Impaired Driving and Over 80 Charges

Most people are charged with either Impaired Driving or Over 80; most commonly they are charged with both.

In both cases, what you did wrong was operate a motor vehicle while having too much alcohol in your system. There are two ways of determining if you have too much alcohol in your system: one is a subjective manner and the other one is an objective manner.

Impaired Driving
Impaired driving is the subjective assessment that your ability to operate a motor vehicle is impaired by alcohol or a drug. The police look at particular indicia of impairment, which include an odour of an alcoholic beverage on your breath. They look at a person’s eyes to see if they are bloodshot and glassy. They look at a person’s fine motor coordination as they look for their documents, their ownership, license and insurance. When the person is asked to step out of the car, the officer observes whether they are unsteady on their feet. The police officer’s observations lead to the conclusion that the person’s ability to operate a motor vehicle is impaired by the consumption of alcohol or a drug. This is the subjective part. The officer makes these observations and has reasonable grounds to believe that the person has had too much to drink.

Over 80
Over 80 is an objective assessment of impairment. A lot of people who are chronic drinkers don’t really exhibit the indicia of impairment. That doesn’t mean that they are not impaired. It just means that they don’t look impaired. But, the objective standard is, if you have 80mg of alcohol per 100ml of blood, whether or not you appear to be impaired, your ability to operate a motor vehicle is impaired.

Care and Control of a Motor Vehicle
It’s important to know that you can also be guilty of the offense if you are not actually operating the car but are, instead, in care and control of a motor vehicle. If you are sitting in the driver’s seat, you are presumed by law to have care and control of that motor vehicle. In some cases, people will find themselves resorting to their motor vehicle for a place to sleep as opposed to driving it. You can rebut the presumption that you were going to drive the car by giving testimony that when you entered the motor vehicle it wasn’t for the purpose of driving it or putting it in motion. However, even if you do that, you could still be responsible for being in care and control if you operate any of the fittings and equipment of the motor vehicle such that it might unintentionally be set in motion. For example, if you are sitting in your car to keep warm or you are planning on sleeping in it and you turn on the ignition and the heater, that’s certainly operating the fittings and equipment, and it certainly increases the likelihood the vehicle might even accidentally be put in motion. My advice is, if you are not going to be operating the motor vehicle, get out of the driver’s seat and take the keys out of the ignition.

If you, or someone you care about, is dealing with criminal law issues in the Newmarket, Ontario Region, contact Hobson & Reeve Barrsiters for a consultation.

This article is taken from a November 6, 2007 interview with Dennis J. Reeve LL.B., Criminal Lawyer with Hobson & Reeve, Newmarket, Ontario Criminal Lawyers. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.