August 3, 2010 heralded some of the most significant changes to the way drinking and driving offences are dealt with that we’ve seen in a long time. We have seen and continue to see the federal government and the government of Ontario make changes to the law as part of their “get tough on crime” approach which had the effect of restricting the defences that an accused person could raise at trial and broadening the scope of drinking and driving offences. The provincial government made the “warn” range of .05 to .08 a provincial offence, added on remedial driving assessment requirements, alcohol treatment assessment requirements and ignition interlock restrictions. The federal government increased penalties by increasing the minimum fines and increasing the period of driving prohibitions for first time and repeat offenders.
If you are driving while impaired or have a BAC of over .08 (or refuse to provide a breath sample) it is a criminal charge. Upon arrest you will be suspended from operating a motor vehicle for 3 months by the province. This is called an administrative driver’s license suspension. (ADLS). There are mandatory minimum legal penalties upon conviction of a drinking and driving offence which are a fine of at least $1,000 and a minimum of 1 years prohibition of driving anywhere in Canada. Also you will have to deal with your insurance company who may deny you coverage for the damage to your vehicle and will most certainly increase your premiums for a number of years.
THE PROVINCIAL “WARN” OFFENCE
The Province of Ontario has amended the Highway Traffic Act to regulate drinking and driving below the criminal limit of .08. If you are driving, not impaired, but have a blood alcohol concentration (BAC) between .05 and .08, this is called blowing in a “warn” range on a approved screening device at the side of the road. Blowing a “warn” is not a criminal offence but it does have consequences. Blowing a “warn” for the first time will have your driver’s license suspended for 3 days and a $150 penalty. Blowing a second warn reading within 5 years, you will have your license suspended for 7 days and a $150 penalty, while a third warn reading within 5 years will result in a license suspension for 30 days, a $150 penalty, an alcohol education program and 6 months of mandatory ignition interlock.
Let me explain a couple of terms I’ll be using.
An ignition interlock device is a small breath-testing device that is installed near the driver’s seat of the vehicle. It is connected to the engine’s ignition system and prevents a vehicle from being started if, upon the driver providing a breath sample, it detects the presence of alcohol over the pre-set limit of .02.
Upon being charged with impaired driving or drive over 80 or refuse, your license will be suspended immediately and for the next 90 days. This is called an Administrative Drivers License Suspension (ADLS). It is imposed administratively, meaning that once you are charged, your license is suspended and except for really rare cases, there is no appeal from it and nothing can be done about it, by you or the judge. You can’t drive for 3 months, guilty or not. This does not form any part of the penalty imposed if found guilty. The judge doesn’t consider it. You still lose your license for 90 days even if you’re innocent.
COURT DELAY AND JUSTICE ON TARGET
The Province of Ontario is presently involved in determining the reasons for court backlogs in a project called “Justice on Target” and its goal is to reduce court delay. In my opinion the stringent minimum sentences for drinking and driving charges represents the single most significant reason for the existing backlog and delay in the criminal justice system. Previously, the sentences imposed are virtually the same whether you acknowledge your guilt by a plea of guilty or take the matter to trial and asserting any and every defence you may have (or we may try to make up for you). As a result, there was little benefit to pleading guilty and little risk in having a trial. A typical drinking and driving trial takes an entire day of court time. It doesn’t take a very large percentage of persons charged with drinking and driving electing to have a trial, each taking an entire court day before the courts become backlogged in trying to deal with just drinking and driving offences, in addition to all the other charges the courts deal with. There were enough drinking and driving cases set for trial that the courts were clogged with them. As a result, the way drinking and driving offences are dealt with by the court is of interest to Justice on Target.
A second problem with drinking and driving convictions was that there was no supervision of those who were prohibited from driving. It is understood that because losing a driver’s license for a year is a very stringent penalty, there is a certain proportion of those prohibited from driving that drive anyways – whether it be simply non-compliance or out of necessity to be able to keep your job and pay the mortgage. There was no program of enforcement. The government’s research showed that up to 75% of suspended/prohibited drivers continued to drive despite the suspension. So the province had a court backlog problem and a compliance problem all related to drinking and driving offences.
