Matthew Gould

Criminal Lawyer,
Winnipeg

24 HOURS

O 204–272-7327

Know your rights. Know the law. Protect Yourself.

Sentencing – 253 and 254

Offences under Section 253 and Section 254 of the Criminal Code have stiff sentences. These are the offences of impaired driving, driving over 80, and failure to provide samples. All offences under these sections have the same minimum sentences:

First offence: minimum $1000 fine

Second offence: minimum 30 days

All subsequent offences: minimum 120 days (4 months)

Because these are minimum sentences, the judge cannot go easier on you.

The maximum sentence for these charges varies depending on whether the Crown is proceeding by indictment (for more serious matters) or by summary conviction (for less serious matters).

For an indictable charge under Section 253 or 254, the maximum sentence is 5 years. For a summary conviction charge, the maximum is 18 months (1 ½ years). However, if one of these offences causes bodily harm to another person, it automatically becomes an indictable offence with a maximum sentence of 10 years. If the offence causes death, there is a maximum sentence of life in prison.

Sentences for multiple charges may run either concurrently (at the same time) or consecutively (one after the other).

MINIMUM MAXIMUM
(no harm caused)
MAXIMUM
(causing bodily harm)
MAXIMUM (causing death)
First offence $1000 fine 18 months (summary)
OR 5 years (indictable)
10 years Life in prison
Second offence 30 days 18 months (summary)
OR 5 years (indictable)
10 years Life in prison
All subsequent offences 120 days 18 months (summary)
OR 5 years (indictable)
10 years Life in prison

Aside from any fines or prison time, offences under Sections 253 and 254 may also lead to additional license suspensions and driving prohibitions.

 

Disclaimer: this article is for information purposes only and is not legal advice. For legal advice, contact Matt Gould now to discuss your case.

Roadside Demands

Section 254 of the Criminal Code gives police the power to make certain demands if they reasonably suspect a person has alcohol or a drug in their body and has operated or had care or control of a motor vehicle within the past three hours. It is an offence for a person to refuse one of these demands.

When can the police make a demand?

A police officer may make a demand when they have reasonable suspicion a person has consumed alcohol or a drug and operated a motor vehicle within the past three hours. Their suspicion may be based on their own observations or by others’ observations that have been communicated to them. The officer does not have to suspect the person is actually impaired by the alcohol or drug, just that they have consumed it. For example, an officer seeing a person leave a bar and get into the driver’s seat of a car might be enough to form reasonable suspicion and make the demand.

What tests can be demanded?

If an officer suspects a person has consumed a drug, they can demand a person to submit to a physical coordination test. If they suspect a person has consumed alcohol, they can demand a physical coordination test, a breath sample, or both.

The physical coordination tests that may be demanded are prescribed by regulation.

Breath samples must be given on an approved screening device (or ASD). A full list of ASDs is also prescribed by regulation.

Approved Screening Devices

ASDs are portable devices used by police to determine whether or not a person has consumed alcohol. If a person fails an ASD test, police can demand the person accompany them to a police station to give another sample on an “approved instrument”. The results from an ASD are not admissible in court as evidence of blood alcohol content.

Approved instruments”

Approved instruments” are non-portable devices that measure blood alcohol content. A list of approved instruments is prescribed by regulation. Breath samples on an approved instrument must be taken by a qualified technician.

Other samples

If a police officer has reasonable grounds to believe a person cannot provide a breath sample (for example, because of a health problem), a demand for a blood sample may be made. A blood sample must be taken by someone qualified to do so, under the direction of a qualified medical practitioner.

If, after a physical coordination test, a police officer believes a person is impaired by a drug or combination of alcohol and a drug, they may demand a sample of oral fluid or urine for analysis. They may alternatively demand a blood sample, but this must be taken by someone qualified to do so, under the direction of a qualified medical practitioner.

Failure to provide a sample

It is an offence to fail or refuse to provide a sample demanded by a police officer without a reasonable excuse. The court usually interprets “reasonable excuse” very narrowly, and it is up to the person claiming an excuse to prove it.

