Penalties for a Second DUI Offence
A second conviction for impaired driving, over 80, or refusing a breath sample carries a mandatory minimum of 30 days imprisonment under section 320.19 of the Criminal Code. The court has no discretion to substitute a fine, probation, or conditional sentence for a second offence — jail is mandatory.
In addition to imprisonment, a second offence results in:
- A minimum two-year driving prohibition under section 320.24
- Mandatory participation in Ontario’s Back on Track remedial program
- A mandatory ignition interlock requirement before full licence reinstatement
- A criminal record for a second impaired driving conviction
- Significantly increased automobile insurance premiums, often requiring high-risk coverage
The 30-day minimum is the floor, not the ceiling. Ontario courts regularly impose sentences above the mandatory minimum for second offences, particularly where the BAC reading was high, the driving was dangerous, or there were aggravating circumstances such as an accident or the presence of passengers.
First vs. Second vs. Third DUI Penalties
The Criminal Code imposes escalating mandatory minimum penalties for each subsequent impaired driving offence. The following table compares the penalties across conviction levels.
| Penalty | First Offence | Second Offence | Third or Subsequent |
|---|---|---|---|
| Mandatory minimum | $1,000 fine | 30 days jail | 120 days jail |
| Max penalty (indictable) | 10 years | 10 years | 10 years |
| Driving prohibition | Min. 1 year | Min. 2 years | Min. 3 years |
| Ignition interlock | Required (1 year typical) | Required (3 years typical) | Required (6 years typical) |
| Back on Track program | Required | Required | Required |
| Criminal record | Yes | Yes | Yes |
For a first offence where the BAC was between 120 and 159 milligrams, the mandatory minimum fine increases to $1,500. Where the BAC was 160 milligrams or above, the minimum fine is $2,000. These elevated minimums apply only to the fine for a first offence — for second and third offences, the mandatory minimum is imprisonment regardless of the BAC reading.
Mandatory Jail Time for a Second DUI
The 30-day mandatory minimum for a second DUI offence means that any person convicted of a second impaired driving offence must spend at least 30 days in custody. The court cannot impose a conditional sentence (house arrest), a suspended sentence, or a fine instead of jail.
Intermittent sentences. Under section 732 of the Criminal Code, where a sentence of imprisonment is 90 days or less, the court may order that the sentence be served intermittently — typically on weekends. Whether an intermittent sentence is granted depends on the circumstances of the offence, the accused’s employment and family obligations, and the court’s assessment. An intermittent sentence allows the convicted person to maintain employment and family responsibilities during the week while serving the custodial portion on weekends.
Sentences above the minimum. Courts regularly impose sentences above 30 days for second DUI offences. Aggravating factors that push the sentence higher include: a high BAC reading, an accident involving property damage or injury, dangerous driving behaviour, a short interval between the first and second convictions, and driving while prohibited or under suspension.
Ignition Interlock Requirements
Ontario’s ignition interlock program is mandatory for anyone convicted of a second impaired driving offence. The ignition interlock device is a breathalyzer connected to the vehicle’s ignition — the driver must provide an alcohol-free breath sample before the vehicle will start.
For a second offence, the interlock requirement typically applies for three years following the end of the two-year driving prohibition. The device is installed and maintained at the convicted person’s expense. During the interlock period, the convicted person can only drive a vehicle equipped with the device.
The interlock program operates through the Ministry of Transportation of Ontario (MTO). Participation requires enrolment in the program, successful completion of the Back on Track remedial program, and compliance with all interlock conditions. Tampering with or circumventing the device is a criminal offence.
Administrative Consequences
Beyond the criminal penalties, a second DUI charge triggers immediate administrative consequences under Ontario’s Highway Traffic Act.
90-day administrative licence suspension. Upon being charged, the accused faces an immediate 90-day administrative driver’s licence suspension, the same as for a first offence. This suspension begins at the roadside and runs concurrently with the criminal proceedings.
Vehicle impoundment. The vehicle may be impounded for seven days at the owner’s expense.
Insurance. A second DUI conviction makes obtaining standard automobile insurance extremely difficult. Most standard insurers will decline coverage, requiring the convicted person to obtain high-risk insurance through the Facility Association at premiums that are typically several times higher than standard rates. The insurance impact can last for years.
