section 253(1)

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 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.

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.

COMMENTARY

Section 253(1) of the Criminal Code of Canada lays down the legal standards in Canada regarding driving or operating a motor vehicle, vessel, aircraft, and railway equipment. The section clearly defines the situations and scenarios that can constitute an offense and put the lives of individuals and entire communities in danger. This provision is designed to protect public safety, prevent accidents, and reduce fatalities on the roads, waterways, and airways. The Code states that every Canadian who operates a motor vehicle or vessel or operates or assists in the operation of aircraft or railway equipment, or has the care or control of these vehicles or equipment, whether it is in motion or not, is guilty of an offense if their ability to operate the vehicle or equipment is impaired by alcohol or a drug or if they have consumed alcohol in a quantity that exceeds eighty milligrams of alcohol in one hundred milliliters of blood. It is common knowledge that operating any kind of vehicle or equipment under the influence of drugs or alcohol is not only illegal, but also extremely dangerous. Drugs, alcohol, or any combination of them significantly affect the driver's cognitive ability, motor skills, reaction time, and judgment. As a result, it can lead to accidents, injuries, and even fatalities. Therefore, this section of the Criminal Code of Canada comes into play in legal proceedings where the accused is charged with one of these offenses. It is also important to note that the term "care or control" is not limited to driving or operating the vehicle or equipment, or being in charge of it. It is a broadly defined term, which encompasses situations where an individual has the power and responsibility to influence the way a vehicle, equipment, or vessel is operated. For example, if a person is sitting in the front seat with the keys in the ignition, they could be said to have "care or control" of the car, even if the car is not running. The section also sets limits for blood alcohol concentrations and provides a basis for testing and validating the levels to be used as evidence in court. The scientific measurement of the blood alcohol content (BAC) is done using a breathalyzer, blood, or urine test. The evidence of a BAC of over eighty milligrams of alcohol in one hundred millilitres of blood can be used to establish a prima facie case of post-absorptive impairment or that the driver's ability was impaired at the time he or she was driving or operating the vehicle. In conclusion, the provision of Section 253(1) of the Criminal Code of Canada is a crucial element in ensuring public safety on the roads, waterways, and airways. It sends a strong message to those who choose to disregard the law and intentionally put others at risk. The seriousness of the offense and the high penalties that accompany it serves as a deterrent to would-be offenders. The provision is a vital tool in law enforcement, which helps to maintain order, sanity, and safety on Canadian roads, waters, and airways. It is a provision that has undoubtedly saved many lives and prevented countless accidents and tragedies.

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

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.
An analysis of the criminal offence of refusing to provide a breathalyzer sample.
Ines Gavran is a Newmarket criminal defence lawyer who defends impaired driving charges.

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