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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
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. There are 3 related offences of impaired driving. You may be charged with the following offences:
- Operating a motor vehicle while impaired by alcohol or a drug, or a combination of the two or,
- Operating a motor vehicle while having consumed alcohol over .05. You cannot be convicted of both impaired driving and breathalyzer offences.
- 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 also a very serious criminal 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 have 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. Generally, you are given some time to put your affairs in order before the suspension takes effect.
Although you do not have to answer questions asked by the police about the charge made against you, you must identify yourself when asked to do so. Never resist an 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. You will then be given a breathalyzer test provided with a copy of the Certificate of Analysis.
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 order to be convicted of either impairment offences, it will be necessary for the Crown to prove certain elements. In the case of operating or controlling a motor vehicle while impaired, the Crown must demonstrate that the defendant intended to voluntarily consume the alcohol or drugs and that the defendant controlled or operated a motor vehicle while impaired. In the case of operating a motor vehicle while consuming over 50 mg of alcohol the prosecutor must demonstrate that the accused voluntarily consumed alcohol, that they operated a vehicle or had a vehicle in their care and control and that the act occurred at a time when the proportion of alcohol in the driver’s blood exceeded 50mg in 100ml of 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. 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.
The police will charge you with 2 offences, but you cannot be convicted of both the offences of impaired driving and having alcohol over .05.
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. If your blood alcohol level exceeds twice the criminal offence level, the Judge will consider that level as an aggravating factor. Aggravating factors increase your sentence if you are convicted.
Your driving license will be suspended if you are convicted of impaired driving or of a breathalyzer offence. The length of time depends upon the circumstances. The Alberta Motor Vehicles Branch will suspend your license and the Judge will also suspend your license. Alberta imposes driving license suspensions of 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 a breathalyzer offence. The consequences are serious. You will have a criminal record. You may receive a jail term for a second offence of impaired driving and 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 $300 to no limit or 6 months to 5 years imprisonment or both. 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.
You may apply to the Alberta Control Board for an alcohol ignition interlock device once the Court imposed license restriction is over. Contact a lawyer or the Driver Control Board for details.