Criminal and Administrative Procedures for Dealing with DWI Offenders in Canada

DJ Beirness, DR Mayhew and HM Simpson

Traffic Injury Research Foundation of Canada, 171 Nepean St. Suite 200, Ottawa, Ontario, Canada K2P 0B4

ABSTRACT

In Canada, legislation governing impaired driving offences is contained in the Criminal Code. As a criminal offence, all charges are dealt with by the courts.

In addition, many provinces and territories have used their authority under the Highway Traffic Act or its equivalent to supplement the provisions of the Criminal Code. Many of these provisions for dealing with drinking drivers are of an administrative nature and can involve roadside suspensions, licence suspensions, mandatory assessment, and rehabilitation programs.

This presentation will illustrate the various criminal and administrative procedures and how they interact to deal with impaired drivers in Canada.

INTRODUCTION

This paper describes the criminal and administrative procedures for dealing with DWI offenders in Canada, from the time they are identified by the police through to licence reinstatement. The purpose is to outline what happens to DWI offenders -- i.e., the required and optional procedures and sanctions that must be followed by an offender in order to re-enter the driving population legally. The information was gathered as part of a comprehensive project on programs and procedures for dealing with DWI offenders in Canada conducted by the Traffic Injury Research Foundation for Health Canada (Beirness et al., 1994).

THE CRIMINAL CODE

In Canada, impaired driving is a criminal offence and, therefore, legislation governing impaired driving offences is contained in the Criminal Code of Canada. This is a federal statute that applies in all provinces and territories. In this paper, the terms "impaired driving" and "DWI" actually refer to any one of a number of offences -- i.e., impaired operation of a motor vehicle, driving with a BAC over 80 mg of alcohol in 100 ml of blood, failing or refusing to provide a blood or breath sample, impaired operation causing bodily harm, and impaired operation causing death. In this paper, a distinction among offences will be made only when procedures for dealing with them differ.

The Criminal Code specifies penalties for persons convicted of an impaired driving offence. These penalties are listed in Table 1. For example, the penalty for a first summary conviction for impaired driving is a minimum three-month prohibition from driving and a $300 fine. The maximum penalties, especially for a conviction by indictment, can be considerably higher (Impaired driving is a hybrid or dual procedure offence -- i.e., it can be prosecuted as either a summary conviction or indictable offence. The differences between the two types of offences lie primarily in the court procedures and penalties. Indictable offences are generally considered more serious. Most impaired driving offences are treated as summary conviction offences). As is evident in Table 1, the Criminal Code also provides for more severe penalties for those convicted of a second or subsequent impaired driving offence. For the purpose of sentencing for repeat offences, a previous conviction for either impaired operation, over 80 mg% or refuse to provide a blood or breath sample are considered as equivalent.

Table 1
Criminal Code Penalties for Impaired Driving Offences

In addition to the sanctions listed in Table 1, if deemed appropriate, judges have considerable discretion in setting terms of probation (e.g., an offender may be required to seek treatment for alcohol abuse, perform community service, provide restitution to victims, or attend a specific rehabilitation program). Because of the latitude in the conditions of probation and their variability across the country, the combinations of potential sanctions are virtually endless. Probation orders, however, are an important aspect of sentencing in that in some jurisdictions, a judicial order is the most common means by which offenders access rehabilitation programs.

PROVINCIAL/TERRITORIAL LEGISLATION

In addition to the Criminal Code, the provinces and territories have authority over driver licensing and can pass laws under the Highway Traffic Act (or its equivalent) to keep the roads safe. Many jurisdictions have used their authority to supplement the drinking and driving provisions of the Criminal Code.

Table 2 provides a summary of the various actions taken by each of the provinces and territories to help control drinking and driving. All jurisdictions in Canada not only allow, but encourage random roadchecks as a means to enforce impaired driving laws. Approved screening devices (ASDs) are used across Canada to provide a preliminary breath test reading often at roadside. All but two jurisdictions in Canada have given police the authority to suspend or prohibit immediately, for up to 24 hours, any driver who has a blood alcohol concentration (BAC) above some minimal value. The BAC at which such suspensions or prohibitions take effect is typically 50 mg% -- below the 80 mg% level specified in the Criminal Code. This administrative action provides an immediate sanction for driving after drinking while at the same time removing these drinking drivers from the road before they become involved in a crash.

Table 2
Dealing with Impaired Drivers: Provincial Summary

# if different than for 3rd conviction

## period of time driver record is searched for previous offences

* all novice drivers

** no BAC specified

*** impaired causing death or bodily harm suspended until case heard by court

ASD = Approved Screening Device

Three provinces also have lower BAC limits for young and/or novice drivers. Ontario and Nova Scotia have a zero BAC limit for novice drivers as part of their new graduated driver licensing systems. Prince Edward Island has adopted a 10 mg% limit for drivers under 19 years of age. Violations are punishable by licence suspension and, in Prince Edward Island, a $500 fine.

Manitoba, British Columbia and Nova Scotia have introduced three-month administrative licence suspensions for drivers who fail or refuse a breath test. The suspension takes effect seven days after the offence was committed and is independent of a Criminal Code conviction. The purpose of the administrative suspension is to provide a swift and certain sanction while helping to ensure that drivers who have violated the conditions of holding a licence do not drive during the interval between the offence and disposition of the case by the court.

