Understand the Differences Between Impaired Driving and Dangerous Driving
Impaired driving and dangerous driving are federal crimes punishable under the Criminal Code of Canada. Both offences allege or contain an aspect of conduct that potentially endangers the life of the accused and others around the accused, including passengers, pedestrians and other motorists. In addition to fines and possible jail terms, the offences result in a driver’s licence suspension for at least one year (or longer for second and third offences) throughout Canada (and possibly non-Canadian jurisdictions). Rod Gregory is an expert criminal defence lawyer in Edmonton who is very knowledgeable with provincial driving laws and can explain the circumstances behind impaired driving and driving under the influence of alcohol.
Impaired driving is the act of care, control or operation of a motor vehicle under the influence of alcohol and/or drugs to the extent that mental and motor skills are impaired. The offences of impaired driving fall into one of the following categories:
- Operating a motor vehicle with a blood alcohol level in excess of 80 mg per 100 ml of blood (also causing bodily harm and causing death);
- Impaired operation of a motor vehicle;
- Impaired operation of a motor vehicle causing bodily harm;
- Impaired operation of a motor vehicle causing death; or
- Refusal to provide a breath or blood sample.
Dangerous driving is defined broadly under section 249(1)(a) and (b) of the Criminal Code. Dangerous driving constitutes something less than criminal negligence, but also something more than mere inattention. Not every motor vehicle accident constitutes dangerous driving. Erratic driving, speed or driving resulting in an accident may or may not constitute dangerous driving depending on the circumstances. Dangerous driving entails operating a motor vehicle in a way that is dangerous to the public, having regard to all the circumstances, including the:
- Nature, condition, and use of the place where the vehicle is being operated; and
- Amount of traffic at the time or may be reasonably expected.
Dangerous driving can also entail the same criteria when operating a vessel or any water skis, surf-board, water sled over international waters of Canada or a territorial seas of Canada.
Though an argument can be made that impaired driving is evidence of dangerous driving, a dangerous driving charge is not necessarily laid in conjunction with an impaired driving charge. Nor is impaired driving necessarily dangerous. A situation where both charges could be laid is where a person driving under the influence of alcohol refuses to stop for an officer and then engages in high speed driving to escape criminal liability. Each situation is considered unique and separately as no two situations are exactly the same.
Evidence Supporting an Impaired Driving Charge
If a police officer has reasonable grounds to suspect that a person is driving under the influence of alcohol or drugs and has likely operated a motor vehicle within the preceding three hours, a police officer may make breath demands or conduct sobriety tests. Evidence of poor driving and indications of impairments include:
- Physical coordination tests that show difficulty in walking;
- Standing or turning;
- Slurred speech;
- Glassy, bloodshot eyes and dilated pupils;
- Odour of an alcoholic beverage or drugs; or
- Flushed face.
A police officer may make a breath demand to determine your Blood Alcohol Concentration (BAC) if the officer complies with the Charter of Rights and Freedoms requirements that protect individuals.
A police officer who has a reasonable suspicion that a person has alcohol in their body may make a breath demand for a roadside screening test. There is no right to counsel at this stage of an investigation. A person may be charged with refusal for failing to provide a breath sample in the face of a lawful demand for a roadside breath test.
Intoxilyzers and other breath instruments are instruments used at police stations to analyze the specific quantity of alcohol in your breath. These scientific tests can be subject to scrutiny, however, including due to improper calibration, interfering compounds, homeostatic variables, and mouth alcohol interference, including the inability to detect recent consumption not absorbed in the blood. If you refuse to take a breath test when requested to do so by an officer, you could still be charged with impaired driving and also refusal to provide a breath sample. Offering to provide a blood sample is not a defence to refusing to provide a breath sample. There are defences or lawful excuses to refusing to provide a breath sample, for example: a pre-existing medically condition preventing you from providing an adequate sample of your breath, or an unlawful or invalid demand.
Driving under the 0.8 percent BAC limit does not mean charges the police are precluded from laying charges. The combination of alcohol and fatigue may constitute impaired driving. You may also be charged with impaired driving if the police have reasonable and probable grounds to believe that you are impaired by a drug.
The police may also make observations of impairment: reduced reaction time, slurred speech, problems with balance, and bad driving. An “over 80” charge can also be laid instead of an impaired driving charge where a BAC reading is higher than 0.8 percent even if the police do not observe obvious signs of impairment. An extreme example is where an alcoholic blows two to three times over the legal limit but there are no observable signs of impairment.
Evidence Supporting a Dangerous Driving Offence
For dangerous driving convictions, the court is required to consider the criteria mentioned above in section 249(1)(a) and (b) of the Criminal Code. There are situations where a person may be charged with dangerous driving. These include driving too fast or too aggressively, ignoring traffic lights, road signs or warnings from passengers, overtaking other vehicles in a dangerous manner, street racing, driving when unfit or injured, and knowing the vehicle has a dangerous fault or an unsafe load. The police may lay a charge of dangerous driving where there is an accident, but an accident is not a prerequisite to the police laying the charge.
