Impaired driving is a criminal offence under section 320.14 of the Criminal Code. You commit it if you operate a vehicle while your ability is impaired to any degree by alcohol or a drug, or if your blood alcohol or blood drug level is over the legal limit within two hours of driving. The same rules apply whether the substance is alcohol, cannabis, an illegal drug or a prescription medication.
The charges carry mandatory minimum penalties, a federal driving ban, and separate licence consequences in Ontario. This guide explains the legal limits, how police test for alcohol and drugs, what the Crown must prove, and the penalties you could face.
Key Takeaways
- Section 320.14 of the Criminal Code defines impaired driving and replaced the old section 253 in December 2018.
- You can be charged for impairment to any degree, or for being over a legal limit for alcohol, cannabis or other drugs.
- “Operating” a vehicle includes having care or control of it, so you don’t have to be driving.
- Refusing a lawful demand for a breath, roadside sobriety or bodily fluid test is a criminal offence with the same maximum penalties and driving bans, and a higher minimum fine of $2,000 for a first offence.
- A first offence carries a minimum $1,000 fine and a driving ban of at least one year. Second and third offences carry mandatory jail time.
- Ontario adds an immediate 90-day licence suspension and a 7-day vehicle impoundment when you’re charged.
What Is Impaired Driving Under the Criminal Code?
Impaired driving is set out in section 320.14 of the Criminal Code. There are four main ways to commit the offence:
- Impaired operation. Your ability to operate the vehicle is impaired to any degree by alcohol, a drug, or both.
- Over 80. Your blood alcohol concentration is 80 mg or more per 100 mL of blood within two hours of operating the vehicle.
- Drug over the limit. Your blood drug concentration is at or over the limit set by regulation within two hours of operating the vehicle.
- Combined alcohol and cannabis. Your blood alcohol is 50 mg or more, and your THC level is 2.5 ng or more per mL of blood, within two hours.
The Criminal Code defines “operate” to include having care or control of a motor vehicle. That means you can be charged while parked, with the engine running or off, if there’s a realistic risk the vehicle could be set in motion. This isn’t new. Care or control was also an offence under the old law. Our guide to care and control in Ontario explains how it works.
Does Impaired Mean Drunk?
No. The Crown doesn’t have to prove you were drunk or that your driving was erratic. It’s enough to prove that your ability to operate the vehicle was impaired to any degree, even slightly, by alcohol or a drug. Evidence can include driving behaviour, the smell of alcohol, slurred speech, unsteadiness, and roadside test results.
What’s the Difference Between Impaired Driving and Over 80?
They’re separate charges, and police frequently lay both after the same stop. Impaired operation depends on evidence that your ability to drive was affected, such as your driving, speech, or balance. Over 80 depends only on breath or blood readings, so prosecutors can prove it even if you showed no signs of impairment. A person can be acquitted of one and convicted of the other, but they can’t be convicted of both for the same driving. Our article on the difference between over 80 and impaired driving explains more.
Which Vehicles Does the Law Cover?
Impaired driving isn’t limited to cars. The law covers any conveyance, including:
- cars, trucks and motorcycles
- snowmobiles, all-terrain and other off-road vehicles
- boats and other vessels
- aircraft and railway equipment
What Are the Legal Limits for Alcohol and Drugs?
Each substance has its own limit, and some drugs have no safe level at all. Being under a limit doesn’t protect you if your ability to drive is impaired.
Alcohol
The criminal limit is 80 mg of alcohol per 100 mL of blood, written as 0.08. In Ontario, a reading between 50 and 79 mg, known as the “warn range”, isn’t a criminal offence, but it leads to an immediate roadside licence suspension under the Highway Traffic Act. Ontario also has zero tolerance for drivers aged 21 and under, novice drivers with a G1, G2, M1 or M2 licence, and commercial drivers. Those drivers can’t have any alcohol in their system. Our guide to driving over 80 explains the alcohol limit charge in more detail.
Cannabis
There are two THC limits in the Criminal Code:
- 2 ng to just under 5 ng per mL of blood is a less serious offence, prosecuted summarily, with a maximum fine of $1,000.
- 5 ng or more per mL of blood is a full impaired driving offence, with the same penalties as alcohol.
Ontario’s zero tolerance rules also apply to cannabis for young, novice and commercial drivers.
Alcohol and Cannabis Combined
Where alcohol and cannabis are combined, the limits drop. A blood alcohol level of 50 mg or more together with a THC level of 2.5 ng or more per mL of blood, within two hours of driving, is an offence.
Other Drugs
For certain drugs, any detectable amount within two hours of driving is an offence. These include LSD, psilocybin and psilocin (found in “magic mushrooms”), ketamine, PCP, cocaine, methamphetamine and 6-MAM, a compound produced when the body breaks down heroin. For GHB, the limit is 5 mg per litre of blood because the body naturally produces small amounts of it.
Can You Be Charged the Morning After?
Yes. Alcohol leaves the body slowly, at a rate that varies from person to person, and sleep doesn’t speed it up. A driver who drank late at night can still be over the limit, or impaired, the next morning. THC can also stay in the blood for some time, particularly for regular users, which is one reason the cannabis limits are controversial. The safest approach is not to drive until the substance has fully left your system.
Prescription and Over-the-Counter Drugs
What matters is the drug’s effect, not whether it’s legal. Prescription medications like opioid painkillers, sleeping pills and anti-anxiety drugs can affect attention, judgement and reaction time. If they impair your ability to drive to any degree, you can be charged with impaired operation, even if you took them as prescribed.
How Do Police Test for Alcohol and Drug Impairment?
