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What Everyone Needs to Know about Ontario DUI / Impaired Charges

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Chapter 1
What are the DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer laws in Ontario?
Chapter 2
What are the penalties for a DUI, Drinking and Driving, Over 80 charge in Ontario?
Chapter 3
Who are the people that will be involved in your DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer case?
Chapter 4
What are the next steps when you go to court for your DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer charge?
Chapter 5
How to get out of a DUI in Ontario: How Lawyers fight DUI cases
Chapter 6
What is Canada’s Charter of Rights and Freedoms?
Chapter 7
How do I get my license back after a DUI charge?

CHAPTER 1

What are the DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer laws in Ontario?

What are the DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer laws in Ontario?

There are three core DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer laws in Ontario that the Police can charge you with.

  1. Drinking and Driving / Over 80; or
  2. Impaired Driving by Alcohol or Drugs; or
  3. Refuse Breathalyzer

These three charges are criminal charges and are defined under the Criminal Code of Canada.

What does it mean to get charged with a DUI, Drinking and Driving, Over 80 charge in Ontario?

The most common drunk driving charge is a DUI charge known as an Over 80 Charge.

This means that the Police believe you were operating a vehicle with an alcohol level greater than 80 mg of alcohol per 100 mL of blood.

What does it mean to get charged with Driving Impaired Under the Influence of Alcohol or Drugs in Ontario?

This means that the Police believe your operation of a vehicle was impaired by Alcohol or Drugs.

You do not need to have a blood-alcohol level above 80 mg. In other words, you can still be charged and found guilty of this DUI charge even if your breath samples were below the legal limit.

You do not need to have any alcohol in your system. In other words, you can still be charged and found guilty of this DUI charge if the Crown can prove that your impaired operation of the vehicle was due to drugs in your system.

What does it mean to get charged with Refusing Breathalyzer in Ontario?

This means that the Police believe you refused to take a breathalyzer test.

There are two situations in which the Police lay this charge.

  • First, where the Police believe you have refused to take the breathalyzer test.
  • Or second, where the Police believe that you pretended to blow into the breathalyzer machine.

The Police charged you with a DUI, Over 80, Drinking and Driving, Impaired Driving or Refusing Breathalyzer. But, you were also charged under the Highway Traffic Act of Ontario. What is happening here?

DUI related offences (such as Drinking and Driving / Over 80, or Impaired Driving by Alcohol or Drugs, or Refuse Breathalyzer) are defined in the Criminal Code of Canada.

The Criminal Code of Canada is a federal law. In other words, these charges under the Criminal Code apply to every person across Canada.

However, there are provincial laws that also cover DUI related offences. In Ontario, these laws are defined in the Highway Traffic Act. When you are charged under the Criminal Code, you may also be charged with offences under the Highway Traffic Act.

CHAPTER 2

What are the penalties for a DUI, Drinking and Driving, Over 80 charge in Ontario?

If you are convicted of a DUI, Drunk Driving, Over 80 charge (whether you entered a guilty plea or were found guilty after a trial), you will face a series of serious penalties.

  • You will be automatically prohibited from driving. This prohibition will be Canada-wide. And, you will also be subject to a fine, jail, or probation. Or some combination of all.
  • You will face a range of penalties – Given the serious nature of a DUI charge, the lawmakers have given the Judge a wide range of penalties to be applied to your case based on your case’s specific facts.

    Generally speaking, the more severe your case’s facts are (for example, if someone was hurt or killed), then the more severe the penalty you will face).

    However, the Judge is not free to do whatever he or she wants. The Judge must follow specific sentencing guidelines.

    There are minimum sentences that the Judge must give you. And conversely, there are maximum limits to what the Judge can impose against you.

    Generally, it’s between the minimum and maximum penalties where the Judge has flexibility in the penalties you face.

What are the minimum and maximum penalties you face from a DUI, Drunk Driving, Impaired Driving, Refusing Breathalyzer conviction?

The minimum sentences you will face depends on whether you have been convicted of the DUI charge before:

  • For a first offence – a $1,000 fine plus a 12-month driving prohibition
  • For a second offence – 30 days jail and a 24-month driving prohibition; and
  • For a third or subsequent offence – 120 days jail and a 36-month driving prohibition.

The maximum sentences you will face will depend on how the Crown intends to prosecute your case. And whether someone was hurt or killed as a result of your DUI.