Most provinces and territories also impose licence suspensions upon conviction for a Criminal Code impaired driving offence. These suspensions are typically longer than the prohibition from driving imposed by the court. Table 2 illustrates the considerable variability in the length of provincial licence suspensions, which range from three months for a first conviction to five years for a second conviction.

Provincial/territorial licence suspensions run concurrently with the court-ordered prohibition from driving. A court-ordered prohibition from driving, however, takes precedence over a provincial suspension. For example, if the court imposed a prohibition from driving that is longer than the provincial suspension, the offender may technically be eligible to get his driver's licence reinstated but will still be prohibited from operating a vehicle.

THE LAW IN PRACTICE

Figure 1 provides an overview of the interaction between criminal and administrative procedures for dealing with DWI offenders in Canada. The Figure is not representative of any particular province or territory but illustrates the typical procedures as well as some that are only employed in certain jurisdictions.

Figure 1
Dealing with DWI Offenders

In Canada, if a police officer has a "reasonable suspicion" that a driver has consumed alcohol, the officer can demand that the driver provide a breath sample into an approved screening device (ASD). (Failure to provide a sample can lead to charges under the Criminal Code.) The ASD is typically calibrated such that a green "Pass" light illuminates when the blood alcohol concentration (BAC) is below 50 mg% (60 mg% in Saskatchewan); a yellow "Warn" light indicates a BAC of 50 to 100 mg%; and a red "Fail" light indicates a BAC in excess of 100 mg%.

In several provinces, if a driver illuminates the "Warn" light on an ASD, the police officer can immediately -- at roadside -- suspend the driver's licence or prohibit the offender from driving for a period of up to 24 hours. In some jurisdictions, a roadside suspension can be issued in the absence of ASD evidence if the police officer believes the driver is affected by alcohol.

Upon forming reasonable grounds of impairment (which includes but is not limited to registering a "Fail" on an approved screening device), police officers can demand that a driver accompany them for the purpose of providing a breath sample to determine actual BAC. This is usually done at the police station by a breathalyzer technician using an approved evidential quality instrument. A BAC in excess of 80 mg%, or refusal to provide a breath sample, can result in charges under the Criminal Code. Evidence of impairment, regardless of BAC, can also result in Criminal Code charges. In Manitoba, Nova Scotia and British Columbia drivers who fail or refuse to provide a breath sample are also issued an immediate three-month administrative suspension. This suspension is independent of the outcome of any Criminal Code charges.

Persons charged with an impaired driving offence under the Criminal Code may be photographed, fingerprinted, and held for an appearance in court. Depending on the circumstances and local practices, however, offenders are typically issued an appearance notice and released. Charges are then dealt with by the court at a later date.

Upon conviction, offenders are subject to at least the minimal sanctions specified in the Criminal Code -- i.e., fines, jail, prohibition from driving, and probation. Provincial and territorial licensing authorities typically supplement Criminal Code sanctions with a series of requirements that must be fulfilled prior to licence reinstatement. These can include periods of licence suspension that exceed the court-ordered prohibition from driving, reinstatement fees, re-testing, and rehabilitation programs.

Alberta is the only province in Canada with an active alcohol ignition interlock program. After serving the court-ordered prohibition from driving, convicted offenders may apply for early licence reinstatement under the ignition interlock program. Participants are restricted to an interlock-equipped vehicle and must pay all installation and service fees.

Both Manitoba and Alberta have active vehicle seizure and impoundment programs. Under these programs the police can seize and impound for a period of 30 days the vehicle of anyone found operating a vehicle while their licence is under suspension.

Rehabilitation programs for offenders are typically accessed in one of three ways: (1) incarcerated offenders may be directed to attend a substance abuse program within the correctional facility; (2) probation orders issued by a magistrate can also include a condition for treatment or attendance at a specific impaired driving or substance abuse program; and, (3) some provinces (e.g., Alberta, Manitoba) require completion of a specific impaired driving program as a mandatory condition of licence reinstatement.

The availability of assessment and rehabilitation programs, however, varies considerably across jurisdictions. For example, in Manitoba, all DWI offenders are required to present a satisfactory alcohol assessment report to the Department of Motor Vehicles prior to re-licensing. Alberta operates a mandatory educational program for first-time offenders and an intensive weekend program for repeat offenders. Some jurisdictions have very limited rehabilitation options that are available only to a limited number of offenders through the corrections system or by judicial order.

CONCLUSION

Administrative procedures for dealing with DWI offenders in Canada complement criminal procedures by providing swift and sure sanctions that are relatively simple to implement and enforce. In some jurisdictions, administrative procedures also provide for mandatory assessment and/or rehabilitation of offenders. Because administrative actions are not complicated by formal rules of criminal procedure, they are an efficient and effective adjunct for dealing with DWI offenders.

REFERENCES

Beirness DJ, Mayhew DR and Simpson HM (1994) Dealing with DWI Offenders in Canada. An Inventory of Procedures and Programs. Final Report July, 1994. Ottawa: Health Canada.