DUI - DRIVING UNDER THE INFLUENCE

DUI refers to "driving under the influence." In Canada, the offences that generally fall under the DUI heading are impaired driving, over 80, and refuse to provide a sample. When a person is charged with impaired simpliciter, the law as it currently stands allows for a conviction for driving while under the influence of alcohol or a drug.

CRIMINAL CODE DUI

The Criminal Code of Canada sets out the offence of driving while under the influence at section 253(1)(a) as follows:

253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (a) while the persons ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug...(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.

Most notably, the provision allows for conviction if the accused is impaired by either alcohol or drug, or any combination thereof.

PUNISHMENT FOR DRIVING UNDER THE INFLUENCE

A conviction for driving under the influence carries with it the same penalty structure as a conviction for driving while "over 80" or refusing to provide a sample. The punishment provision reads as follows:

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;

(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

As a result of the mandatory minimum sentences that a conviction for DUI carries, an offender - even a first time offender - will not be spared a criminal record upon conviction.

DUI DRIVING PROHIBITION

In addition to the punishment provisions of the Criminal Code, upon conviction for driving under the influence, the offender will be subject to a driving prohibition. On a first offence, the mandatory minimum driving prohibition is 1 year. On a second offence, the mandatory minimum driving prohibition is 2 years. On a third offence, the mandatory minimum prohibition is 3 years. These represent merely the minimum terms for a prohibition. It is not uncommon for a lengthier prohibition to be imposed, due to aggravating case features, such as high readings, an accident, or property damage.

DEFENCES TO DRIVING UNDER THE INFLUENCE

Unlike its counterpart offence of "over 80" as found in section 253(1)(b), the offence of "impaired simpliciter", or DUI (driving under the influence) as it is more commonly referred, requires far more subjective evidence. A conviction for "over 80" is based on the readings of a scientific instrument, and denotes a specific quantity of alcohol in a specific quantity of blood. In contrast, impaired driving charges require objective observations of witnesses. This means that in any given impaired driving DUI case, the credibility and reliability of a witness will be at issue, in contrast to the readings of the intoxilyzer 8000C, which requires very little witness testimony to be supported.

Because the evidence of an impaired driving charge stems from the viva voce evidence of witnesses, most impaired driving defences revolve around "explaining" or building an alternative theory to explain away indicia of impairment. As a result, the abilities of your lawyer to ferret out the alternative explanations for the observed indicia becomes paramount, and a skilled cross-examiner is needed to mount a viable defence.