  • If no one was hurt or killed, the Crown has the option to proceed with your charge in a relatively less severe context known as proceeding by “summary conviction.” In this case, the maximum jail time you will face will be 18-months of jail.

    If the Crown chooses to proceed with your charge in a more serious context, this is known as proceeding by “indictment.” In this case, the maximum jail time you will face will be 5-years of jail.
  • If another person was hurt and suffered bodily harm because of your DUI, the maximum sentence you will face will be 10-years of jail.

    If another person was killed because of your DUI, the maximum sentence you will face would be life in prison.

What other penalties will you face on a conviction of a DUI, Drinking and Driving, Impaired Driving and Refusing Breathalyzer charge?

Both federal and provincial driving suspensions – You will face a driving prohibition not only from the Criminal Code of Canada (which is federal law) but you will be facing a license suspension under provincial law.

You may be subject to civil lawsuits – If you hurt or killed another person in the context of your DUI charge, that other party may launch a civil lawsuit against you.

In the criminal context, the burden of proof is beyond a reasonable doubt. However, in a civil lawsuit context, that burden of proof is only a “balance of probabilities” – which is significantly less than the criminal context. Because you were convicted in a criminal context, you will most likely lose any civil case against you.

Your insurance will dramatically increase – Your DUI conviction will place you in a high-risk category. And if you can drive again, the cost to get insurance will increase significantly.

Which criminal court will handle your DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer case in Ontario?

You may be summoned to any of the following courts across Ontario:

Cobourg, Guelph, Brockville, Brampton, Burlington, Cayuga, Ottawa, Napanee, Owen Sound, Sarnia, Leamington, Sault Ste Marie, Thunder Bay, Oshawa, Peterborough, Toronto, Kingston, Orillia, Barrie, Sudbury, St. Catharines, Bradford, Belleville, Parry Sound, Orangeville, Hamilton, Stratford, Ontario, Woodstock, Bracebridge, Kitchener, London, Timmins, Newmarket, Welland, Windsor

CHAPTER 3

Who are the people that will be involved in your DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer case?

To get the best outcome for your DUI charge, it’s important to know the people involved in my DUI case.

How does the criminal court process in Ontario work?

Our criminal justice system works like a “boxing match” or “MMA fight.”

Our court system is designed to have two people fighting it out with a referee to make sure each side is following the rules. And, in many cases, that referee will also decide on the outcome of your case.

The DUI Judge. The DUI Prosecutor. Who are the people that matter in your DUI case?

There are 3 important people that matter in your DUI case.

  • Important Person #1: You – You have been charged under the Criminal Code of Canada. You are known as the “Accused.” You can either defend yourself or have a lawyer defend you.
  • Important Person #2: The Crown or Prosecutor– The Crown is a lawyer representing Canada’s government. If your case goes to trial, then the Police Officer will be asked to attend your trial to provide the evidence.
  • Important Person #3: The Judge – He or she is the “referee.” In many cases, the Judge will decide your case’s outcome (whether you are guilty or not guilty). If you are found guilty, that Judge will also decide on the penalty or sentence against you.

    In some cases (more serious DUI charges), the fourth important person would be a Jury that would hear the case against you and decide whether you are guilty or not guilty.

What role does the Judge and the Prosecutor play in your DUI case?

These 3 important people each have an important role in your DUI case.

  • Your Role – You have been charged with a DUI related offence. This is a criminal charge.

    Your job is to defend yourself against the charge. If you hire a lawyer, your lawyer’s job will be to defend you.
  • The Crown’s Role – The Crown is NOT your friend. Yes, they may be nice. They may be pleasant to deal with. But their job is NOT to be your friend.

    His or her job is to convict you of the DUI charge.

    First, the Crown needs to decide whether there is sufficient evidence to prove the charges against you beyond a reasonable doubt. If there is, then the charges against you will proceed.
  • The Judge’s Role – He or she is the “referee” in your fight.

    In criminal court, your case will be overseen by a Judge.

    The Judge is NOT advocating for you.

    The Judge is NOT advocating for the Crown.

    The Judge is like a referee. The Judge is there to make sure that all the rules are being followed.

    And, most of the time, the Judge will be the one who decides whether you are guilty or not.

CHAPTER 4

What are the next steps when you go to court for your DUI, Over 80 Charge, Drinking and Driving, Impaired Driving and Refusing Breathalyzer charge?

What to expect when you go to court for your DUI charge?

