Note: The rules and law may have changed since this article was first published. It is provided for archival purposes but you should consult with your lawyer for the current state of the law
Although the ‘Three Martini Lunch’ is largely a thing of the past, impaired driving is a common criminal charge. It remains the most likely intersection where the criminal justice system collides with the otherwise law-abiding business person. Business meetings, drinks after work, and social functions can lead to a serious brush with the criminal law, often in situations where the driver does not believe they are intoxicated.
Before proceeding, let’s be clear. We are not condoning driving after consuming any amount of alcohol. There may be a debate over when a person’s judgment is impaired by alcohol, but any consumption should prompt you to hand your keys to someone else. We are going to talk about legal implications, but also consider the moral and societal implications of what you do. As well, this article is not a substitute for specific legal advice. The circumstances are so different, and the potential consequences so severe, that you must always talk to a lawyer if you find yourself in this situation.
Driving while drinking alcohol is always illegal. But driving after drinking is only illegal when: your ability to drive is impaired by alcohol (an ‘impaired’ charge), or when there are more than 80 milligrams of alcohol in 100 milliliters of your blood (an ‘over ‘80’ charge). These two charges are different, though a drinking driver may face both following an incident. Having a blood-alcohol level of over 40 milligrams could get you a 24 hour license suspension, but not criminal charges.
You can be below the ‘over ‘80’ limit but still risk conviction through an ‘impaired’ charge, since the court considers less than ideal driving and signs of impairment by alcohol. If your ability to drive is even slightly impaired, you are perilously close to a conviction. Weaving, drifting, traffic infractions, problems parking, or slow response to police siren and lights are examples of the typical evidence used to convict. Even if your driving is fine, you may still be convicted if you are pulled over and have bloodshot eyes, odour of alcohol, flushed face, poor balance, trouble handing over your license and registration, or slurred speech. However, in a given case there may be innocent explanations for these in your defence.
Sometimes a person is charged with an ‘impaired’ where there is no actual driving seen by police. Pulling over to ‘sleep it off’ may seem logical, but if you are behind the wheel when the police arrive, especially if your car is running or the keys are in the ignition, you will likely still face charges based on care and control of the vehicle.
Assuming you have had a few drinks and are driving home, when can the police legally stop you? And what should you say? First, the police do not need to see a moving violation or driving problem in order to legally pull you over. Often these driving ‘don’ts’ catch the attention of law enforcement, but the current law is that if the police are legitimately pulling you over to look at your license and registration, check for sobriety and vehicle safety, they may do so. What they cannot do is stop you for some other reason – suspicion, curiosity, or even prejudice – anything unrelated to genuine traffic safety. It is hard to prove the police are acting outside of their authority but it happens. Often the breath samples or other evidence against the driver gets thrown out of court in those cases.
As for what you should say when the officer asks whether you have drunk any alcohol, that is ultimately a question for you to answer. When a driver admits to any prior drinking (whether one beer or a dozen), it establishes the ‘reasonable suspicion’ necessary for the officer to administer a roadside breath test. If you fail that, you go downtown for the actual breathalyzer. If you refuse to give a breath sample at the roadside when required to, you will automatically be charged with a ‘refusal’ which carries all of the same penalties as an ‘impaired’ or ‘over ‘80’ charge.
Again, call a cab or catch a ride if you’ve been drinking – it is the only way to be completely safe. If you do find yourself in contact with the law, always get legal advice for your specific circumstances.