The sentence for failing to provide a sample is the same as a sentence for impaired driving or driving over 80. These offences are separate offences, which means driving while impaired and refusing to give a breath sample will result in two criminal charges rather than one.

 

Disclaimer: this article is for information purposes only and is not legal advice. For legal advice, contact Matt Gould now to discuss your case.

Driving “Over 80”

Section 253(1)(b) of the Criminal Code makes it an offence to operate or have care or control of a motor vehicle while having a blood alcohol content (BAC) of more than 80 mg of alcohol per 100 mL of blood (also called “0.08” or “over 80”). This is usually measured by breath analysis, but can also be measured by taking a blood sample.

Am I okay if I’m under 0.08?

It is not a criminal offence to drive with a BAC of less than 0.08, but this does not necessarily mean you will be completely off the hook. Most jurisdictions in Canada allow for license suspensions at lower BAC levels. In Manitoba, a BAC of 0.05 – 0.08 will result in an immediate 3-day suspension of your driver’s license.

What about other substances?

There are currently no laws stating how much of other substances must be found in the body to create an offence. However, police officers may make demands for samples of oral fluid, urine, or blood if they suspect a driver is impaired by a drug, and their findings may lead to a charge of impaired driving.

Sentences for driving “over 80”

Disclaimer: this article is for information purposes only and is not legal advice. For legal advice, contact Matt Gould now to discuss your case.

Dangerous Operation of a Motor Vehicle

Section 249 of the Criminal Code makes it an offence to operate a motor vehicle in a manner that is dangerous to the public.

What is a “motor vehicle”?

The Criminal Code defines a motor vehicle as “a vehicle that is drawn, propelled or driven by any means other than muscular power.” This includes road vehicles, like cars, trucks, and motorcycles, as well as recreational vehicles like boats, snowmobiles, ATVs, and dirt bikes.

This definition does not include railway equipment. However, section 249 also makes it an offence to operate railway equipment, an aircraft, or any object towed over water (such as water skis, surfboards, and water sleds) in a manner that is dangerous to the public.

What does “dangerous” mean?

Dangerous operation refers to use of a vehicle in a way that poses a threat to the public. There is no clear test to determine what is dangerous operation, but it must be a noticeable and significant departure from the way a reasonable person would operate a motor vehicle.

To show dangerous operation, the lives or safety of others do not have to actually have been in immediate danger. It is enough to show that members of the public were present at the time of the offence, or that they could reasonably be expected to have been present at the time of the offence. However, all of the circumstances must be taken into consideration, including the nature, condition, and use of the place where the offence occurred.

Sentences

Dangerous operation of a motor vehicle can lead to a maximum prison sentence of 5 years.

If bodily harm is caused to another person, the sentence could be as high as 10 years.

If death is caused to another person, the sentence could be as high as 14 years.

 

Disclaimer: this article is for information purposes only and is not legal advice. For legal advice, contact Matt Gould now to discuss your case.

Impaired Driving

Section 253(1)(a) of the Criminal Code makes it an offence to operate a motor vehicle while impaired by alcohol or a drug. It is also an offence to have care or control of a motor vehicle while impaired, even if the vehicle is not in motion.

What is impairment?

Impairment refers to a lessened ability to operate a motor vehicle. There is no special test in the Criminal Code for determining impairment. If the evidence shows any level of impairment, a driver may be charged under section 253(1)(a).

Evidence of impairment may include the smell of alcohol, bloodshot eyes, slurred speech, difficulty walking, and belligerence. Bad driving may also be a symptom of impairment, but ultimately this offence is about a person’s ability to drive rather than the quality of their driving. If there is evidence of impairment, it does not matter if an impaired driver is driving well and following all the rules of the road.

What is a drug?

A drug can be any substance causing impairment, whether illegal or not. It is possible to be impaired by legal substances (such as the fumes from certain chemicals) or by prescription drugs ordered by a doctor. This does not mean it is illegal to drive while taking prescription drugs, but it is illegal to drive if impaired by those drugs.