The most important thing to remember with any criminal charge – whether you’ve been charged with Drinking and Driving / Over 80, or Impaired Driving by Alcohol or Drugs, or Refuse Breathalyzer — is that you are presumed innocent.

  • It’s the government’s job to prove you are guilty beyond any reasonable doubt. You do not need to prove you are innocent.
  • To prove the charges against you, the government must go through a very specific legal process. This legal process starts with what is called a “first appearance.”

How long will your DUI court case take?

The criminal charges against you will take time. The legal process does not happen overnight. However, the courts cannot take forever to prosecute the case against you.

  • Generally, the courts have up to 30 months to bring the charges against you to trial. If your case goes beyond that 30 month time period, it may be possible to get your charges withdrawn because your right to have your case heard within a reasonable period of time has been breached. This is a constitutional argument that you should speak to your lawyer about.

The DUI court process in Ontario: The court appearances you need to know about in your Drinking and Driving case.

As your criminal case proceeds through the court system in Ontario, you will face a series of court dates that include:

What are the key court appearances that I will face during my DUI / Impaired legal process in Ontario?

  • First Appearance – This is the first time you appear before the court. It’s not a trial.
  • To Be Spoken To or Set Date Appearances – The case against you will take time. For example, your lawyer needs to get all the evidence, prepare a defence, etc. The same is true of the Crown prosecuting the case against you. They need time to prepare the case against you, respond to your lawyer, etc. The courts require updates to the process to ensure the process is moving forward. These court updates are heard in court, and these court dates are called “To Be Spoken To” or “Set Appearance” court dates.
  • Crown Pre-Trial – A crown pre-trial is a resolution meeting held between the Crown and your lawyer. If you don’t have a lawyer, you will be represented by Duty Counsel. At this meeting, the issues surrounding your case will be discussed. Potential case resolutions will also be discussed.
  • Trial – A trial is where the charges against you will be heard in a courtroom in front of a Judge. And in some cases, the case against you will be decided by a jury.
  • Sentencing – If you are found guilty, you will have a sentencing court date during which the Judge will decide on your sentencing.

DUI court date. What to expect at your first Impaired Driving court appearance.

The first time you will appear in court for your Drinking and Driving / Over 80, Impaired Driving by Alcohol or Drugs, or Refuse Breathalyzer charge is at a court date called your “First Appearance.”

Your First Appearance is not a trial.

The Police officer does not need to be there.

Your First Appearance is the first time you appear before the court. And here’s what’s going to happen.

  • You will tell the court whether you intend to plead guilty or not guilty.
  • You will tell the court what your intentions are regarding a lawyer. If you do not intend to hire a lawyer, the court will give you direction to get legal advice (starting with duty counsel). If you have not hired a lawyer but intend to do so, you will tell the court of your intention, and the court will give you a timeline to hire a lawyer.
  • The Crown will give you the evidence that they have against you. This evidence is included in a package called disclosure.

Do you have to attend your DUI court appearance?

If you have hired a lawyer, then no. You do not need to attend your First Appearance because your lawyer will attend on your behalf.

If you have not hired a lawyer, then yes. You will need to attend your First Appearance.

Will the Police Officer that charged you attend your DUI court date?

No. The Police Officer is not required to be at your First Appearance. If your case goes to trial, then yes, the Police Officer that charged you will be called upon to give the evidence that he or she has against you.

Evidence in DUI cases: What is disclosure in your Drunk Driving case?

Disclosure is all the evidence that the Crown will use against you as they try to convict you on your DUI charges.

Disclosure includes all the Police Officer notes, witness statements, and technical documents including the notes from the breathalyzer technician.

Evidence in DUI cases: Are you entitled to all the evidence in your Drinking and Driving case?

Yes.

And, it’s important to know that the disclosure you get at your First Appearance may not be complete.

And it is critical to get complete disclosure to properly assess your case’s strengths and weaknesses to mount an effective defence.

CHAPTER 5

How to get out of a DUI in Ontario: How Lawyers fight DUI cases

What defences do Lawyers use to beat a DUI charge in Ontario?

The Crown needs to prove the DUI charges against you beyond a reasonable doubt. Your Lawyer’s job to introduce reasonable doubt.

  • Charter issues – The Charter of Rights and Freedoms protects you against the Police and the Crown’s actions.

    And Charter issues are frequently used by Lawyers to defend against DUI charges. More about Charter defences in the next question below.
  • Technical issues – DUI charges are technical by nature.

    For example, when charged with “Over 80”, that means a breathalyzer machine had a reading greater than 80 mg of alcohol per 100 mL of your blood.

