The Charge

This charge is separate, but related to the charge of “driving over .08”. It is often charged alongside a charge of over .08. The prosecution must prove, beyond a reasonable doubt, several elements of this charge:

  • That you operated, or had the care or control of, a motor vehicle;
  • That your ability to operate that motor vehicle was impaired;
  • That alcohol was the cause of your impairment.

The Crown need only prove that your ability to drive was slightly impaired.

In deciding whether or not the Crown has proven its case on this charge, Judges can consider a wide variety of evidence. Judges will frequently consider the following types of evidence:

  • Your physical appearance (red/bloodshot/glassy eyes, drooling);
  • The smell of alcohol on your breath;
  • Your driving pattern /performance (were you swerving? Speeding? Signalling? Obeying all traffic signs and lights?);
  • Your pattern of speech (i.e. was it slurred?);
  • Your balance while walking;
  • Your hand/eye co-ordination (did you have difficulty retrieving your license, insurance, registration or documents when you were pulled over? The police will often request these documents for the purpose of assessing your sobriety);
  • Any admissions you made to the police (either in transport, in between giving breath samples at the police station, or before you were released after samples).

Since you own words can be used against you, it is critical that you say no more than necessary at all times when in police custody. We have unfortunately seen cases where the accused would have beat the charge had he not made statements to the police such as:

  • “I know I made a mistake; I shouldn’t have been driving”
  • “What’s the point of giving breath samples? I know I will blow over”.

Conversely, the police may appear friendly and chatty during the drive to the station or in between you giving breath samples. This is a ruse on their part to encourage you to talk about your alcohol consumption and admit that you were too drunk to drive.


The most significant condition that you will experience as a result of being charged is your license suspension. This suspension lasts until your court case is finished; this can take from 3 months to one year! Calgary Criminal Lawyers can pursue an appeal of your suspension if you come to us well in advance of the 30-day appeal period.

If you have recent related conviction, the Crown will have a compelling argument to convince a judge that you should be kept in custody until your charges are dealt with. Calgary Criminal Lawyers can neutralize that argument by providing the judge a release plan that will show you are not a danger to re-offend if released.

The Defence

Contact Calgary Criminal Lawyers immediately upon arrest; they will start building your defence that instant. We can help neutralize the power imbalance that exists when you are alone in police custody and a demand is made for you to give breath samples.

We will review your case inside and out for any defences or breaches of your constitutional rights that may result in the charges getting dismissed. We will explore the following key issues:

  • Are there alternative explanations for any poor driving pattern?
  • Are the Crown’s eyewitnesses reliable enough to prove you guilty?
  • Is there sufficient evidence that you drank alcohol in a large enough amount to impair your ability to drive?
  • Did the police violate any of your constitutional rights in the process of gathering evidence against you?

The Sentence

The punishments for impaired driving are high. You can get up to 5 years in jail.

In addition, there are mandatory minimum punishments for impaired driving:

  • First offence: minimum $1000 fine; driving suspension of at least 1 year.
  • Second offence: minimum 30 days in jail; driving suspension of at least 2 years;
  • Third offence: minimum 120 days in jail; driving suspension of at least 3 years.

There is an exception to the mandatory fines and jail time laid out above, called a “curative discharge”. If you are able to convince the court that you have an addition to alcohol that requires medical treatment, the Court may decide to place you on probation and require you to take treatment instead of sending you to jail.

Because it is an exceptional sentence reserved for only the most deserving offenders, a curative discharge application requires the competent and persuasive presentation of medical evidence, and a compelling legal argument. The groundwork must be laid immediately after the charge if the court is to be satisfied that you are genuinely motivated to cure your addition.

Calgary Criminal Lawyers will explore the curative discharge option with you at your free initial consultation, and, if you wish to pursue it, will start work immediately on creating and collecting the complex and detailed medical evidence required to make the best argument.