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ALPHABETICAL LISTING NUMERICAL LISTING CATEGORICAL LISTING

INTRODUCTION AND BRIEF DESCRIPTION
Section 253 of the Criminal Code sets out the offences of impaired driving and over 80, commonly referred to as DUI offences.

SECTION WORDING
253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (a) while the personís ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (b) having consumed alcohol in such a quantity that the concentration in the personís blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

EXPLANATION
Section 253(1) sets out the offence of operating a motor vehicle while impaired by alcohol or drug. It further sets out the offence of "over 80". The two sections create criminal offences for difference cross sections of the broad concept of "drinking and driving". For this reasons, the two sections are often charged together, even though Canada's Kienapple principle (i.e. double jeopardy) will generally prohibit convictions on both. Despite the heavy degree of overlap, it is well established that a person can be impaired to operate a motor vehicle, and yet not "over 80", and similarly could be "over 80", and not necessarily impaired.

STRATEGY
As a general rule, the Crown will build their case for impaired simpliciter using police and civilian witnesses. This will necessitate viva voce evidence, and it will include observations about the indicia of impairment, such as glassy eyes, slurred speech, unsteady on her feet, difficulty located driver's licence, and so forth. Generally, the witnesses will have no previous knowledge of the client, and accordingly they will lack a reference point baseline to compare the indicia to. That being said, some indicia are obvious (i.e. he threw up on the ground as he exited the vehicle). Additionally, the Crown case may be built on observations of the driving directly (i.e. the car was swerving all over the road). In contrast, an "over 80" case is based on the readings generated by the breathalyzer. In previous days, the classic defence was known as "evidence to the contrary", whereby a witness would recount their drinking pattern and a toxicologist would opine as to what the readings should have been, thereby negating the validity of the machine. This defence was disbanded statutorily, leaving only more direct "care and control" and "as soon as is practicable" defences available to invalidate the test results. In addition to all of the aforementioned considerations, impaired and "over 80" cases are often litigated on a Charter basis. Typical avenues of inquiry include whether rights to counsel were provided in a timely and adequate fashion, and whether the detention and search of the accused was in accordance with Charter principles.

QUESTIONS AND ANSWERS
Q.Why am I charged with both 253(a) and 253(b)? A.Section 253 of the Criminal Code of Canada creates two distinct offences for drinking and driving generally. The first, impaired simpliciter pursuant to section 253(a) is subjective. Specifically, the question to be asked is whether the accused's ability to operate a motor vehicle was impaired to any degree. In contrast, 253(b) requires that a specific quantity of alcohol be in a person's blood, regardless of whether the person's ability is actually impaired. Practically speaking, culpability on one will tend to militate towards culpability on the other. However, there are cases where a person can be impaired after having had only one drink, and thus be "under 80" despite the impairment. Similarly, a seasoned drinker could be well "over 80" and show no outward signs of intoxication. The two offences are proven using different methods, and thus give the Crown different routes to conviction. The penalties for both offences are the same.
Q.What are the potential penalties and punishments if I am convicted of over 80 or impaired driving or DUI? A.The punishment imposed by the court will depend on the facts of the specific case in question. Typically, for a first time offender, a fine of not less than $1000.00 is imposed. A second time offender will be subjected to a mandatory minimum punishment of 30 days jail, and a third time offender will be subjected to a mandatory minimum punishment of 120 days in jail. However, these are all minimum punishments. The punishment imposed can be significantly greater of there is an accident, fatality, or any aggravating factors such as elevated breathalyzer readings or atrocious driving. In addition, a driving prohibition of 1, 2 or 3 years can be imposed. For repeat offenders, this can be increased to a lifetime prohibition. Finally, reference must be made to the provincial "Highway Traffic Act" or equivalent legislation, which typically includes an additional "suspension" provision which is trigger upon criminal conviction.