EARLY IGNITION INTERLOCK PROGRAM
The government’s studies show that ignition interlock devices reduce recidivism and that approximately 80% of convicted impaired drivers are first-time offenders. As a result the government aimed to increase the rate of interlock installations. To do this, the Province of Ontario has amended the Highway Traffic Act to change the effective penalties for drinking and driving offences. I refer to this as an early ignition interlock program. The proposed program seeks to protect all road users by enabling first time offenders to separate and become conditioned to separating drinking from driving. It does this by providing an incentive to take alcohol education and/or treatment and to install an ignition interlock device. Use of the ignition interlock device serves to effectively separate a person’s drinking from his or her driving and provides electronic monitoring of a person’s compliance. The incentive the province offers is early license reinstatement. The hope is that suspended drivers will be encouraged to remain within the legal licensing system and will allow the Ministry of Transportation to monitor their driving behaviour.
Not everyone is eligible. In order to be eligible for this program it must be a FIRST conviction for simple offences of impaired driving, drive over 80 or refuse to provide a breath sample. There can be no aggravating circumstances such as causing bodily harm or death or in circumstances involving impairment by drugs or a combination of drugs and alcohol. Once eligible, to qualify for the program, one has to 1) plead guilty within 90 days of the date of offence, 2) complete the assessment portion of the remedial measures program, and 3) have signed a lease agreement for an ignition interlock device from an approved service provider.
There are 2 streams to the program. Which stream you are in depends upon you.
STREAM A is the most favorable stream. To qualify you must PLEAD GUILTY and be sentenced within 90 days of the offence date (i.e. the same 90 days of the ADLS). If you meet the other above noted qualifications, you can be back on the road 3 months after the date of your conviction. Under the program there will be an absolute prohibition of driving for the first 3 months followed by the 9 months ignition interlock restriction. Therefore the total restricted period will be 12 months (plus whatever portion of the ADLS preceded the plea of guilty).
STREAM B is more stringent. If you plead guilty after the 90 day period from the date of the offence or are found guilty after trial and meet the other above noted qualifications, you will be off the road for 6 months. There will be an absolute prohibition of driving for 6 months followed by 12 months of ignition interlock restriction. Therefore the total restricted period will be 18 months (plus the 3 month ADLS).
THE ADLS FACTOR
Every penalty is in addition to whatever portion of the ADLS has already been served. If you plead guilty within the first 90 days after the offence (Stream A), whatever portion of the ADLS remains gets subsumed as part of the prohibition imposed as a sentence. In legal terms, the remainder of the ADLS runs concurrently with the sentence. For example, if you plead guilty and are sentenced 30 days after the offence, even though you still have 60 days left of the ADLS, it doesn’t count because it’s not added to the sentence, so the ADLS and the prohibition run both at the same time. The net result then is 4 months with no driving (1 month ADLS and 3 months prohibition) and then 9 months with ignition interlock being 13 months driving restrictions in total. If however you go to trial and lose, it will be 9 months with no driving (3 months ADLS and 6 months prohibition) and then 12 months with ignition interlock being 21 months driving restrictions in total.
THE BOTTOM LINE
The government now offers inducements to give up your right to a trial and to plead guilty and to do so quickly, which reduces the court backlog, saves the government money and provides monitoring of compliance. On the other hand however, you now have OPTIONS. If you’re charged with a drinking and driving offence – impaired driving, drive over 80 or refuse to provide a sample – you now have options you did not have before. It is even more important now to get TIMELY EXPERT advice from an experienced criminal lawyer to find out what your options are and which option is the best choice for you.
There are many more details about the program than I cannot go into here and each case has its own set of circumstances, however if you’d like more detail you might like to start with this presentation material the Province of Ontario provided to our Criminal Lawyers’ Association back in 2011.