It is not necessary to be able to determine the drug used, or to be able to determine whether it is a drug or alcohol causing impairment; it is only necessary to show impairment. Impaired driving may be found even if the impairment is partly caused by a drug or alcohol and partly by fatigue.

What is “care or control”?

Care or control of a vehicle is a complicated concept, but basically refers to the risk that a vehicle will be put in motion. Occupying a position needed to operate the vehicle is sometimes enough to show care or control of the vehicle (for example, sitting in the driver’s seat of a car). Usually there must also be an intention to set the vehicle in motion, but this may not be the case if certain actions are taken that could lead to the vehicle unintentionally being set in motion (for example, turning on the ignition to listen to the radio or stay warm). Care or control may also be found when a person has the means and immediate capacity to operate the vehicle (for example, being in the vehicle with the keys).

Sentences for driving while impaired

Disclaimer: this article is for information purposes only and is not legal advice. For legal advice, contact Matt Gould now to discuss your case.

Matthew Gould, Criminal Lawyer, Winnipeg

Your first meeting with Matthew Gould, at the offices of Brodsky & Company Barristers, is free. You can meet with Matthew Gould, review your case, review your options, and determine how you intend to protect yourself against a criminal prosecution.

Getting Effective Legal Representation

If you, or someone important to you, is charged with a criminal offence, effective representation can be the difference between going to jail, or going home. It can be the difference between losing your job, and keeping it. It can be the difference between a clean criminal record, and a record of conviction that can follow you and impact your life for decades.

Retaining an Experienced Criminal Lawyer

Criminal defence representation requires more than just thorough preparation and legal research. There is an art to courtroom arguments. There are times for conciliatory negotiation, and there times when contested matters should be fought out in the courtroom. The key is finding the balance that will be most effective for your case.

The Impact of a Criminal Charge

Getting charged with a criminal offence can be one of the most stressful situations one can be confronted with. That stress is understandable, because the outcome of a criminal prosecution can have a dramatic impact on whomever is charged.

For someone who has never been involved in the criminal justice system, even someone charged with a relatively minor offence, getting a criminal record as the result of a criminal offence conviction can impact job opportunities, travel, and personal liberty. For example, a single impaired driving offence conviction will result in a criminal record that would be discovered through a criminal records check by an employer, or by American customs agents who have the ability to bar entry to the United States to anyone with a criminal record. Matthew Gould is an experienced Winnipeg DUI lawyer, and can help you navigate this process and represent your interests.

For an accused person facing more serious charges, such as weapons offences, assault charges, or many drug offences, the consequences of a criminal conviction can result in custodial jail sentences lasting years.

The impact of a criminal prosecution can have such a significant impact on the person facing charges that it warrants careful thought and preparation. Time is of the essence.

Getting Informed

There are many aspects of the criminal justice system that move excruciatingly slow. Like any important decision, it is important to get informed at the earliest available opportunity. The first step is to meet with a criminal defence lawyer to understand what options are available, and how you intend to proceed.

When someone is arrested and charged with a criminal offence, the police often have the discretion to either release the accused person, or remand him into custody.

Being Proactive

When someone is released by the police after being arrested and charged, that person will be issued a court appearance notice, and must appear in court on a specified date, or have a legal representative appear on his behalf. It is important be proactive if you find yourself with an upcoming first appearance court date. The earlier you speak to a criminal defence lawyer, the better prepared you will be defend yourself as an informed, knowledgeable, and protected accused person.

Applying for Bail

If the police do not agree to release an individual who has been arrested and charged with an offence, that person will have to make a bail application in order to be released. Effective bail preparation and representation is critical to the defence of criminal prosecution. It is imperative to secure bail in a timely fashion to minimize the impact that an arrest has on the arrested person’s family, employment situation, and personal freedom.

