What Constitutes Impaired Driving in Ontario and What Could be the Consequences?

Commonly known as Driving Under the Influence (DUI), Driving While Impaired (DWI) or simply drunk driving, the act of driving while under the influence of drugs or alcohol can lead to serious legal consequences that can affect your liberty and your ability to drive. If you drive while under the influence of alcohol or drugs, you could face an immediate license suspension and be charged with a variety of both Criminal Code and Highway Traffic Act (HTA) offences. Factors such as whether or not you comply with a request to provide a breath sample, your blood alcohol content, and how impaired you seem, will determine whether criminal or provincial offences charges are laid. Given the seriousness of the potential consequences, representation by an experienced criminal lawyer in Mississauga or Brampton is of the utmost importance.


Criminal Code Offences
The Criminal Code stipulates that you can only operate a motor vehicle legally if your mental and motor skills are not impaired and your blood alcohol content (BAC) is no higher than 80 mg per 100 ml of blood. That is to say, “Impaired Driving” and “Over 80” are separate and distinct Criminal Code offences. One of the consequences of this distinction is that your BAC does not have to be over the 0.08 legal limit for you to be charged with impaired driving. Similarly, even if there is no evidence of impairment, you can still be charged if your blood alcohol content is above the legal limit.

In addition, you may be charged with either of these offenses even if there is no evidence you were actually driving the vehicle. Depending on factors such as your location within the vehicle, or whether or not the key was in the ignition, you may still be charged based on a determination that you had “care or control” of the vehicle while impaired or over 80. If, through committing either the offense of Impaired Driving or Over 80, your actions cause either bodily harm or death, the charge becomes significantly more serious. Finally, a refusal or failure to provide a breath sample upon demand is also an offense under the Criminal Code.

To summarize, the Criminal Code charges for impaired driving are:


  • Operating a motor vehicle with a BAC in excess of 0.08%; 
  • Impaired operation of a motor vehicle;
  • Impaired operation of a motor vehicle causing bodily harm;
  • Impaired operation of a motor vehicle causing death; and
  • Refusing or failing to provide a breath or blood sample.

Post-Conviction Consequences
Certain minimum consequences will result if you are convicted of any of the above noted Criminal Code offences:

For a first offence:

  • Suspension of your driver’s license for 1 year*
  • A 1 year Criminal Code Driving Prohibition 
  • A minimum fine of $1,000
  • Mandatory education program
  • Installation of an ignition interlock system/alcohol screening device in your vehicle for 1 year**

* Where a plea is entered within 90 days of the offence date, and certain Ministry requirements are met, the license suspension can be reduced to 3 months and the Criminal Code prohibition will not prevent you from driving after that period (“Stream A”). After the 90 day period, meeting Ministry requirements will result in a reduction to a 6 month suspension (“Stream B”)

** The minimum interlock installation period under “Stream A” is 9 months. In all other circumstances, including “Stream B”, the minimum period remains 1 year. Stream “A” and Stream “B” are not available for individuals convicted of “Impaired Operation” where drugs contributed to the impairment.
For a second offence:
  • Suspension of your driver’s licence for 3 years (if the previous conviction was within 10 years)
  • A 2 year Criminal Code Driving Prohibition
  • 30 day minimum jail sentence
  • Mandatory education program
  • Installation of an ignition interlock system/alcohol screening device in your vehicle for 3 years


For a third offence and subsequent times:

  • Lifetime licence suspension (if the previous conviction was within 10 years; can be reduced to 10 years if certain conditions are met)
  • A 3 year Criminal Code Driving Prohibition
  • 120 day minimum jail sentence
  • Mandatory education program
  • Variable interlock periods (depending on sequence of prior convictions)


Depending on the circumstances of the new charge, and the length of time that has elapsed since the previous conviction(s), a defence lawyer may be able to work out an arrangement with the Crown Attorney to treat a second or third charge as a first offence, thereby lessening the minimum punishments.

If the offense involves bodily harm or death, the maximum penalties increase substantially. Where there is no injury or death, the maximum penalty, regardless of the number of previous convictions, is 5 years imprisonment. Where injury or death has occurred, even on a first offense, the maximum penalties are 10 years and life respectively.


Further Provincial (HTA) Implications

If you register a BAC from 0.05 to 0.08 (commonly referred to as “the warn range”), or fail a “Standard Field Sobriety Test”, you can expect to face provincial administrative consequences. These are not criminal charges and are commonly handled with the assistance of a licensed paralegal.

There are, however, a number of ways in which an Impaired Driving or Over 80 charge can involve the HTA. Most immediately, you may face an automatic 90 day license suspension effective upon arrest. This occurs when you are charged with either “Over 80” or “Refuse”. If you are requested to perform, and fail, a “Standard Field Sobriety Test” and end up being charged only with Impaired Driving, your license will be suspended as follows: 

First suspension - 3 days
Second Suspension - 7 days*
Third Suspension - 30 days*

*to count as a previous suspension, the suspension must have occurred within five years of the current suspension

Where there has been a license suspension upon arrest, your vehicle will also be impounded for a period of 7 days as a result of HTA provisions

Finally, depending on factors such as how much over the legal limit your readings are, a defence lawyer may be able to negotiate a plea to the HTA offense of “Careless Driving”, thereby avoiding a Criminal Code conviction.

Consult With Jaki Freeman & Associates, DUI Lawyers in Mississauga or Brampton

If you are arrested or charged with impaired driving, our DUI lawyers in Mississauga or Brampton can assist you. We have defended criminal cases for over 20 years, for clients ranging from young to adult offenders. Contact our criminal lawyers in Brampton or Mississauga for help at freemanlaw@rogers.com or 905-455-6000. Our initial consultation is free.

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