    There may be technical issues with the device – perhaps the machine did not function properly, or someone did not properly maintain the device.

  • Evidence to the contrary – Your lawyer may find evidence that contradicts the DUI charges you are facing.

    For example, with a Refuse Breathalyzer charge, there may be a valid medical reason you could not take the test (or why you did not properly blow into the device).

    If you had a cold or some respiratory issue, that evidence might be enough to raise reasonable doubt to win your case.

Can you get your DUI case dismissed?

It’s possible.

The Crown (the Lawyer representing Canada’s government and is responsible for prosecuting the DUI charge) can only proceed with the charges against you based on passing these two tests.

Test #1: Is it in the public interest to pursue the DUI charges against you?

  • The Crown acts on guidelines from the Attorney General of Canada. From a public policy perspective, the Crown is compelled to pursue the prosecution of DUI charges. Doing sends a message to the public that society will not accept people driving under the influence of alcohol or drugs.

Test #2: Is there a reasonable prospect of a conviction?

  • The Crown can only pursue the charges against you if there is a reasonable prospect of a conviction.
  • It’s your Lawyer’s job to raise doubt in the case against you. If those doubts rise to the level that there would be no reasonable prospect of a conviction, then the DUI charges against you would get withdrawn.

If it’s your DUI first offence, will the DUI charge get dropped?

No.

The fact that you have never been charged before does not matter.

The fact that you are an outstanding citizen does not matter.

The only way the DUI charges against you will be withdrawn is in the event there are significant problems in the Crown’s case.

And, these significant problems are so severe that there is no responsible prospect of a conviction. Only then will the DUI charges against you get withdrawn.

CHAPTER 6

What is Canada’s Charter of Rights and Freedoms?

The Charter of Rights and Freedoms, known as the Charter, sets out those rights and freedoms that Canadians believe are necessary for a free and democratic society.

The Charter is one part of the Canadian Constitution. The Constitution is a set of laws containing the basic rules about how our country operates.

How can the Charter of Rights and Freedoms be used to get out of a DUI charge?

The Charter is important because it protects basic rights and freedoms essential to keeping Canada a free and democratic society.

  • In the context of a criminal charge, this is incredibly important because the Charter ensures that the government, or anyone acting on its behalf, doesn’t take away or interfere with your rights or freedoms unreasonably.

And these aren’t just words. These words have real power and real meaning.

  • The Charter is effectively a rule book by which every one acting on behalf of the government – including the police and a crown that may be prosecuting your case — must follow.
  • And these rules are NOT optional. If these rules are not followed in the context of your criminal charge, then your charges may get withdrawn.

Now the charter has 34 sections.

  • Not every section has applicability to a criminal charge. But the ones that have been interpreted by courts since the early 1980s, when the charter was added to the Constitution.

There have been thousands of cases that have gone to court to interpret the meaning of the charter.

  • And these court rulings effectively flesh out in more detail the rules that the police and the crown must follow on how they must conduct their case against you.
  • In theory, that sounds easy. A court makes a ruling, and the police and crowns read those cases – which are effectively the rules on how they have to do their job.
  • But we are all human, and we all make mistakes, including the police and the crowns. But when they make a mistake, that mistake, if it breaches your charter right, may result in a case getting thrown out and withdrawn.
  • And if that happens, you walk away as if nothing happened.

What are examples of Charter of Rights and Freedom defences used to beat a DUI charge?

Lawyers rely heavily on Charter defences in DUI cases.

Here are some common examples.

  • Were there “reasonable and probable grounds” upon which the Police arrested you?

    The Police can only arrest someone if they, in fact, have committed a crime or were in the process of committing a crime.

    If a Lawyer can establish that there were no “reasonable and probable grounds” for the arrest, then the DUI charge would get withdrawn.

  • Were you given your right to speak with a lawyer?

    You have a right to speak with a lawyer.

Your Charter of Rights and Freedoms, Right to Counsel, go deeper than just the right to speak with a lawyer.

  • You have the right to speak to a lawyer of your own choice. So, if the Police force you to talk to a lawyer, the Police may have breached your Charter rights.
  • You have a right to speak to a lawyer in privacy. If the Police did not provide an environment where your conversation was genuinely private, then the Police may have breached your Charter rights.
  • There are more Charter rules in regards to your right to counsel. And the Police must follow these rules. If not, then it may be possible to get your DUI charges withdrawn.

