Canadian Criminal Law/Offences/Impaired Driving, Over 80 and Refusal

Summary
Section 253 describes two distinct but related offences. The offence of "impaired driving" prohibits the operation or care and control of a vehicle while the person's ability to operate it is impaired by drug or alcohol. The offence of "over 80" prohibits the operation or care and control of a vehicle while the person's blood alcohol concentration (BAC) is over 80mg per 100ml of blood.

These offences are some of the most heavily litigated of all criminal offences. The proof of impaired driving has basis largely on the observational evidence of eye-witnesses, usually the investigating officer. They can become complicated when involving drugs rather than alcohol as it requires a Drug Recognition Expert. The proof of the Over 80 offence requires a procedure of taking a breath or blood sample and then extrapolating the estimated BAC at the time of the offence. There are several short cuts to proof that are available under s. 258.

Both offences have the common element of operation or care and control, which becomes most uncertain when examining whether there was care or control arising from the risk of the vehicle being put in motion. These offences also often engage Charter rights under s. 8 and 9, 10(b).

Proof of Offence
In addition to the essential elements of time and date, jurisdiction, and identity of the accused, the essential elements are:

Note, the items in bold are essential elements.

Operating while impaired - 253(1)(a)

 * 1) Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
 * 2) The Accused was operating the Motor vehicle or in Care and Control of the vehicle
 * 3) there was any amount of impairment of the accused ability to drive at the time
 * 4) the impairment was by alcohol or drug at the time
 * 5) The accused voluntarily consumed the alcohol

Operating while BAC over 80 - 253(1)(b)

 * 1) The Accused was operating the Motor vehicle or in Care and Control of the vehicle
 * 2) Officer had reasonable suspicion that there was alcohol/drugs in body and so detained the accused
 * 3) The Accused's BAC was over 80 at the time
 * 4) each sample taken as soon as practicable after offence was committed
 * 5) first sample taken not later than two hours
 * 6) interval of at least 15 minutes between samples
 * 7) each sample received from suspect directly into instrument
 * 8) the instrument was an approved instrument
 * 9) the instrument was operated by a qualified technician
 * 10) the technician made an analysis of each sample

Refusal
In addition to the essential elements of time, jurisdiction, and identity, the crown should prove:
 * 1) A proper demand was given and understood;
 * 2) there was a refusal or failure to provide a proper sample; (actus reus)
 * 3) the accused intended not to provide a proper sample; (mens rea) and
 * 4) there was no reasonable excuse for refusing.

Mens Rea
The charge of impaired driving is a general intent offence.

The mens rea of the offence of impaired driving is made out by the accused's voluntary consumption of alcohol for the purpose of becoming intoxication or the accused "acting recklessly, aware that impairment could result, but persisting despite the risk".

It is not necessary that the accused have actual knowledge of the effects of drugs or alcohol. Proof of recklessness is sufficient.

Where the voluntary consumption of alcohol is proven, there is a rebuttable presumption the mens rea is made out.

The intent to be impaired can be negated in certain circumstances where the accused's drink may have been drugged.

Motor Vehicle
Under s. 2, "motor vehicle" is defined as "a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment;" Certain vehicles, such as scooters, are powered by either pedal or motor, the crown will generally have to prove that the vehicle was being operated by motor power at the time of the offence.

A vehicle that is inoperable, such as were it is out of gas, will still be a motor vehicle.

Issues

 * Proof of Impairment
 * Screening Device
 * Breath Sample Demand
 * Breath Sample Evidence
 * Care and Control
 * Refusal

Kienapple Principle
Kienapple does not prevent a conviction for dangerous driving causing death or bodily harm and impaired driving causing bodily harm or death. The first offence concerns the ability to operate a vehicle while the second offence focuses on the manner in which the vehicle was operated.