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Drinking and Driving Offenses

 

There are six offenses in drinking and driving. They are
"driving while impaired", "Having care and control of a
vehicle while impaired", "Driving while exceeding 80 m.g.",
"Having care and control of a vehicle while exceeding 80
m.g.", "Refusing to give a breath sample", and "refusing to
submit to a roadside screen test". These are all Criminal
Code Offenses. 
The sentence for "refusing to give a breath sample" is
usually higher than either of the "exceeding 80 m.g."
offenses. Consequently, it is usually easier in the long
run for you to give a breath sample if asked. If, for
example you are convicted of "Refusing to give a breath
sample" for the first time, but were earlier convicted of
"Driving while impaired", your conviction for "Refusing"
will count as a second conviction, not a first, and will
receive the stiffer penalty for second offenses.
 
Driving a vehicle while your ability to drive is impaired
by alcohol or drugs is one of the offenses. Evidence of
your condition can be used to convict you. This can include
evidence of your general conduct , speech, ability to walk
a straight line or pick up objects. The penalty of the
first offense is a fine of $50.00 to $2000.00 and/or
imprisonment of up to six months, and automatic suspension
of licensee for 3 months. The second offense penalty is
imprisonment for 14 days to 1 year and automatic suspension
of license for 6 months. The third offense penalty is
imprisonment for 3 months to 2 years (or more) and
automatic suspension of license for six months. These
penalties are the same for the following offenses.
 
"Having Care and Control of a Motor Vehicle while Impaired"
is another offense. Having care and control of a vehicle
does not require that you be driving it. Occupying the
driver's seat, even if you did not have the keys, is
sufficient. Walking towards the car with the keys could be
sufficient. Some defenses are you were not impaired, or you
did not have care and control because you were not in the
driver's seat, did not have the keys, etc. It is not a
defense that you registered below 80 m.g. on the
breathalyzer test. Having care and control depends on all
circumstances.
 
"Driving While Exceeding 80 m.g. is the next offense.
Driving a vehicle, having consumed alcohol in such a
quantity that the proportion of alcohol in your blood
exceeds 80 milligrams of alcohol in 100 milliliters of
blood. Some defenses are the test was administered
improperly, or the Breathalyzer machine was not functioning
properly.
 
"Having Care and control of a Motor Vehicle while Exceeding
80 m.g." means having care and control of a vehicle whether
it is in motion or not and having consumed alcohol in such
a quantity that the proportion of alcohol in the blood
exceeds 80 milligrams of alcohol in 100 milliliters of
blood. The defenses are that the test was administered
improperly, or the Breathalyzer machine was not functioning
properly. 

The proper procedure for a Breathalyzer test is as follows.
The machine must be warmed up until the thermometer
registers 50 degrees centigrade. This should take at least
10 minutes. The machine should then be turned to zero (by
using the "adjust zero control") and a comparison ampoule
(of normal air) inserted. If the meter remains at zero, the
test can proceed. An ampoule with a standard solution is
then inserted. If the metro reads high or low by more than
.02% on two successive tests, the machine should not be
used. If the trial is valid, the machine should be flushed
with room air and the pointer set at start. The person
being tested in then asked to provide two breath samples,
about fifteen minutes apart. Normally they will take the
result of the lowest result and use it as evidence.
 
"Refusing to Give a Breath Sample" means refusing without a
reasonable excuse to give a sample or refusing without a
reasonable excuse to accompany a police officer, when
demanded by the police officer. Before the police officer
can demand this, he/she must have reasonable and probable
grounds to believe that the person is committing or at any
time in the proceeding two hours has committed, one of the
offenses of driving or having care and control of a vehicle
while impaired or while having a blood alcohol level in
excess of 80 m.g. The person may refuse to give a breath
sample until after he/she has communicated in private with
a lawyer even if this takes beyond the two hour period,
unless it is shown that the request for a lawyer was not
genuine and merely a delaying tactic. The test can be done
after the two hour period, but a technician must testify in
court as to what the person's blood alcohol would have been
in the two hour period. 

The person must accompany the officer even though his/her
lawyer was not present. The person may argue that the
officer didn't have reasonable and probable grounds to
arouse any suspicion, but this however depends on the
circumstances.
 
"Refusing to submit to a Roadside Screening Test" is the
last offense. When one commits this offense, the person is
refusing without reasonable excuse to give a breath sample
for a roadside screening device, or refusing without
reasonable excuse to accompany a police officer for the
purposes of giving such a sample, when demanded by an
officer. Before the officer demands a breathalyzer he must
be reasonably suspicious.
 
The maximum penalties for impaired driving causing bodily
harm to someone is up to 10 years in prison and up to a 10
year suspension from driving. The maximum penalties for
impaired driving causing death is up to 14 years and a 10
year suspension from driving. The maximum penalty for
manslaughter and criminal negligence causing death is up to
life in prison and up to a lifetime suspension from driving.
 
I think that these penalties for all the drinking and
driving offenses are very appropriate, but I think impaired
driving causing death should be a lifetime imprisonment.
Also if a person is impaired and causes bodily harm to some
one they should have their license suspended for 20 years
instead of 10 years. 
 
Bibliography
 
Highway Traffic Law, (Copyright January 1986: Community
Legal Education Ontario) p.17-32
 
Government Document, Canada Law Reform Commission Report on
Investigative Tests: Alcohol, Drugs, and Driving Offenses
(1983).
 
Erwin,Richard E. M.Bender. Defense of Drunk Driving Cases,
Criminal/Civil. (Albany 1986) p.79-81
 
Purich, Donald John, Drinking and Driving:What To Do If
You're Caught. (International Self Counsel Pr. 1978) p.22-25
 
Vertical File at Hill Crest Library, Drinking and
Driving-Offences and Penalties: A Summary (1988) p.2
 
Vertical File at Hill Crest Library, Criminal Code-Part 6
(1989), section 3, section 11.
 
Vertical File at Hill Crest Library, Highway Traffic
(1989), section 26
 

 




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