment and the Educational or Treatment Programs;
  • Massive insurance increases;
  • A criminal record which may limit your employment prospects;
  • Your ability to travel internationally could be affected;
  • Your automobile could be seized and sold by the police;
  • Possible immigration-citizenship consequences.

Other Ontario Impaired Driving Penalties

Further fines, victim fine surcharges, probation, weapons prohibitions, DNA orders, increased insurance and many other penalties are possible in addition to the basic fines and driver’s licence suspensions. The sooner we act the more we control the damage.

The consequences of driving impaired in Ontario are very serious. As well, Ontario’s drinking and driving laws are becoming progressively stricter. For example, in Ontario, a fully licenced driver will receive an immediate roadside licence suspension of three, seven or 30 days if he or she refuses to submit to a breath test or if during the breath test a Blood Alcohol Concentration (BAC) of 0.05 or more is recorded.

Drivers under the age of 21 years and novice drivers, who are not fully licenced, are allowed no alcohol what-so-ever in their systems. If caught with any alcohol in their blood, these drivers would get an immediate 24-hour roadside licence suspension and then if convicted, the fully licenced driver who is 21 or under could receive a fine of up to $500 and a 30 day licence suspension. In addition to fines and potential jail time, a novice driver with an impaired driving conviction would also have his or her licence suspended and be required to return to the start of the Graduated Licence System.

The Province of Ontario has instituted automatic roadside licence suspensions that immediately remove suspected impaired drivers from the roads. Immediate roadside suspensions are also intended to act as a deterrent, in the hope that they will discourage drivers who have been caught drinking and driving from ever re-offending again. If a driver with a prior licence suspension should get caught again with a BAC in the ‘warn range’, i.e., a BAC of 0.05 to 0.08, the police can immediately suspended the impaired driver’s licence for seven days. For a third or subsequent occurrence of being caught driving with a BAC in the warn range, the offending driver’s licence will be immediately suspended for 30 days.

The consequences of being caught driving with a ‘Warn Range’ 0.05 to 0.08 BAC include:

First offence:

  • 3 day licence suspension
  • Administrative Monetary Penalty of $150

Second offence: (within a 5 year period)

  • 7 day licence suspension
  • Administrative Monetary Penalty of $150
  • Mandatory participation in Alcohol Education Program

Third offence: (within a 5 year period)

  • 30 day licence suspension
  • Administrative Monetary Penalty of $150
  • Mandatory participation in Alcohol Education Program
  • 6 month Ignition Interlock licence condition

Fourth and subsequent offences: (within a 5 year period)

  • 30 day licence suspension
  • Administrative Monetary Penalty of $150
  • Mandatory participation in Alcohol Education Program
  • 6 month Ignition Interlock licence condition
  • Mandatory medical evaluation

Ignition Interlock Program

If you are a first-time offender charged with impaired driving or over 80, and there are no drugs involved or no aggravating circumstances, you may be eligible to get a licence suspension of less than one year allowing you to drive with the Ignition Interlock device instead. You MUST plead guilty and be sentenced within 89 days of being charged and the appropriate arrangements must be made ahead of time to qualify for this new program. Ignition Interlock device licence conditions also apply if you are caught driving with a ‘Warn Range’ 0.05 to 0.08 BAC three or more times.

The Ministry of Transportation of Ontario does not recognize pardons. Therefore, despite having received a pardon for a previous drinking and driving offence, you will receive the same driving suspension as if you had not received a pardon. This can result in devastating consequences.

Also, if you have a conviction from certain States in the United States, such as Michigan or New York, in certain circumstances it may count as a “prior” in Canada.

An experienced lawyer can assist you in navigating through these rough waters. Often, simply timing when the accused finishes his/her file, can have a significant beneficial impact in reducing the length of driving suspensions.

At Aitken Robertson, our team approach gives you an opportunity to meet with our various lawyers to fully discuss the facts of your case. While no lawyer can promise a particular result, we will often be able to give you an initial, honest impression of your case and explain to you the approach that we will take in defending you. If you hire Aitken Robertson we will work with a variety of experts to evaluate the merits of your case.

Aitken Robertson is experienced in assessing the complicated interplay between the Criminal Code and the Highway Traffic Act to avoid the unexpected and unwanted results that await the misinformed.

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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