Introduction
In Canada and the United States, the terms DUI, DWI, and OWI are often used interchangeably and can lead to some confusion. In Canada, there are also separate provincial schemes that can complicate things further. This blog will explain the meanings of these terms and will explain what rights Canadians have during a police investigation for a DUI or DWI during a traffic stop.
Definitions
DUI Meaning
DUI stands for “Driving Under the Influence”. It is a term commonly used in Canada and the United States to describe the criminal offence of operating a motor vehicle while impaired by alcohol or other drugs.
DWI Meaning
DWI stands for “Driving While Intoxicated” or “Driving While Impaired”. Similar to DUI, it refers to operating a vehicle under the influence of alcohol or drugs.
OWI Meaning
OWI stands for “Operating While Intoxicated”. This term is not frequently used in Canada. It is used in some American states to describe the offence of operating a vehicle while impaired by alcohol or drugs.
Canadian Equivalent Terms
In Canada, the terms DUI, DWI, and OWI are not legal terms; they are not officially used in federal legislation. Instead, section 320.14(1) of the Criminal Code specifies that it is a criminal offence to operate a conveyance (meaning a motor vehicle, a vessel, an aircraft or railway equipment) while impaired by alcohol or drug to any degree; it is also an offence to operate a conveyance with an illegal blood alcohol and/or drug concentration within the preceding two hours.
Impaired Driving
Impaired driving under the Criminal Code is the offence of operating a motor vehicle while impaired by alcohol or drugs. Impairment can be demonstrated through physical signs or through failed sobriety tests.
“Over 80” Offence
It is illegal to operate a vehicle with a blood alcohol concentration (BAC) equal to or exceeding 80 mg of alcohol per 100 ml of blood. This is often referred to as the “over 80” offence because the law used to be that a driver’s BAC had to exceed 80. However, in 2018, Parliament amended the law making it illegal to have a BAC equal to or exceeding 80. The term “over 80” is still widely used but it is not an accurate description of the law since it was amended.
Legal Implications in Canada
Penalties for Impaired Driving and Over 80 Under the Criminal Code
- First Offence: Minimum fine of $1,000.
- Second Offence: Mandatory minimum 30 days imprisonment.
- Third and Subsequent Offenses: Mandatory minimum 120 days imprisonment.
The maximum penalty is generally 10 years imprisonment but can extend to imprisonment for life in cases that involve death.
Additional penalties include lengthy licence suspensions and the requirement to install an ignition interlock device.
Provincial Legislation in British Columbia
In addition to federal laws, British Columbia has its own legislation under the Motor Vehicle Act to address impaired driving.
Immediate Roadside Prohibition (IRP)
The IRP program allows police officers to issue immediate penalties to drivers who:
- Fail a roadside alcohol screening test (BAC over 0.1% or 100 mg/100 ml).
- Have a BAC in the “warn” range (between 0.05% to 0.99%).
- Refuse to provide a breath sample.
Penalties under IRP may include:
- 3-day to 90-day driving prohibitions (depending on the readings).
- Vehicle impoundment for up to 30 days.
- Monetary fines and fees.
- Mandatory participation in the Responsible Driver Program (RDP).
- Installation of an ignition interlock device upon reinstatement of driving privileges.
- Various insurance consequences.
Administrative Driving Prohibition (ADP)
The ADP is a 90-day driving prohibition issued to drivers who:
- Provide breath or blood samples over the legal blood alcohol or drug limit.
- Fail or refuse to comply with a demand for a breath or blood sample or to comply with a physical coordination test.
Penalties under ADP include:
- 90-day driving prohibition.
- Vehicle impoundment.
- Requirement to attend the RDP
- Possible criminal charges under the Criminal Code.
How Much Alcohol Is Too Much?
In terms of driving, any amount of alcohol can impair your ability to operate a vehicle safely. Legally, a BAC equal to or exceeding 0.08% (80 mg/100 ml) is illegal. However, impairment, which is also illegal, can begin at much lower levels.
In British Columbia, a BAC between 0.05% and 0.99% can result in separate penalties under the provincial IRP and ADP programs.
What Is a DWI Arrest in Canada?
While the term “DWI arrest” is not used in Canada, being arrested for impaired driving involves similar procedures between Canada and the U.S. In Canada, law enforcement officers are legally authorized to conduct roadside tests and demand breath or blood samples as well as physical coordination tests if they suspect impairment.
A traffic stop may be conducted for a variety of reasons related to sobriety testing:
- A police roadblock operation.
- A traffic stop at or near an establishment that sells alcohol.
- A complaint made by a business or driver for impaired driving.
In other cases, the police may stop a driver for reasons unrelated to alcohol or drugs, including:
- speeding;
- failing to signal when changing lanes;
- failing to stay in one’s lane;
- failing to stop at a stop sign;
- failing to stop at a red light;
- failing to stop at a yellow light;
- malfunctioning headlamps or brake lights;
- using an electronic device while driving;
- no or expired insurance;
- no or expired driver’s licence; and
- no seatbelt.
What Are My Rights During A Traffic Stop?
There are three important rights that are engaged during a traffic stop: the right to counsel; the right not to be arbitrarily detained; and the right to be secure against unreasonable search or seizure.
The Right to Counsel
In Canada, the Charter of Rights and Freedoms provides that everyone who is arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. However, the Supreme Court of Canada has determined that this right to counsel is not absolute. This means that the police can legally demand a driver to provide a breath sample or submit to a physical coordination test at the roadside without informing the driver of their right to counsel and without the driver having the opportunity to speak to counsel. The Supreme Court of Canada justified this infringement in the case of R. v. Orbanski; R. v. Elias, 2005 SCC 37, based on public safety concerns. However, if a person is taken to a police station for further testing, then drivers are entitled to speak to a lawyer before further testing is conducted.
