15 drinking and driving questions asked to a criminal lawyer
Criminal law is complex and the drinking and driving laws are getting stricter. This page might help you by answering to the most frequently asked questions about impaired driving.
Drinking and driving and criminal record
1- Can I get a criminal record by drinking and driving?
Yes. As written in the the Canadian criminal law, whoever is guilty of impaired driving or driving after having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds 80 mg of alcohol in 100 mg of blood, automatically gets a criminal record, no matter his intoxication level. After many years, you can ask for a pardon to get rid of this criminal record.
Travelling to the United States
2- Can I go to the United States if I have an impaired driving record?
Yes. On 1st of August 2008 (could change if state of alert bound to terrorist attacks is decreed), the official American’s borders site indicated that any person with only one impaired driving record can travel to the United States. However, it is quite different if that same person has more than one impaired driving record or has other kind of criminal record.
Restricted driving license
3- Can I get a restricted driving license if I have an impaired driving record?
No. The restricted driving license cannot be authorised in a case of impaired driving. This type of license can only be accorded, under specific conditions, to someone who has lost his regular license because of traffic infractions. You can however get an alcohol ignition interlock device in your vehicle, but the regular suspension is still applicable (3 months for a first offense), if your blood intoxication was under 160 mg of alcohol in 100mg of blood.
Care or control of a vehicle
4- Is it true that I can have a criminal record and a suspension of my driving license while being impaired by alcohol even if I am not driving?
Yes. Someone sitting at the driver’s place in a car can be charged and face the same consequences (license suspension, criminal record) even if this person had no intention of driving this car. This is a slightly different offense which is called being in care and control of a vehicle while being impaired.
Refusal to provide a breath sample
5- Is it an obligation to give a breath sample? (Roadside in the approved screening device or at the police station in the approved instrument)
Yes. As long as the police officer did not act illegally according to the Canadian Charter of rights and freedoms or the Criminal Code (illegal arrest, violation of the right to talk to a lawyer, unreasonable delays, etc.) which is hard to determine by yourself at that moment, criminal lawyers will almost always recommend that you provide a breath sample (or blood sample) and let your lawyer examine your case afterwards to determine if there has been any error committed by the police officer (police statement). You must never forget that refusing to provide a breath sample without justification leads you to similar charges and the same consequences (criminal record, driving license suspension, etc.)
Questions from the police officer
6- If police officers ask me what I have been drinking, do I have to tell them exactly what I have been drinking?
NO! It is greatly recommended not to do so. After giving you the possibility to talk to a lawyer, police officers have the right to ask you ANY question that may help THEM accumulate evidence AGAINST YOU. So don’t! Many cases could have gone much better if the accused would not have made any statement to the police.
Driving and alcohol consumption
7- If my breath clearly shows that I’ve been drinking, should I still be hiding the truth?
Yes. The alcohol odour in your breath, even a strong one, reveals nothing but the fact that you have been drinking alcohol “recently”. It does not indicate anything about the quantity that you have been drinking.
Win an impaired driving trial
8- If the breath sample analysis reveals a result higher than the limit permitted, is there still a way to win the case?
Yes, definitely (see “acquittals examples” section) even if the intoxication is way higher than limit permitted. There are many ways to win this type of case. Police officers often make fatal errors as: using improper instruments, violation of their legal obligations, exceeding delays for tests, having insufficient reason to ask for a breath sample, violation of constitutional rights (the right to talk to a lawyer, the right to be tried in a reasonable delay...) etc. A criminal lawyer can find the flaw that could save you from having a criminal record.
Costs for a drinking and driving trial
9- How much can cost an impaired driving trial?
It is really hard to answer this question because so many things are different from a trial to another (duration of the trial, number of witnesses, case’s complexity, etc.) Only a meeting with Me Gariépy can help you figure that out.
10- Can any type of lawyer represent me in such a case or do I really need to choose a criminal lawyer?
Lawyers can be acting in many different law subjects, but it is greatly recommended that you choose a lawyer who is a criminal law specialist for any criminal charges (impaired driving, dangerous driving, hit and run, etc.) You would not get your eyes fixed by a cardiologist; it is exactly the same for lawyers. A civilist lawyer for example, would not be able to see every opportunity and flaws in the file like an experimented criminal lawyer like Me Gariépy would see.
Criminal lawyer everywhere in Quebec
11- Your office being located near Montreal, does that mean you can’t represent someone elsewhere?
Of course not. I frequently have trials everywhere in Quebec, Ontario and even the rest of Canada. The fees are alike because I usually get to that place only for the trial day. I get other lawyers of this district working for me for other parts of the process (pro forma, fixing dates, sending documents, etc.) Everything is being approved by myself and done under my supervision. Neither you nor I have to go there more than once; this is why trials far from my office are not more expensive for my clients.
Ontario and Quebec, same Criminal Code
12- If I get arrested in Ontario, can I ask for you to represent me in my drinking and driving case?
Yes. Criminal law being the same everywhere in Canada, I can defend you with the same strategies I use in Quebec (see “acquittal examples” section), no matter where you were arrested. In some provinces, we need to ask for an authorization from the Provincial Bar, but Quebec and Ontario have a special agreement for a Quebecor lawyer to practice criminal law in Ontario without previous demand. The agreement is also valid for an Ontarian lawyer to practice criminal law in Quebec.
Alcohol concentration exceeding the legal limit
13- After drinking, how can I know if I am over the legal limit of 80 mg of alcohol?
It is really hard to calculate your own alcohol concentration. Many factors need to be considerate in your calculation (your age, your weight, your height, etc.) and only an expert (chemist, biochemist, pharmacologist, etc.) could calculate it precisely. One drink can represent only 25 mg of alcohol for a person and 40 mg for another, depending on the factors mentioned above. What makes it even more complicated is that the alcohol elimination rate that is usually around 15 mg per hour in the population, can vary between 10 mg and 20 mg.
Commercial breath sample analyzers
14- Are the breath samples analysers installed in bars or sold in drugstores are reliable to determine if I am over the legal limit?
NO! The results obtained with these instruments cannot be considered in a trial for drinking and driving. If you believe necessary to do such a test, you probably believe you might not be in a proper condition to drive. You shouldn’t drive in these circumstances therefore avoiding the risk to get arrested.
Alcohol concentration under the legal limit
15- Can I be found guilty of impaired driving even if my alcohol concentration was under the legal limit of 80 mg?
Yes. You can be found guilty of impaired driving because of the consumption of drugs, of alcohol or a combination of drug and alcohol. This combination can be linked with sleepiness also that doesn’t matter. In a case where you are under the legal limit, you will not be charged of driving over the legal limit, but with impaired driving. Police officers can observe symptoms (erratic driving, uncertain walk, slurred speech, red and watery eyes etc.) and accumulate evidence that leads to this accusation. So if you get arrested, be careful and remember that police officers are always looking for any sign that could tends to show that you are impaired by either alcohol or drug.