DUI Charges in Ontario — Types, Penalties & Defences

The Four Types of Impaired Driving Charges

The Criminal Code of Canada, as reformed by Bill C-46 in 2018, creates four principal impaired driving offences. Each has distinct elements that the Crown must prove beyond a reasonable doubt.

1. Impaired Operation — Section 320.14(1)(a)

This is the classic “DUI” charge. The Crown must prove that you operated a conveyance — or had care or control of one — while your ability to operate it was impaired to any degree by alcohol, a drug, or a combination of both. The standard is not that you were falling-down drunk. Any degree of impairment is sufficient.

To prove impairment, the Crown relies on observations: the arresting officer’s notes about your driving pattern, your physical appearance (bloodshot eyes, flushed face), your speech (slurred, confused), your coordination (unsteady on feet, fumbling with documents), and your behaviour. Field sobriety tests, if administered, are also used as evidence.

2. Over 80 — Section 320.14(1)(b)

This charge requires the Crown to prove that your blood alcohol concentration (BAC) was at or above 80 milligrams of alcohol per 100 millilitres of blood within two hours of operating a conveyance. Unlike the impaired driving charge, over 80 does not require proof of impairment — only that your BAC exceeded the legal limit.

The Crown proves BAC through breathalyzer results obtained at the police station using an approved instrument. The Criminal Code creates a presumption that the breathalyzer results accurately reflect your BAC at the time of driving, but this presumption can be challenged. Breathalyzer defences are among the most effective strategies in DUI cases.

3. Refusal to Provide a Sample — Section 320.15

It is a criminal offence to refuse or fail to comply with a demand to provide a breath sample, a blood sample, or to perform physical coordination tests when lawfully demanded by a police officer. Parliament created this offence to eliminate any incentive to refuse testing — the penalties for refusal are identical to the penalties for impaired driving.

The Crown must prove that the demand was lawful — that the officer had the requisite grounds to make the demand and that the demand was made properly. If the demand was unlawful, the refusal charge fails. The Crown must also prove that the failure to comply was not due to a reasonable excuse, such as a genuine medical condition that prevented the accused from providing a sample.

4. Dangerous Operation — Section 320.13

While not exclusively an impaired driving offence, dangerous operation is often charged alongside impaired driving when the accused’s manner of driving posed a danger to the public. The Crown must prove that you operated a conveyance in a manner that was dangerous to the public, having regard to the nature, condition, and use of the place and the amount of traffic that was or might reasonably be expected at that place.

Dangerous operation is distinct from impaired driving: you can be convicted of dangerous operation even if sober, and you can be acquitted of dangerous operation even if impaired. When the two charges are combined, however, the Crown can point to impairment as an explanation for the dangerous driving pattern.

Penalty Ranges by Offence Number

The Criminal Code prescribes escalating mandatory minimum penalties based on the number of prior convictions:

The maximum penalty for impaired driving by indictment is 10 years imprisonment. Where the offence causes bodily harm, the maximum increases to 14 years. Where it causes death, the maximum is life imprisonment.

Aggravating Factors

Several factors can increase the severity of the sentence beyond the mandatory minimums:

• High BAC — A blood alcohol concentration significantly above 80 mg, particularly at or above 160 mg (double the legal limit), is treated as a serious aggravating factor.
• Accident causing injury or death — If your impaired driving caused a collision resulting in bodily harm or death, the Crown will seek a significantly more severe sentence, often including a period of incarceration.
• Child in the vehicle — Having a passenger under 16 years of age at the time of the offence is a statutory aggravating factor.
• Excessive speed — Driving at high speed while impaired demonstrates a heightened disregard for public safety.
• Prior record — A prior criminal record, even for unrelated offences, can be considered on sentencing.

Common Defences

Every impaired driving case has a unique factual foundation, but certain categories of defence arise regularly. An experienced DUI lawyer will examine the entire chain of events — from the initial stop through to the breath test — for any procedural or constitutional deficiency.

Challenging the Stop

Police must have a lawful basis to stop your vehicle. While random RIDE checks are constitutionally permissible, a stop motivated by racial profiling or conducted without any legitimate purpose violates section 9 of the Charter (arbitrary detention). If the stop is unlawful, all evidence obtained as a result may be excluded under section 24(2).

Right to Counsel Violations

Upon arrest, you have the right under section 10(b) of the Charter to be informed of your right to retain and instruct counsel without delay and to be given a reasonable opportunity to exercise that right. If police failed to inform you of this right, delayed your access to a lawyer, or continued the investigation before you had spoken to counsel, the evidence obtained may be excluded.

Breathalyzer Challenges

The breathalyzer is a machine, and machines can malfunction. Defences targeting the breathalyzer include challenging the maintenance and calibration records of the approved instrument, the qualifications of the technician who operated it, whether the observation period before the test was properly conducted, and whether the results were affected by mouth alcohol, gastric reflux, or other physiological factors. A toxicologist retained by the defence can often provide critical expert evidence.

Challenging Impairment Observations

For an impaired driving charge under section 320.14(1)(a), the Crown’s case depends heavily on the arresting officer’s observations. These observations are subjective and can be challenged: bloodshot eyes may result from fatigue or allergies, unsteady balance may result from a medical condition, and nervousness during a police encounter is not impairment. Cross-examination of the arresting officer is often the most important part of an impaired driving trial.

What “Care or Control” Means

One of the most misunderstood aspects of Ontario’s DUI laws is that you do not need to be driving to be charged. The offence applies to anyone who operates or has care or control of a conveyance while impaired or over 80.

Courts have found care or control in situations where the accused was sitting in a parked car with the engine running, sleeping in the driver’s seat with the keys in the ignition, or even sitting in a parked car to warm up with no intention of driving. The question is whether the accused had the ability to set the vehicle in motion and thereby posed a risk of danger.

However, the Criminal Code provides a defence: the accused can rebut the presumption of care or control by demonstrating that they did not intend to put the vehicle in motion. In R v. R.M., our client’s charges of impaired care or control and breach of probation were withdrawn after the defence raised evidence challenging the reliability of the impairment methodology used by the arresting officer.

Real Case Results

The following cases from our practice illustrate how these defences work in the real world:

• R v. M.A. — Client charged with impaired driving was acquitted after a two-day trial. The defence demonstrated that the evidence did not support a finding of impairment beyond a reasonable doubt.
• R v. D.Y. — Client was acquitted of impaired driving after a two-day trial. The Crown could not prove that the client was impaired at the time of a car accident. The defence argued that all observations of impairment occurred well after the time of driving.
• R v. T.V. — Client charged with impaired driving was acquitted after a two-day trial. The defence argued that the evidence did not lead to a conclusion the client was impaired and the judge agreed.
• R v. A.Y. — Client was charged with dangerous driving, impaired driving, and refusing to provide a breath sample. The defence retained a forensic expert to challenge the Crown’s evidence. After a contested trial, the client was acquitted of all charges.

Case names anonymized. Past results do not guarantee future outcomes.

Next Steps If You Have Been Charged

If you are facing any type of impaired driving charge in Ontario — whether impaired operation, over 80, refusal, or dangerous driving — the single most important step you can take is to retain experienced legal counsel before making any decisions about your case. Do not plead guilty at your first appearance. Do not assume the Crown’s evidence is unassailable.

Contact us. We will review the facts of your case, identify every available defence, and give you an honest assessment of your options.