The Right Not to Be Arbitrarily Detained
Since amendments to the Criminal Code came into force on December 18, 2018, the police are no longer required to have reasonable grounds to suspect that a person has operated a motor vehicle with alcohol or drugs in their body to make a lawful demand. Before the amendments, the police required reasonable suspicion that a person has been driving with alcohol or drugs in their body. Reasonable suspicion could be met if the officer noted an odour of beer, wine or liquor, or if the driver admitted to consuming alcohol before driving.
Because of the 2018 amendments, a police officer can make a “mandatory screening demand” under section 320.27(2) of the Code. This demand does not require reasonable suspicion, which means that a peace officer does not need to observe any symptoms of impairment or obtain any admission of alcohol consumption to make a lawful demand.
The “mandatory screening demand” is arbitrary because, as Punnett J. held in McLeod v British Columbia (Superintendent of Motor Vehicles), 2023 BCSC 325 at para 134, “[T]he officer has absolute discretion with no criteria for choosing drivers who will be stopped and screened.” Despite this, the demand is a justified infringement of one’s right to be free from arbitrary detention largely on public safety grounds.
The Right To Be Secure Against Unreasonable Search or Seizure
Simply put, the courts in BC have held that a roadside breath demand for the sole purpose of screening for alcohol is not an unreasonable search or seizure, and therefore, there is no right to be secure against it.
An Example Illustrating Rights During a Traffic Stop
Background
Max is driving home after attending a friend’s birthday party. He had a beer and a glass of wine earlier in the evening. It is late at night, and he is attentive and following all traffic laws.
Traffic Stop
As Max approaches an intersection, he encounters a police checkpoint where officers are conducting random roadside stops to check for impaired drivers. An officer signals for him to pull over.
Max’s Rights
- Right to Counsel
What Happens
The officer approaches Max’s window and asks for his driver’s licence and registration. After a brief exchange, without noticing any signs of impairment, the officer asks Max to provide a breath sample using a roadside screening device.
Max’s Expectation
Max recalls that under the Canadian Charter of Rights and Freedoms, he has the right to retain and instruct counsel without delay and to be informed of that right if he is arrested or detained.
Legal Reality
The officer does not inform him of this right before requesting the breath sample, nor is he given the opportunity to speak with a lawyer. Max’s request to speak to a lawyer is refused.
Explanation
The Supreme Court of Canada has determined that this limit on the right to counsel is permissible. In the case of R. v. Orbanski; R. v. Elias, 2005 SCC 37, the Court justified this infringement based on public safety concerns. The immediate need to assess drivers for impairment allows officers to demand a breath sample without delay and without informing the driver of their right to counsel. However, if the officer took Max to he police station for further testing, then he would have the right to counsel at that stage of the investigation and prior to providing further samples.
- Right Not to Be Arbitrarily Detained
What Happens
The officer’s request for a breath sample is made without any specific reason to suspect that Max is impaired—he was driving properly, showed no signs of intoxication, and did not admit to drinking.
Max’s Expectation
Max believes that the police need a reason to detain him and require a breath test.
Legal Reality
Due amendments to the Criminal Code in 2018, specifically section 320.27(2), officers can now make a mandatory alcohol screening demand without needing any reasonable suspicion that a driver has alcohol or drugs in their body.
Explanation
This means the officer’s demand is legally permissible even if it is arbitrary. In McLeod v. British Columbia (Superintendent of Motor Vehicles), 2023 BCSC 325, the BC Supreme Court upheld the constitutionality of the mandatory demand. While the demands are arbitrary because officers have absolute discretion to make the demand without reference to any guidelines or criteria, this infringement is justified on public safety grounds.
- Right to Be Secure Against Unreasonable Search or Seizure
What Happens
Max is required to provide a breath sample, which involves analyzing his breath for alcohol content—a search of his bodily substances.
Max’s Expectation
Max feels as though this is an invasion of his privacy and an unreasonable demand. He recalls that he should be protected against unreasonable searches under the Canadian Charter of Rights and Freedoms.
Legal Reality
In BC, a roadside breath demand made solely for screening alcohol levels is not an unreasonable search or seizure.
Explanation
The BC Supreme Court in McLeod held that the necessity of ensuring road safety outweighs the minimal intrusion of a breath test. Therefore, Max’s right to be secure against unreasonable search or seizure is not violated in this context.
Conclusion
In Canada, the terms DWI, DUI and OWI are encompassed under the offences of impaired driving and operating a vehicle with a BAC over the legal limit. British Columbia enforces additional penalties through the IRP and ADP legislation under the Motor Vehicle Act.
When arrested or detained while driving, one may think that one has a number of rights under the Canadian Charter of Rights and Freedoms, however these rights have been negated or justifiably infringed. For example, mandatory roadside breath tests are not an unreasonable search or seizure in British Columbia. While the Charter guarantees the right to counsel upon arrest or detention, this right is negated during immediate roadside demands for breath samples. Officers are not required to inform drivers of this right before conducting roadside screening tests; they are required to do so before further testing at a police station. Further, the police can lawfully stop drivers and require breath samples without any reasonable suspicion due to the mandatory screening provision. Although this is an arbitrary detention, it is justified in the interest of public safety.
If you have been charged with a drug or alcohol-related driving offence, call the experienced lawyers at Filkow Law for advice.