Written By: Ravi Prithipaul

Many misconceptions about drunk driving exist and, because some people are misinformed, they end up driving impaired or over the legal limit. In efforts to educate readers, a few common impaired driving myths are debunked.Myth #1: “Impaired” Means “Intoxicated”

“Drunk driving” is common terminology, so it’s understandable that people might think that driving after a few drinks is acceptable because they are not intoxicated. Yet, the Criminal Code defines two basic offences: (1) driving (or having care or control of) a motor vehicle while one’s ability to drive is impaired by alcohol and/or a drug, and (2), driving (or having care or control of) a motor vehicle while one’s blood-alcohol concentration (“BAC”) is at or over 80mg of alcohol per 100mL of blood.

More will be said about “care or control” later (see “Myth #3”, below).  As well, it is important to note that 80mg per 100mL of blood is the Criminal Code limit.  Lower blood alcohol levels are specified in provincial traffic safety legislation such as Alberta’s Traffic Safety Act.

What is apparent for the time being is that the criminal law distinguishes between “impairment” (by alcohol and or a drug) and BAC at or over 80mg/100mL of blood.  Some people can be impaired in their ability to drive but under the legal limit.  On the other hand, some individuals show few signs of impairment notwithstanding that their BACs are well over 80mg/100ml.
It is also essential to understand that any impairment of the ability to drive, even if only slight, is sufficient to constitute the offence of driving or having care or control while impaired. The prosecution does not have to prove that you are “intoxicated” or grossly impaired.  Furthermore, the fact that you were not demonstrably “impaired” may not matter if the prosecution can establish that your blood-alcohol level exceeded the legal limit.

The Criminal Code further clarifies that “impairment” can be caused by alcohol, drugs, or a combination of alcohol and a drug. Drugs include over the counter and prescription medications. As result, people can be charged with impaired operation (or care or control) of a motor vehicle after the consumption of alcohol, whether or not they are over the legal limit, or as a result of taking any drug, illicit or not, either alone or in combination with alcohol.

Myth #2: Young Drivers Are More Likely To Become Impaired

While younger drivers may be more inexperienced and have a greater likelihood of being involved in a fatal impaired driving collision, they are not necessarily more susceptible to being impaired. The risk of being impaired as a result of the consumption of alcohol, drugs or medication, can actually increase with aging.

All things being equal, an older person who drinks the same amount as a younger person will have a higher blood-alcohol concentration (“BAC”). There are various physiological reasons.  We accumulate fat as we age, and the water content of body tissues decreases. The alcohol consumed by an older person will be less diluted throughout his or her tissues, resulting in a comparatively higher BAC versus the same amount of alcohol consumed by a younger individual whose fat content is lower. Liver and kidney functions decrease with age which means that the body will eliminate alcohol less efficiently, and BAC will stay higher for a longer period of time.

This does not mean that younger people can drink more. Regardless of age, the consumption of alcohol or drugs impairs driving ability.

Myth #3: Your Licence Can’t Be Suspended If You Aren’t Driving

It is a crime to “operate” or to “have care or control” of a motor vehicle while under the influence of drugs or alcohol, whether the vehicle is in motion or not. You may not be driving when the police arrive, but your presence in or around the vehicle can still be considered sufficiently dangerous that you could be considered in violation of the law.
In the case of R v Boudreault, 2012 SCC 56 (CanLII), the Supreme Court of Canada defined “care or control” as referring to the danger that arises from the interaction between an impaired individual and his or vehicle:

[A]cts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous.

Mr. Boudreault was drinking at a bar, became impaired, had a taxi called, went to his vehicle to wait, sat in the driver’s seat, and fell asleep. The taxi driver, on arrival, called the police. Bouldreault was found not guilty at trial in Quebec, but the Quebec Court of Appeal convicted him. The Supreme Court eventually restored his acquittal.

As the Bouldreault case illustrates, care or control situations are often difficult for police, lawyers and judges. It should be noted that the Criminal Code contains a presumption: a person found in the driver’s seat of a motor vehicle is deemed to have the care or control of that vehicle unless he or she establishes that he or she did not intend to set the vehicle in motion. However, even if the presumption is refuted, a person can still be found guilty, depending, as always, on the circumstances.

This area of the law also plays a role in the determination of the Administrative License Suspensions that are imposed as soon as a person is charged with impaired driving or care or control. In Miller (Re), 2016 ABTSB 659, Mr. Miller attempted to appeal his driving suspension on the basis that he was not actually driving, nor did he have care or control of, a vehicle at the relevant time. At the point of police apprehension, Miller’s truck was parked on the shoulder of the road and he was in the driver’s seat. The vehicle was searched for keys, but they were not located. Mr. Miller blew over the legal limit.

The Alberta Transportation Board appeal rejected Miller’s arguments and ruled that he had driven while his BAC consumed was above the legal limit. His licence suspension remained in effect.

Myth #4: You Might Get Off or Get A Reduced Sentence If You Refuse To Provide a Breath Sample

It is a criminal offence to fail or refuse to comply with a lawful demand made by a peace officer for breath or blood samples, or for a sobriety test: subsection 254(5) of the Criminal Code. While no one can force you to comply with a demand, refusing to provide one can have more serious consequences than driving while impaired or over the legal limit.

It is an aggravated (more serious) offence to fail or refuse to comply with police demands for breath, blood or sobriety evaluations in cases where there was an accident and where someone was injured or killed. In R v Suter, 2018 SCC 34, a 62-year-old driver drove onto a restaurant patio, killing a child. The driver, Mr. Suter, pleaded guilty to not providing a breath sample knowing that an accident had occurred where death resulted, but argued for a lenient sentence since he did not believe that a refusal was a violation of the law.

At trial, Mr. Suter received a four-month jail sentence and a 30 month driving prohibition. The Crown appealed and the Alberta Court of Appeal raised the sentence to 30 months’ jail (the driving prohibition was left unchanged). The Supreme Court of Canada then stated that the sentence should have been in the range of 15 to 18 months.

Myth #5: You Don’t Need A Lawyer If You Believe You Weren’t Impaired

If you have been charged with impaired driving, contact an expert criminal lawyer in Edmonton for advice. You can be charged by a police officer who has reasonable grounds to believe you may be driving under the influence of alcohol or drugs, but that does not mean you are automatically guilty. A lawyer will help you obtain and review the evidence, decide whether a defence is feasible, and advise you about the penalties which may apply.