Each case is considered on its own merits, with consideration given to whether an accident occurred and if there were any passengers with you.
The minimum penalties under the Criminal Code for driving or care or control of a vehicle while impaired or over 0.8 percent BAC are as follows:
- 1st offence - $1,000 fine; and a driving prohibition not less than 1 year and not more than 3 years (eligibility for an ignition interlock after 3 months)
- 2nd offence – 30 days of jail time; and and a driving prohibition not less than 2 years and not more than 5 years (eligibility for an ignition interlock after 6 months)Two to five year driving prohibition.
- 3rd offence - 120 days jail term; and and a driving prohibition not less than 3 years (eligibility for an ignition interlock after 12 months)
The maximum penalty for impaired driving when the Crown has proceeded by summary conviction is eighteen months’ imprisonment. If the Crown proceeds by indictment, the maximum penalty is five years’ imprisonment. Further, Traffic Safety Act in Alberta will impose a mandatory licence suspension of 12 months for a first offender, 3 years for anyone with a second conviction within 10 years and 5 years for 3 or more convictions within 10 years. The person would then be required to operate a motor vehicle with an ignition interlock for those suspensions.
For an indictable offence involving bodily harm to another person, the maximum penalty is a jail term not exceeding ten years, and for one resulting in the death of another person, the maximum sentence is life imprisonment.
If an accused person suffers from an alcohol addiction, they may be eligible for a curative discharge. Instead of convicting the accused, the Court may place the person on a lengthy period of probation to maintain sobriety and continue with alcohol counselling and treatment. The mandatory driving prohibitions apply to individuals who are granted a curative discharge.
For dangerous driving, the sentence imposed upon conviction depends on whether an injury occurred or not. Where no injury occurred, there is no minimum penalty and the maximum penalty is a $5,000 fine or six months imprisonment for summary convictions and the five years for indictable offences. Where an injury occurred, there is no minimum penalty and the maximum penalty is ten years imprisonment as an indictable offence. There is also a mandatory driving prohibition of 1 year.
If you are convicted of a DUI or impaired driving offence, you must complete a remedial program of one of two courses through the Alberta Driving Program if you live in Edmonton and area, or in a Driving Program in the province that you reside in. To obtain driving privileges after all licence reinstatement conditions have been met, you will be required to install an ignition interlock on your vehicle to monitor your driving pattern and prevent any further impaired driving/DUI conduct. The device requires the driver to blow into it before starting the car and if any alcohol is detected, the car will not start. The device will record all attempts to drive with alcohol in your system, which can disqualify you from the program. Those convicted of dangerous driving are not eligible for the ignition interlock program.
If you drive while subject to a court ordered prohibition (drive while disqualified, s. 259 Criminal Code) you could be convicted of drive while disqualified. If convicted of this offence, you will receive a mandatory consecutive driving prohibition and will most likely receive a term of incarceration. Your vehicle could be seized and impounded for 30 to 60 days.
Insurance and Other Consequences
Your motor vehicle insurance will be affected significantly if you are convicted or impaired or as insurance companies assign risk points based on the severity of the offence. Four insurance risk points are assigned for:
- Driving over 0.8 percent BAC or over 0.8 percent BAC/care or control;
- Impaired driving or impaired/care or control;
- Dangerous driving; and
- Failure or refusal to provide a breath sample.
Most insurance companies will not renew your insurance or accept you as an insured driver if you accumulate four insurance risk points. You will have no other option but to obtain insurance from a company offering insurance to drivers deemed high risk. Where you are able to obtain insurance, you could face a surcharge above your premiums for the next three to six years of 100 percent for first time convictions (which effectively double your insurance premiums) and up to 250 percent for convictions relating to the same incident such as careless driving or failing to remain at the scene of the accident. The surcharge stays in effect for three years following the date of conviction, but the insurance company can require you to pay the high-risk rate for three to six more years in order to obtain insurance. If your pre-conviction insurance rate was up to $2,000 per year, your new annual rate could be as high as $6,000 or more. If you then drive without insurance, you could face a charge for such and this would raise your premium further.
Further consequences can result in addition to those already mentioned. A criminal record can prevent you from obtaining work in your chosen field, prevent you from being able to travel outside the country and it can impact your citizenship application.
If you are charged with impaired driving or dangerous driving, you are best to consult with a criminal lawyer to try eliminate the charge and prevent a conviction. If the circumstances are fitting, your lawyer may seek to have your charge reduced to a careless driving, which is where the driving departs sufficiently from the standard of a prudent and reasonable driver but not markedly. A careless driving conviction would still raise your insurance but to a lesser degree and the offence is not a criminal conviction.
Rod Gregory is Your Expert Impaired Driving Lawyer in Edmonton and Surrounding Areas
If you need a lawyer to help you with an impaired driving or dangerous driving charge, consult with him today. He has worked on impaired and dangerous driving cases in Edmonton, Fort McMurray, Grand Prairie, and the surrounding areas in Western Canada. Identifying your impaired or dangerous driving charges and arrest is imperative to your case. Rod Gregory can represent you in your case by providing comprehensive advice for a strong defence.