Will your DUI case go to trial in a reasonable period of time?

The Charter recognizes that you have a right for your case to be heard at trial in a reasonable period of time.

The longer your case drags on, not only does the uncertainty cause stress in your life, the evidence surrounding your case may get ‘dated’ and may cause harm to you being able to mount a proper legal defence.

For these reasons, the Charter requires that your case proceeds to trial within a reasonable period of time. If your case drags on beyond these time limits, it may be possible to get your case withdrawn.

CHAPTER 7

How do I get my license back after a DUI charge?

One of the most important issues people face when convicted of a DUI is, “how can you get your driver’s license back?”

To understand how to get driving again, you first need to understand the driving prohibitions you will face.

  • You will face an automatic driving prohibition from the federal government – The Criminal Code of Canada is federal law. Under the Criminal Code, you will face an automatic driving prohibition.

    For a first conviction, the minimum driving prohibition will be 12-months.

    For a second conviction, the minimum driving prohibition will be 24-months.

    For a third conviction, the minimum driving prohibition will be 36-months.

  • You will also be facing an automatic driving suspension from the provincial government.

What is the DUI “Back On Track” program?

When convicted of a DUI, the Ontario government requires that you complete the “Back on Track” program.

The “Back on Track” program is a remedial program to teach you about myths and facts about alcohol and drugs in the context of operating a vehicle. The goal of the program is to prevent you from committing DUI crimes in the future.

If you do not complete the “Back on Track” program, you will not be able to get your license back.

After you complete the mandatory driving prohibition (both from the federal government and the provincial government), how do you get your license back?

You will need to go to the Ontario Ministry of Transportation and apply to get your driver’s license back.

The Ontario Ministry of Transportation will confirm that you have completed the “Back on Track” program.

If you are charged with a DUI but have not yet gone to trial, can you get your license back before trial?

Yes.

90-days from the date you were charged with a DUI, you can go to the Ministry of Transportation of Ontario and pay the license reinstatement fee. Assuming you do not have any other restrictions on your driver’s license, then you can get your license back.

You will be able to drive until the conclusion of your trial. If you win at your trial, you will keep driving. However, if you lose at trial, you will have to surrender your driver’s license for the time period determined by the Judge.

You’ve been offered to drive again under the Ontario Ignition Interlock Program. Should you do it?

Short answer. Most likely, no.

Here’s the longer answer.

In Ontario, if you enter a guilty plea to your DUI, you may be able to participate in the Ontario Ignition Interlock Program.

The conditions to be eligible for this program include:

  • This must be your first DUI conviction; and
  • There must be NO drugs involved; and
  • If there was an accident, there must be no injuries or deaths; and
  • You must enter a guilty plea within 90-days of being charged.

If you meet these conditions, you can start to drive again after 90-days with an interlock device installed in your vehicle.

The advantage of agreeing to the Ontario Ignition Interlock Program is that you will be able to drive again (with the interlock device) 90-days after you plead guilty. So you will “save” 9-months of a driving prohibition.

The disadvantage of agreeing to the Ontario Ignition Interlock Program is that you will enter a guilty plea, which means you will get a criminal record. And, with a DUI conviction on your driving record, you will be subject to significant insurance rate increases.

In contrast, if you fight the DUI charge and win, you walk away as if you were never charged before. And, all the evidence against you gets destroyed.

Bottom line. There is not a lot of benefit to participating in the Ontario Ignition Interlock Program. You are likely better off fighting the DUI charge.

How Do I Fight a DUI / Impaired Charge?

The most effective way to fight the charge is to hire an experienced lawyer. The results of your DUI / Impaired charges rest with analyzing your disclosure or evidence, speaking with the prosecutor and determining the next steps. An experienced legal professional knows best how to navigate the complex court system to minimize the penalties for your charges.

How Does a DUI / Impaired charge affect my ability to work?

An Impaired Driving charge is a very damaging conviction, resulting in a criminal record. For employers, this is a serious charge to have when applying to or trying to keep current employment.

How Long does a DUI / Impaired charge stay on your record?

Generally, it will remain unless you apply for a pardon, and this could take years, decades, or more

How Do I Get DUI / Impaired Driving Charges Dropped?

In order to get your charges dropped, there would have to be a fatal error in the Crown disclosure or evidence. If this is the case, a legal professional would argue to have the charges dismissed.

A free call may lead to a higher chance of getting your charges withdrawn than doing it yourself.
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