It is a criminal offence to drive a motor vehicle with over 80 mg per 100 ml of alcohol in your blood. This is commonly called an “over 80” charge and applies whether or not you show any physical signs of impairment due to the alcohol. The over 80 offence does not take into account the tolerance of alcohol which some people have, thus beguiling the physical signs of impairment. It is also an offence to drive while your ability to drive is impaired by alcohol as evidenced by physical signs of impairment whatever your blood alcohol level is. While the over 80 charge is proven by the technical evidence of breathalyzer samples, impaired driving requires evidence based on a police officer’s observations. Physical signs of impairment, as you can imagine, include slurred speech, bloodshot eyes, and problems with walking the line when invited to police headquarters. In practice, both charges are laid when the blood alcohol level is over 80 but one charge is dropped or stayed, usually the impaired driving charge, when the other charge is proven because you cannot be convicted twice for an offence based on the same material facts. Double jeopardy!
The principles of sentencing which are applied to other criminal code offences apply to drinking and driving offences. In considering a fine or imprisonment in addition to a suspended driver’s licence, the court considers mitigating and aggravating factors when sentencing the convicted person. Some of the aggravating factors are: a recent criminal record for driving charges, committing the offence when disqualified from driving, a blood alcohol level of over 160, bad driving on a busy road, and causing an accident, especially physical injury. Mitigating factors include: being a first offender, simply being stopped by the RIDE programme, no evidence of bad driving, and the completion of alcohol treatment or counselling programme as a result of previous drinking and driving convictions.