A criminal prosecution can take years to proceed through the criminal justice system. Securing release at the early stage of this process can be critical to the successful defence of a case at later stages of the process.

FROM THE FIRST CALL ON A CASE, TO THE LAST DAY IN COURT, MATTHEW GOULD WILL REPRESENT YOU WITH THE SKILL AND KNOWLEDGE REQUIRED TO GET YOU RESULTS.

Experienced Criminal Lawyer in Winnipeg

Call now to get your case evaluated for free. Matthew Gould is available for you 24 hours 204–272-7327.

License Suspensions

Not all of the negative effects of driving after consuming alcohol or drugs come from the Criminal Code. Most provinces allow for license suspensions in addition to criminal charges—or in some cases, even without criminal charges.

What is a license suspension?  

A license suspension is a temporary loss of your ability to drive legally. When your license is suspended, you are not permitted to drive any type of vehicle, on or off the road. Your vehicle may be taken from you and impounded at your expense. Reinstatement of your license costs $50, and for certain suspensions you may also be forced to retake a driving test (at a cost of $30 – 175) and/or attend programming with the Addictions Foundation of Manitoba (costing over $600). You will also be forced to pay an additional driver’s license premium.

License suspensions are issued by the provincial driver’s licensing agency (in Manitoba, this is Manitoba Public Insurance). They are different than driving prohibitions, which are issued by the Criminal Code.

How can my license be suspended?

Your license may be suspended if you fail a roadside breath screening, refuse to comply with a police officer’s demand for a physical coordination test or breath sample, or have a blood alcohol content of 0.05 or higher. Note that this is lower than the blood alcohol content of over 0.08 required for a criminal charge. You can also have your license suspended if a police officer believes you are too impaired to perform a coordination test or provide a breath or blood sample.

How long do suspensions last?

If a police officer believes you are too impaired to perform a coordination test or provide a sample, your license will be immediately suspended for 24 hours.

If you fail a coordination test, have a BAC between 0.05 and 0.08, or get a result of “warn” on an ASD, your license will be immediately suspended for 3 days (if it is your first offence). This length of time increases each subsequent time you commit the offence:

  • Second offence within 10 years: immediate 15 day suspension
  • Third offence within 10 years: immediate 30 day suspension
  • All subsequent offences within 10 years: immediate 60 day suspension

If you have a BAC over 0.08, refuse to participate in a coordination test, or refuse to provide a sample, your license can be immediately suspended for 3 months.

Suspensions following conviction

If you are convicted of a driving offence under the Criminal Code, you will be subject to an even longer license suspension:

First offence Second offence Third offence Subsequent offences
Impaired driving 1 year 5 years 10 years lifetime
Driving “Over 80” 1 year 5 years 10 years lifetime
Refusal to provide a sample 2 years 7 years 10 years lifetime
Impaired driving
causing bodily harm or death
5 years 10 years lifetime lifetime

In order to get your license back after a criminal conviction, you will also need to participate in MPI’s Ignition Interlock program.

Driving prohibitions

While the effect of a driving prohibition and license suspension is basically the same (that is, you are prevented from legally driving), it is important to understand the differences. A driver’s prohibition comes from the Criminal Code and can only be issued upon a criminal conviction for certain offences: impaired driving, driving over 80, or refusal to provide a sample . A license suspension can be issued by MPI for a wide variety of reasons, including things like speeding.

Driving prohibitions under the Criminal Code have the following sentences:

  • First offence: 1–3 years
  • Second offence: 2–5 years
  • All subsequent offences: minimum 3 years

These prohibitions do not begin until any prison sentence imposed by a judge ends. Driving while suspended or prohibited is a separate offence under the Criminal Code and can lead to a sentence of up to 5 years.

Do they affect my criminal record?

License suspensions do not show up on your criminal record, but they will show up on your driver record through MPI. If your suspension is the result of a criminal conviction, however, your conviction will appear on your criminal record.

 

Disclaimer: this article is for information purposes only and is not legal advice. For legal advice, contact Matt Gould now to discuss your case.