Employment and travel. A second DUI conviction on a criminal record can have serious consequences for employment in regulated professions, security clearances, and international travel. The United States treats any Canadian DUI conviction as grounds for inadmissibility — a second conviction makes it even more difficult to obtain a waiver. For more on record implications, see our guide on how long a DUI stays on your record.
Common Defences for a Second DUI
The same legal defences that apply to a first DUI charge apply equally to a second offence. The stakes are higher because of the mandatory jail time, which makes a thorough defence even more critical.
Charter violations. The right to counsel under section 10(b) of the Charter requires that the accused be informed of the right to a lawyer and given a reasonable opportunity to contact one before providing breath samples. Failure by the police to provide this opportunity can result in exclusion of the breath results under section 24(2) of the Charter. Unlawful stops and arbitrary detentions under section 9 are also grounds for exclusion.
Instrument reliability. The approved instrument must be properly maintained and calibrated. Defence counsel obtain the maintenance logs, calibration records, and alcohol standard solution test results for the specific instrument used. Discrepancies or gaps in the maintenance records can undermine the presumption of accuracy created by section 320.31 of the Criminal Code.
Toxicological evidence. A toxicologist can calculate the accused’s likely blood alcohol concentration at the time of driving, which may have been below the legal limit even though the reading at the station was above it. This rising BAC defence is particularly relevant where the accused consumed alcohol shortly before driving.
Challenging the methodology. Where the impaired driving charge is based on drug impairment rather than alcohol, the methodology used to establish impairment can be challenged. Drug recognition evaluations (DRE) have documented reliability problems, and the scientific basis for DRE protocols has been questioned in Canadian courts.
Can a Second DUI Be Reduced or Withdrawn?
Yes, though it is more difficult than for a first offence. The Crown is understandably less inclined to offer favourable resolutions to an accused with a prior impaired driving conviction. However, where the defence identifies serious weaknesses in the Crown’s case, a resolution is still possible.
A second DUI charge can be withdrawn entirely where the Crown determines the evidence is insufficient to proceed. This may occur where Charter violations would likely result in exclusion of the key evidence, where the breath demand was unlawful, or where there were fundamental procedural failures.
In some cases, a second DUI charge can be reduced to careless driving under the Highway Traffic Act. Careless driving is a provincial offence that does not result in a criminal record or mandatory jail time. For more on this type of resolution, see our guide on DUI reduced to careless driving.
How We Defend Repeat DUI Charges
Defending a second DUI charge requires the same meticulous approach as any impaired driving case, with heightened urgency because of the mandatory jail minimum. The defence begins with a comprehensive review of the Crown’s disclosure.
Disclosure review. We review the officer’s notes, the approved instrument printout, maintenance and calibration records, video footage, and any witness statements. Every stage of the police interaction is examined for compliance with the Criminal Code and the Charter — from the reason for the traffic stop through to the taking of the breath samples.
Prior conviction record. The Crown must prove the prior conviction to establish that the current charge is a second offence. Defence counsel verify that the prior conviction record is accurate and that proper notice was given under section 320.23 of the Criminal Code. Errors in the prior conviction record or failures in notice can affect the sentencing provisions that apply.
Negotiating resolution. Where the evidence supports it, we negotiate with the Crown for a withdrawal or reduction of the charge. Even where a full withdrawal is not achievable, negotiation can affect the sentence — including whether the jail time is served intermittently and the length of the driving prohibition beyond the minimum.
Representative Results
The following is a representative case from our practice involving a repeat impaired driving charge:
- R v. R.M. — Client’s charges of impaired care or control of a motor vehicle and breach of probation were withdrawn at the request of the Crown Attorney at Old City Hall. Due to evidence presented by the defence refuting an unreliable methodology of establishing impairment by a drug prior to trial, the Crown chose to withdraw the charges rather than proceed. The client had been previously convicted of an impaired driving offence and was also on a probation at the time. The defence also raised issues about the legality of the arrest given the unreliable methodology and the Crown withdrew the breach of probation charge as well.
Representative work; case names anonymized. Past results do not guarantee future outcomes.
Related Offences and Guides
For a comprehensive overview of impaired driving law in Ontario, see our guides on DUI charges, DUI penalties, and first-time DUI charges. Over 80 charges explains the specific offence of operating a motor vehicle with a BAC at or above 80 milligrams. Refusing a breathalyzer carries even higher mandatory minimum fines than over 80 for a first offence.
For related topics, see our guides on care and control, alcohol limits for driving, and new impaired driving laws introduced by Bill C-46 in 2018.