Calgary Legal Guidance

Breathalyzer Offences

The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic discusses breathalyzer offences or operating a motor vehicle while having consumed alcohol with a blood concentration over 80 milligrams.

There are several urban myths on how to “beat” the breathalyzer and much misinformation on what the law involves.  Do not rely on these when facing a criminal charge.  You should consult a lawyer who is qualified in criminal law and in particular, impaired driving law.

As of December 1, 2020, the police may not arrest you for an impaired driving offence – rather they may issue a roadside driving suspension and fine, instead. See here. You may appeal the roadside suspension – see here. However, the police retain the discretion to arrest and charge you criminally for an impaired driving offence.

A breathalyzer offence means you blew over the legal limit on an approved screening device.  This device is used by the police to test the concentration of alcohol in your blood by analyzing breath samples.  The sample is obtained when you blow into a tube connected to the machine.  Normally 2 samples of breath are taken.  The police have 3 hours to demand a breath or blood sample from the driver they believe on reasonable grounds to be impaired.  The samples are taken approximately 20 minutes apart.  After the samples are taken, you are provided with a copy of the Certificate of Analysis.  If the Certificate is admissible in Court, it can be used to prove that your blood alcohol was over the legal limit of .08.  If it is impractical to get a breath sample because you were in a serious accident, blood samples may be taken at the hospital.  The police will demand either breath or blood samples based on the circumstances.  A warrant may be obtained for a blood sample.

Whenever you are stopped by the police, you must identify yourself.  Never resist an arrest.  You do not have to answer questions asked by the police about the charge made against you.   It depends upon the circumstances, but generally the police will release you by giving you an appearance notice or promise to appear in Court.  These documents will give 2 dates.  One date is for a Court appearance and another for fingerprinting.  Be sure to appear on both dates, otherwise you will be charged with the offence of failing to appear.  Also, a warrant will be issued for your arrest.

There are 3 related offences of impaired driving.  You will be charged with 2 offences:

  1. Operating or having the care or control of a motor vehicle while impaired by alcohol or drugs, and
  2. Having a blood concentration above 80 milligrams.

You cannot be convicted of both impaired driving and breathalyzer offences.

  1. Failing or refusing to comply with a demand made by a police officer for a sample of breath by a roadside screening device.

This is a very serious offence. Roadside testing is for traffic safety for the general public. There is no right to speak to a lawyer before roadside testing.  The police have a right to detain you for roadside testing if they believe on reasonable grounds that you committed the offence of drinking and driving.  A license suspension may begin at the time of your arrest after roadside testing.  The license suspension will be given regardless whether you are convicted of the charge or not. You should contact a lawyer as soon as you are arrested.  The police should inform you of that right and at the police station provide you with a telephone and a list of lawyers with their telephone numbers. A reasonable amount of privacy should also be provided when you are speaking to your lawyer.

At trial, the Court will consider the evidence of your impairment.  It will consider your physical appearance such as the smell of alcohol on your breath, the glassy or blood-shot appearance of the eyes, your unsteady walking ability or standing ability and your slurred speech.  It will also consider the

erratic manner of your driving.  The Certificate of Analysis may also be submitted for evidence.  If your blood alcohol level exceeds twice the criminal offence level, the Judge is required to consider that level as an aggravating factor.  Aggravating factors will increase your sentence if you are convicted.

If you are not driving your vehicle and just sitting in it without the vehicle running, you could be charged with having care and control of a vehicle while impaired.  The Court will consider where you were in relation to the vehicle and whether the vehicle was running.  The Court will also consider where the keys were and where the vehicle was stopped and whether you intended to move the vehicle.

Your driving privileges will be suspended if you are convicted of impaired driving or a breathalyzer offence.  The length of time depends upon the circumstances.  The Alberta Motor Vehicles Branch will suspend your license and an Alberta Court Judge will also suspend your license.  Both suspensions run at the same time but you cannot drive until the longer license suspension is complete.  Your cannot get your license back until you have met all conditions imposed such as a license reinstatement fee, taking a road test and attending a seminar on drinking and driving.  You may appeal the license suspension, but it remains in effect until your appeal is over.  The maximum penalty for driving while prohibited is between 2 and 5 years imprisonment.

You should consult with a lawyer if you have been charged with impaired driving or a breathalyzer offence.  The consequences are serious.  You will have a criminal record.  You may receive a jail term for a second offence and for any conviction you receive after that.  Your insurance premiums will increase dramatically for a number of years depending upon your insurance policy.  Fines for first time convictions begin at $1,000 to no limit or 6 months to 5 years imprisonment or both.  Alberta imposes driving license suspensions of 12 months for the first offence, 36 months for the second offence and 60 months for the 3rd offence.  These license suspensions are typically longer than those imposed by the Court.   The maximum penalty for impaired driving causing bodily harm or death is up to 10 years imprisonment.  There are also offences for leaving the scene of a collision knowing there was death or injury to other persons.

Alberta also has an active alcohol ignition interlock program.  After you serve the Court-ordered prohibition from driving, convicted offenders may apply for early license reinstatement under the ignition interlock program.  If approved, you may only drive an interlock-equipped vehicle and pay all installation and service fees.  Contact a lawyer of the Driver Control Board for details.

Dial‑A‑Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.

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