section 253(1)


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


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 persons 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 persons blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.


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.


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.



Why am I charged with both 253(a) and 253(b)?


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.


What are the potential penalties and punishments if I am convicted of over 80 or impaired driving or DUI?


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.


A criminal defence lawyer's page detailing impaired driving charges and the types of defences available.
A criminal law firm discusses the offence of "over 80", as found in section 253(b) of the Criminal Code of Canada.
A 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.
Ines Gavran is a Newmarket criminal defence lawyer who defends impaired driving charges.