RELATED LINKS
https://www.paullewandowski.com/criminal-defence-services/impaired-driving/index.phpA criminal defence lawyer's page detailing impaired driving charges and the types of defences available.
https://www.paullewandowski.com/criminal-defence-services/impaired-driving/over-80-253b.phpA criminal law firm discusses the offence of "over 80", as found in section 253(b) of the Criminal Code of Canada.
https://www.paullewandowski.com/criminal-defence-services/impaired-driving/driving-under-the-influence-dui.phpA criminal defence lawyer's analysis of section 253(a) of the Criminal Code of Canada, detailing some of the defences available for a charge of impaired simpliciter.
https://www.paullewandowski.com/criminal-defence-services/impaired-driving/refuse-to-provide-breath-sample-254/index.phpAn analysis of the criminal offence of refusing to provide a breathalyzer sample.
http://www.gavrancriminaldefence.comInes Gavran is a Newmarket criminal defence lawyer who defends impaired driving charges.
excessive-use-of-forceThe charges against a man were withdrawn after Paul Lewandowski exposed the excessive use of force used by police during the arrest.
reasonable-doubtAn overview of the legal concept of "reasonable doubt."

RELATED SECTIONS
s. 252(2)Evidence
s. 253(1)Operation while impaired
s. 253(2)For greater certainty
s. 254(1)Definiton of analyst
s. 254(1)Definition of approved container
s. 254(1)Definition of approved instrument
s. 254(1)Definition of approved screening device
s. 254(1)Definition of evaluating officer
s. 254(1)Definition of qualified medical practitioner
s. 254(1)Definition of qualified technician
s. 254(2)Testing for presence of alcohol or a drug
s. 254(2.1)Video recording
s. 254(3)Samples of breath or blood
s. 254(3.1)Evaluation
s. 254(3.2)Video recording
s. 254(3.3)Testing for presence of alcohol
s. 254(3.4)Samples of bodily substances
s. 254(4)Condition
s. 254(5)Failure or refusal to comply with demand
s. 254(6)Only one determination of guilt
s. 254.1(1)Regulations
s. 254.1(2)Incorporated material
s. 254.1(3)Incorporated material is not a regulation
s. 255(1)Punishment
s. 255(2)Impaired driving causing bodily harm
s. 255(2.1)Blood alcohol level over legal limit bodily harm
s. 255(2.2)Failure or refusal to provide sample bodily harm
s. 255(3)Impaired driving causing death
s. 255(3.1)Blood alcohol level over legal limit death
s. 255(3.2)Failure or refusal to provide sample death
s. 255(3.3)Interpretation
s. 255(4)Previous convictions
s. 255(5)Conditional discharge
s. 255.1Aggravating circumstances for sentencing purposes
s. 256(1)Warrants to obtain blood samples
s. 256(2)Form
s. 256(3)Information on oath
s. 256(4)Duration of warrant
s. 256(5)Copy or facsimile to person
s. 257(1)No offence committed
s. 257(2)No criminal or civil liability
s. 258(1)Proceedings under section 255
s. 258(2)Evidence of failure to give sample
s. 258(3)Evidence of failure to comply with demand
s. 258(4)Release of sample for analysis
s. 258(5)Testing of blood for concentration of a drug
s. 258(6)Attendance and right to cross-examine
s. 258(7)Notice of intention to produce certificate
s. 258.1(1)Unauthorized use of bodily substance
s. 258.1(2)Unauthorized use or disclosure of results
s. 258.1(3)Exception
s. 258.1(4)Exception
s. 258.1(5)Offence
s. 259(1)Mandatory order of prohibition
s. 259(1.1)Alcohol ignition interlock device program
s. 259(1.2)Minimum absolute prohibition period
s. 259(2)Discretionary order of prohibition
s. 259(2.1)Consecutive prohibition periods
s. 259(3)Saving
s. 259(3.1)Mandatory order of prohibition street racing
s. 259(3.2)Mandatory order of prohibition bodily harm
s. 259(3.3)Mandatory order of prohibition death
s. 259(3.4)Mandatory life prohibition
s. 259(4)Operation while disqualified
s. 259(5)Definition of disqualification
s. 260(1)Proceedings on making of prohibition order
s. 260(2)Endorsement by offender
s. 260(3)Validity of order not affected
s. 260(4)Onus
s. 260(5)Certificate admissible in evidence
s. 260(6)Notice to accused
s. 260(7)Definition of registrar of motor vehicles
s. 261(1)Stay of order pending appeal
s. 261(1.1)Appeals to Supreme Court of Canada
s. 261(2)Effect of condition

CATEGORIES
driving offences
mandatory minimums
motor vehicle offences





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