The terms “impaired driving” and “drive while over .08” are often used interchangeably to describe a situation where an individual has been stopped by the police and charged as a result of drinking and driving.  They in fact are two separate and distinct offences.  In most instances an accused will be charged with both impaired driving and drive while over .08, assuming the impairment is due to alcohol.  The Crown however is only seeking a conviction on one of the offences and that is why there is often some confusion. 

Driving while over .08 is an allegation that at the time or within two hours of driving an accused’s blood alcohol was at least 80 milligrams of alcohol in 100 millilitres of blood.  Proof that the accused’s blood alcohol level exceeded the legal limit is generally established by a breathalyzer test being administered.  (Note that a roadside test is used for screening only and cannot be used to prove a blood alcohol level.)  Blood alcohol level can also be established by way of a blood test if the police have the grounds to make a demand for a blood sample, or an accused has blood taken at a hospital and the Crown is able to obtain a search warrant in order to seize and analyze that sample. 

There are a number of prerequisites that have to be met by the Crown in order to use a breath sample or a blood sample in trying to prove driving while over .08.  If those prerequisites are not proven beyond a reasonable doubt or there has been a Charter violation relating to the detention of the accused there will be a possible defence. 

Impaired driving is dependent on the Crown leading a collection of evidence which establishes beyond a reasonable doubt that the accused was impaired by alcohol or drugs.  Generally there has to be some evidence of consumption of alcohol and/or drugs combined with physical evidence which leads to a conclusion beyond a reasonable doubt that the person is impaired.  This would include the manner of driving, walking, talking, following instructions, demeanour, etc.  The Court will consider whether or not the physical impairment displayed by the accused is as a result of consumption of drugs or alcohol, or perhaps some other intervening factor (eg.: an accused may have suffered a stroke previously meaning that there is an innocent explanation for their manner of speech).  The Court has to decide at the end of the day whether or not the Crown has proven beyond a reasonable doubt that the collection of observations and evidence leads to a conclusion that the accused was impaired by drugs and/or alcohol. 

The McDougall Gauley LLP Defence Group has a number of lawyers with experience defending drinking and driving charges.  Their contact information is available on the McDougall Gauley website.  They also can be reached 24 hours a day, 7 days a week, at the following numbers: 

Regina: (306) 565-5128
Saskatoon: (306) 665-5412

Aaron A. Fox, Q.C.
McDougall Gauley Defence Group

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