Impaired Driving

What are the Different Drinking and Driving Charges?

There are three drinking and driving charges you can potentially face under the Criminal Code. Impaired Driving under section 253(1)(a); Over 80 under s. 253(1)(b); and Refuse or Fail to Provide a Breath Sample under s. 254(5).

Often people are charged with both Impaired Driving and Over 80 but it is not unusual to just be charged with Over 80. For example, someone who is stopped at a R.I.D.E spot check and fails a roadside breath test done on an Approved Screening Device (A.S.D.) and who then blows into an Intoxilyzer 5000C or Breathalyzer instrument after being transported back to a police detachment will likely only be charged with Over 80. If you are charged with both Impaired Driving and Over 80, you have to beat both charges in order to avoid the consequences of a conviction. If you are only acquitted of one of the charges, you will still be subject to the minimum sentence at best. You cannot be convicted of both Impaired Driving and Over 80 because of what is known as the Kienapple principle. The rationale for this principle is that because the same facts prove both charges, you can only be convicted and sentenced on one of the charges. Of course you still have to win on both to avoid the conviction and sentence.

It is less likely, but certainly not impossible to be charged only with Impaired Driving. Again, the minimum penalties apply if you are found guilty, even if you were only originally charged with impaired driving.

A Refusal to provide a breath sample (or fail to blow) without a lawful excuse also carries with it the same minimum sentence upon conviction. You can be convicted of both Impaired and Refuse because the Kienapple principle does not apply here. That means that you can be convicted be sentenced on both charges consecutively meaning that you could get the minimum one year prohibition on the impaired as well as a minimum one year sentence on the refuse, for a total of two years.