The Law

A. Legislation

s. 253(a) operation or care or control of a motor vehicle while one’s ability to drive is impaired by a alcohol or drug

To be found guilty of this offence the prosecutor must prove that your actual ability to operate a motor vehicle is impaired by alcohol or drug. Evidence of erratic driving or physical symptoms of impairment (co-ordination difficulties, slurred speech etc.) will be looked at by the court.

s. 253(b) operation or care or control of a motor vehicle with a blood alcohol level over 80 mg%

To be found guilty of this offence the prosecutor must prove your blood alcohol level was over 80 milligrams of alcohol in 100 millilitres of blood at the time of driving. This is usually done by the prosecutor using a certificate that states the police tested your breath and found a blood alcohol level over the legal limit. Blood and urine tests can also be conducted in certain circumstances, usually for medical reasons, to prove the same thing.

Both sections 253(a) and 253(b) are typically charged. You can be put on trial and found guilty of one or both, but you cannot be convicted and sentenced for both (as they are similar ways of committing the same crime).

Impaired driving or driving over the legal limit can be committed in two basic ways: by actually driving a car when impaired, or by having “care or control” over it. “Care or control” is a complex legal term. Generally, it covers a situation which involves some level of control over a motor vehicle short of actual driving which still amounts to a “risk” that the vehicle may be placed into motion. For example, someone found asleep in their vehicle may be found guilty of this offence depending on the exact nature of the evidence against them (ie was the engine running? was the owner in the driver’s seat? where were the keys located? what was the person’s intent?).

s. 254(5)failure or refusal to provide a sample of breath upon demand of a peace officer

The first situation in which this charge can arise is in relation to a demand for a “screening” test at the roadside. The purpose of a screening test is to assist the police in determining whether or not someone is likely impaired or over the legal limit. A “pass” will usually result in the motorist being sent on their way. A “warn” will usually result in a 24 hour suspension but no charge. A “fail” will result in the officer taking the suspect to the nearest police station for a breath test using a fully approved testing device. In other words, the roadside device is an investigative tool which tells the officer whether he should, or should not, investigate his suspicions further.

The second situation in which this offence arises is in relation to the test administered at the police station (or at a mobile breathalyzer van) with an approved testing device. It is only this test which can be used in court to prove your actual blood alcohol level.

A “failure to blow” is established when the prosecutor proves you did not provide a suitable breath sample. This normally involves a situation where the trained operator does not believe he has received a suitable sample, even though the suspect may appear to be blowing into the machine. A “refusal to blow” is where the suspect states by his words or actions that he will not provide a sample and makes no apparent attempt to do so.

In all of these situations the prosecutor must also prove that you failed or refused to blow without a “lawful excuse.”

B. Procedural Steps and Rights

When charged you will normally be released with a document telling you when you must first appear in provincial court. Enough time will be provided between arrest and first appearance for you to hire, or at least talk with a lawyer in the interim. Before you can be required to enter a plea of guilty or not guilty to the charges you have an absolute right to obtain and review disclosure of all relevant evidence in the prosectuor’s possession. This includes all reports, notes and witness statements obtained or prepared in relation to the charge.

At first appearance the prosecutor will elect to proceed by way of summary conviction or by indictment. A summary conviction election means you will face a less serious maximum penalty, but will be restricted to having your case heard in provincial court. This is commonly the case for first time offenders where there are no serious aggravating circumstances.

An indictable election provides for a greater maximum penalty. Because the potential consequences of conviction are much greater you have the right to have your case heard in the superior court, which in Alberta is called the Court of Queen’s Bench. You will also be given the option of having a jury hear your case instead of a judge alone.

C. Trial

A trial will normally take place within 2 – 6 months following your plea of not guilty. You are generally not obligated to tell the prosecutor or the court what your defence will be until after all the evidence being called by the prosecutor against you has been heard. There are some exceptions to this rule. For example, advance notice must be provided where you intend to argue that the Charter of Rights was violated by the police, or where you intend to call an expert witness (eg. pharmacology or alcohol expert).