The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses general information about operating or having the care or control of a motor vehicle while impaired by alcohol or drugs.
The police will stop you if they suspect you are driving while impaired. They may also stop you when you are driving for some legitimate reason and then randomly demand you provide a roadside breath sample. There are a number of offences which criminalize drinking or consuming drugs within two hours of driving. They are all serious and they all have potential immigration consequences. You may be charged with the following offences:
- Having care or control of a motor vehicle while impaired by alcohol or a drug, or a combination of the two or;
- Having care or control of a motor vehicle with a blood alcohol content over .08;
- Having care or control of a motor vehicle with more than the prescribed amounts of listed drugs in your blood or with a combination of alcohol and drugs over the legal limit;
- Failing or refusing to comply with a demand made by a police officer to complete a breath test.
You have no right to speak to a lawyer before roadside testing, except in extraordinary circumstances. If the police lawfully stop you while you are driving, they can demand you complete a roadside breath test. They do not have to suspect that you have alcohol in your body when you are driving in order to do so. A 90-day license suspension will begin at the time of your arrest for an intoxicated driving offence, although you are presumed innocent of the charge until it is proven. 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.
Although you do not have to answer questions asked by the police about the charge you are facing, you must identify yourself when asked to do so. Never resist an arrest. At your arrest, the police must inform you of your right to obtain legal advice and at the police station provide you with a telephone to call a lawyer. The police should provide you with a list of lawyers whom you can call on a 24-hour basis. If you cannot afford a lawyer, the police should tell you about free legal agencies such as Legal Aid. You should also be given a reasonable amount of privacy when talking with your lawyer. The police may then ask you to perform a second breath test, this time with the breathalyzer. After the breathalyzer testing, the police will give you a copy of the Certificate of Analysis which records your breath readings as well as notice that the document will be used at trial. You will be asked to sign this document to admit that you understand it and have received it.
The police may then release you by giving you certain documents:
- An appearance notice, or
- A promise to appear in Court.
The documents will tell you when you must appear in Court and when to attend for fingerprinting. Do not miss the Court date or the fingerprinting date, as you will be charged with another offence, failing to appear. The Court will also issue a warrant for your arrest.
In more serious cases, the police may bring you to bail court where you could be kept in jail until your trial or until released on bail by a Justice of the Peace or a Judge. You must follow all the terms of your bail order or you may be charged with new criminal offences for breaching your bail terms.
In order to be convicted of impaired driving or over 80 mgs/drugged operation, the Crown must prove certain elements. In the case of operating or controlling a motor vehicle while impaired, the Crown must demonstrate that you voluntarily consumed alcohol and/or drugs and then controlled or operated a motor vehicle while impaired. In the case of operating a motor vehicle with over the legal limit of alcohol and/or drugs, the prosecutor must demonstrate that you voluntarily consumed alcohol, then operated or had a vehicle in your care and control with more than the legal limit of alcohol and/or drugs in your blood. You do not have to be driving your vehicle in order to be convicted of these offences. If you are just sitting in it without the motor running, you may be charged with having care and control of a vehicle while impaired or with alcohol/drugs in your blood over the legal limit. The Court will consider where you were in relation to the vehicle, whether the vehicle was running, where the keys to the vehicle were, where the vehicle was stopped and whether you intended to move the vehicle.
Although the police may charge you with both impaired driving and driving with over the legal limit of alcohol and/or drugs, you cannot be convicted of both. You can, however, be convicted of refusing to provide a breath sample and another intoxicated driving offence.
At the 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 indicating the alcohol concentration in your blood provided by breath samples or blood samples will also be considered. The higher the readings of alcohol and/or drugs in your system, the higher the fine you will be pay. If your case is serious, you could go to jail – especially if you have previous convictions for impaired driving offences.
If you are convicted of an intoxicated driving offence, the judge will suspend your license for at least 12 months. However, you can immediately apply to have the interlock device installed on your vehicle to allow you to drive as soon as that device is installed. The province of Alberta will also suspend your licence: 12 months for the first offence, 36 months for the second offence and 60 months for the third offence. These license suspensions are typically longer than those imposed by the Court. Both suspensions run at the same time but you cannot drive until the longer license suspension is complete. You cannot get your license back until you have met all conditions imposed. Conditions may include paying the license reinstatement fee, taking a road test and/or attending a seminar on drinking and driving. You may appeal the license suspension, however the suspension remains in effect until your appeal is over. The maximum penalty for driving while prohibited is between 2 to 5 years imprisonment.
You should consult a lawyer if you have been charged with impaired driving or with driving over the legal limit of alcohol and/or drugs in your blood. The consequences are serious. You will have a criminal record. At a minimum, you will be ordered to pay a fine of at least $1,000 for your first offence. You will face a mandatory jail sentence for every second or subsequent conviction. The maximum period of custody you can face in an indictable case is 10 years. The maximum penalty for impaired driving causing death is life imprisonment. There are also offences for leaving the scene of a collision knowing there was death or injury to other persons. Your insurance premiums will increase dramatically for a number of years depending upon your insurance policy.
Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.