Impaired Driving Charges in Ontario
If you have been charged with impaired operation of a motor vehicle (DUI), having more than 80 milligrams of alcohol in 100 millilitres of blood (over 80), failing or refusing to provide a breath sample, or dangerous operation of a motor vehicle, you are facing serious criminal charges with life-altering consequences.
Under sections 320.14 and 320.15 of the Criminal Code, impaired driving is one of the most commonly prosecuted criminal offences in Canada. But “common” does not mean simple. These cases involve complex scientific evidence, strict procedural requirements, and significant Charter protections. When police or the Crown fail to follow the rules, the charges can and should be challenged.
Types of Impaired Driving Charges
There are several distinct charges under the Criminal Code’s impaired driving framework. Understanding which charge you are facing is the first step in building your defence.
Impaired Operation (Section 320.14(1)(a))
The Crown must prove that your ability to operate a motor vehicle was impaired by alcohol, drugs, or a combination of both. This charge is based on the officer’s observations — your driving pattern, physical appearance, speech, coordination, and performance on field sobriety tests. The arresting officer’s subjective observations are central to the case, which means they can be challenged through cross-examination and independent evidence.
Over 80 (Section 320.14(1)(b))
The Crown must prove that your blood alcohol concentration was at or above 80 milligrams of alcohol per 100 millilitres of blood within two hours of operating a motor vehicle. This charge relies entirely on the accuracy and admissibility of the breathalyzer results. If the approved instrument was not properly calibrated, if the testing procedure was not followed correctly, or if the results were obtained in violation of your Charter rights, they may be excluded from evidence.
Refusal to Provide a Sample (Section 320.15)
Refusing or failing to comply with a lawful demand to provide a breath sample is a separate criminal offence carrying the same penalties as impaired driving. However, the demand must be lawful — the officer must have reasonable grounds, must inform you of the consequences of refusal, and must comply with your right to counsel. Challenges to the lawfulness of the demand are a common and effective defence strategy.
Dangerous Operation (Section 320.13)
Dangerous operation — commonly called dangerous driving — involves operating a motor vehicle in a manner that is dangerous to the public. This charge is often laid alongside impaired driving charges, particularly in cases involving accidents. The Crown must prove that the manner of driving was objectively dangerous, not merely careless or momentarily inattentive.
Impaired Operation Causing Bodily Harm or Death
If the alleged impaired driving results in bodily harm or death, the penalties increase dramatically. Impaired driving causing bodily harm carries a maximum sentence of 14 years imprisonment. Impaired driving causing death carries a maximum of life imprisonment. These are among the most serious charges in the Criminal Code.
The Arrest and Testing Process
Understanding how a DUI arrest unfolds is critical to identifying defence opportunities. The police must follow specific procedures at every step, and failures at any point can form the basis of a successful challenge.
The Traffic Stop
Police can stop your vehicle for a number of reasons: a traffic violation, an R.I.D.E. checkpoint, or a specific complaint. During the stop, the officer will look for signs of impairment — the smell of alcohol, slurred speech, bloodshot eyes, fumbling with documents. If the officer has a reasonable suspicion that you have alcohol in your body, they can demand an Approved Screening Device (ASD) test at the roadside.
Approved Screening Device (Roadside)
The ASD is a portable breath testing device used at the roadside. It gives a pass, warn, or fail result. A fail result gives the officer reasonable grounds to arrest you and demand a breathalyzer test at the station. You do not have a right to speak to a lawyer before providing an ASD sample. However, the demand must be made promptly, and the device must be in proper working order.
Station Breathalyzer Test
Once at the station, you will be asked to provide two breath samples into an approved instrument (typically an Intoxilyzer or a BAC Datamaster). Before providing a sample, you do have the right to speak to a lawyer. The police must inform you of this right and give you a reasonable opportunity to contact counsel. Any failure to provide this opportunity is a violation of your section 10(b) Charter rights and can result in the breath test results being excluded from evidence.
The breath samples must be taken within specific time limits, and the approved instrument must have been properly calibrated with acceptable calibration checks. Our firm works with toxicologists who can review the calibration records and testing procedures to identify any irregularities.
Blood Samples and Drug Recognition Evaluations
In cases involving drug impairment, the officer may demand a Drug Recognition Evaluation (DRE) — a standardized 12-step examination conducted by a specially trained officer. If the DRE officer concludes that you are impaired by a drug, they can demand a blood sample. The DRE process and the blood sample collection procedures are both subject to challenge.
Common Defences to Impaired Driving Charges
Despite what you may be told, impaired driving charges are not unbeatable. There are numerous defences available, and the right defence depends on the specific facts of your case.
Challenging the Traffic Stop
If the police had no lawful reason to stop your vehicle, any evidence obtained as a result of the stop may be excluded under section 24(2) of the Charter. Random stops are permitted at R.I.D.E. checkpoints, but a stop based on racial profiling or without any articulable reason (outside of a checkpoint) may violate your section 9 right against arbitrary detention.
Right to Counsel Violations
You have a right to speak to a lawyer before providing a breath sample at the station. If the police failed to inform you of this right, failed to provide you with a reasonable opportunity to contact a lawyer, or continued with the breath test before you had a chance to speak with counsel, the results may be excluded from evidence. This is one of the most common and effective grounds for challenging a DUI charge.
Breathalyzer Challenges
The breathalyzer is a scientific instrument that must be operated according to strict protocols. Challenges can include: improper calibration of the approved instrument, failure to observe the required 15-20 minute observation period before testing, mouth alcohol contamination from recent drinking, burping, or dental work, and discrepancies between the two breath samples. Our firm retains toxicologists who can review the instrument’s maintenance logs, calibration records, and test procedures to identify vulnerabilities in the Crown’s evidence.
Challenging Impairment Observations
In an impaired driving charge (as opposed to over 80), the Crown must prove that your ability to operate a vehicle was actually impaired. The officer’s observations — your driving, your behaviour at the roadside, and your performance on coordination tests — can all be challenged through cross-examination. Independent evidence such as dash cam footage, surveillance video, and witness testimony can contradict the officer’s account.
Charter Delay (Section 11(b))
Under the Supreme Court of Canada’s framework in R v Jordan, if your case takes longer than 18 months to reach trial in the Ontario Court of Justice (or 30 months in the Superior Court), the delay is presumptively unreasonable and the charges may be stayed. Our firm has successfully obtained stays of proceedings in cases where institutional delays pushed the trial date beyond the Jordan ceiling.
Care or Control Challenges
Being charged with “impaired care or control” means the Crown alleges you were impaired while in care or control of a motor vehicle — even if you were not driving. This often arises when someone is found sleeping in a parked car with the keys accessible. The defence can argue that there was no realistic risk of danger — for example, that the vehicle was parked safely and you had no intention of driving. The Crown must prove a realistic risk that the vehicle could be set in motion.
Penalties for Impaired Driving in Ontario
The penalties for impaired driving increase significantly with each subsequent offence:
First Offence
- Mandatory minimum fine of $1,000
- One-year driving prohibition
- Maximum of 10 years imprisonment (indictable)
- Criminal record
- Ignition interlock device for at least one year after reinstatement
Second Offence
- Mandatory minimum 30 days imprisonment
- Two-year driving prohibition
- Three-year ignition interlock requirement
Third and Subsequent Offences
- Mandatory minimum 120 days imprisonment
- Three-year driving prohibition
- Six-year ignition interlock requirement
- Lifetime driving prohibition possible for fourth offence
Impaired Causing Bodily Harm
- Maximum 14 years imprisonment
- Lifetime driving prohibition possible
Impaired Causing Death
- Maximum life imprisonment
- Lifetime driving prohibition
Beyond the Criminal Penalties
The consequences of an impaired driving conviction extend far beyond the courtroom:
Insurance
A DUI conviction will cause your auto insurance premiums to skyrocket. You will likely be placed in the Facility Association — a high-risk pool for drivers who cannot obtain insurance in the standard market. Annual premiums in the Facility Association can exceed $10,000 and remain elevated for years. Some insurers may refuse to cover you entirely.
US Travel
A DUI conviction will likely make you inadmissible to the United States. U.S. Customs and Border Protection has access to Canadian criminal records and routinely denies entry to individuals with impaired driving convictions. If your work or personal life involves cross-border travel, a conviction can be devastating. You may need to apply for a US Entry Waiver, which is a time-consuming and uncertain process.
Employment
A criminal record for impaired driving must be disclosed in many employment contexts. If your job requires driving — truck drivers, delivery workers, sales representatives — a licence suspension can mean immediate job loss. Regulated professionals may face disciplinary proceedings from their licensing body. Even in unregulated industries, a criminal record can limit career advancement.
Professional Licensing
Many regulated professions require disclosure of criminal charges or convictions. Teachers, nurses, real estate agents, insurance brokers, and financial advisors may all face consequences from their regulatory bodies. A conviction can result in conditions on your licence, suspension, or revocation.
Why Most Lawyers Tell You to Plead Guilty — And Why We Disagree
There is a pervasive attitude in the criminal justice system that impaired driving charges are not worth fighting. Many defence lawyers will immediately advise you to plead guilty to “minimize the damage.” The Crown will pressure you to resolve the case quickly. Even the court system is designed to move these cases through as efficiently as possible.
We take a different approach. Every impaired driving case involves scientific evidence, Charter rights, and procedural requirements that the Crown must satisfy. When we review the disclosure, we look for every possible weakness — from the legality of the initial stop to the calibration of the breathalyzer to the conduct of the officers. If there is a viable defence, we pursue it.
This approach has produced results. We have secured acquittals at trial by challenging the Crown’s evidence of impairment. We have had breathalyzer results excluded after establishing Charter breaches. We have retained toxicologists who calculated that our client’s blood alcohol level was below the legal limit at the time of driving. We have had charges withdrawn entirely where the Crown’s case could not withstand scrutiny.
Ryan Handlarski’s Approach to DUI Defence
Ryan Handlarski has defended individuals charged with impaired driving, over 80, refusal to provide a breath sample, dangerous driving, and fail to remain across courthouses in Toronto, Scarborough, Brampton, Newmarket, Oshawa, and Milton. His approach is thorough, aggressive, and informed by a deep understanding of the science behind breathalyzer testing and the law governing police conduct.
Ryan engages forensic experts — including toxicologists and forensic psychiatrists — to challenge the Crown’s evidence where appropriate. He has successfully challenged the admissibility of breathalyzer results through Charter applications under sections 8, 9, and 10(b). He has advocated for clients with cognitive disabilities whose capacity to understand police demands was compromised.
Ryan published “Roadside Saliva Testing and Marijuana” in The Lawyer’s Daily, demonstrating his engagement with evolving impaired driving law beyond the courtroom. He is a member of the Criminal Lawyers’ Association and is on the Legal Aid Ontario panel for extremely serious matters.
If you have been charged with a DUI or impaired driving offence, call to discuss your case. We will review your case, explain your options, and fight for the best possible outcome.