Police can stop drivers at RIDE checks or after seeing erratic driving. Alcohol impairment is easier to detect at the roadside than drug impairment, so the law gives police different testing tools for each.
Roadside Breath Tests and Mandatory Alcohol Screening
Since December 2018, an officer who has lawfully stopped a driver and has an approved screening device can demand a roadside breath sample without any suspicion of drinking. This is called mandatory alcohol screening. A “fail” result gives police grounds to demand breath samples on an approved instrument at the police station, which produces the readings used in court.
Standardised Field Sobriety Tests
If an officer reasonably suspects you have alcohol or a drug in your body, they can demand that you do standardised field sobriety tests at the roadside. There are three:
- The eye test (horizontal gaze nystagmus). The officer moves an object side to side and watches for involuntary eye jerking.
- The walk-and-turn. You walk nine steps heel to toe along a line, turn and walk back, while following instructions.
- The one-leg stand. You stand on one foot, with the other raised about six inches off the ground, and count aloud.
Officers look for signs like losing balance, starting too early, missing heel-to-toe steps, using arms to balance, or taking the wrong number of steps. Refusing a lawful demand to do these tests is a criminal offence.
Roadside Oral Fluid Drug Screening
Police can also use approved drug screening equipment at the roadside, which tests a saliva sample for drugs like THC and cocaine. They need reasonable suspicion that you have a drug in your body. A positive screen can give grounds for further testing.
Drug Recognition Evaluations and Bodily Fluid Samples
If an officer has reasonable grounds to believe a drug impairs you, they can demand a drug recognition evaluation by a specially trained officer, in most cases at the police station. The evaluation includes eye checks, vital signs and physical tests. If the evaluating officer concludes that a type of drug is causing impairment, they can demand a sample of oral fluid, urine or blood to confirm whether the drug is present. In some cases, police can also demand a blood sample directly.
Refusing any of these lawful demands is the offence of refusal. It carries the same maximum penalties and driving bans as impaired driving, and a higher minimum fine of $2,000 for a first offence. Our article on refusing a breathalyser in Canada explains when police can lay a refusal charge.
What Must the Crown Prove for an Impaired Driving Conviction?
The Crown must prove beyond a reasonable doubt that you operated the vehicle, including having care or control of it, and either that your ability was impaired or that you were over a legal limit within the two-hour window. If the evidence leaves a reasonable doubt on any element, you must be acquitted.
Common issues the defence examines include:
- The officer’s grounds. Whether police had the legal basis to stop you, make each demand and arrest you.
- The testing. Whether the screening device and breath instrument worked properly, were used correctly, and whether samples were taken in time.
- Field sobriety test conditions. Whether the tests were done on uneven or wet ground, in poor lighting, or with unclear instructions, and whether a medical condition or fatigue could explain the results.
- The drug evidence. Whether a drug recognition evaluation was done properly, and whether the drug found was the cause of any impairment.
- Charter rights. Whether you were told why you were stopped and given a chance to speak to a lawyer without delay.
Our guide to defences to impaired driving charges covers these issues in more depth.
Charges and Penalties for Impaired Driving in Canada
The main impaired driving charges are:
- impaired operation by alcohol, a drug, or both
- over 80
- blood drug concentration over the limit
- combined alcohol and cannabis over the limits
- refusing a lawful demand for a sample or test
- impaired driving causing bodily harm or death
Most of these charges are hybrid, meaning the Crown can proceed by indictment or summarily. The maximum is 10 years on indictment, or two years less a day on summary conviction. Causing bodily harm carries up to 14 years, and causing death carries up to life imprisonment. The THC offence of 2 ng to just under 5 ng is summary only, with a maximum fine of $1,000.
The same mandatory minimum penalties apply whether the charge involves alcohol, drugs or both:
| Minimum penalty | Federal driving prohibition | |
| First offence | $1,000 fine. Higher minimums apply at higher readings: $1,500 at 120 to 159 mg, and $2,000 at 160 mg or more. Refusal carries a $2,000 minimum | 1 to 3 years |
| Second offence | 30 days in jail | 2 to 10 years |
| Third or later offence | 120 days in jail | At least 3 years |
A conviction also leaves a criminal record, which can affect work, insurance and travel to the United States.
Impaired Driving Causing Bodily Harm or Death
Where impaired driving causes a collision that injures or kills someone, the charges are far more serious. Impaired driving causing bodily harm can be prosecuted by indictment, with a maximum of 14 years, or summarily. Impaired driving causing death can only be prosecuted by indictment and carries a maximum of life imprisonment. The driving ban can be much longer, and in Ontario a conviction for impaired driving causing death leads to a lifetime licence suspension, which may be reduced after 25 years if certain conditions are met. These cases depend heavily on expert evidence about the collision and the cause of death or injury.
Ontario Licence Suspensions and Other Consequences
Ontario adds its own consequences under the Highway Traffic Act. When you’re charged with over 80, refusal, or impaired driving, police can impose an immediate 90-day licence suspension and a 7-day vehicle impoundment, even if the charge is later withdrawn. Ontario can also suspend a licence at the roadside where an officer believes a drug impairs a driver.
After a conviction, Ontario imposes its own licence suspension, a mandatory education or treatment programme, and an ignition interlock condition when you return to driving. Some drivers can shorten their time off the road through Ontario’s reduced suspension programmes, but they come with strict timing rules.
Our guide to how much jail time for a DUI covers first, second and third offences, and what affects the sentence.
What to Do If You’re Charged With Impaired Driving
Early steps can protect your options later.
- Speak to a lawyer before giving any statement. You have the right to remain silent and to speak to a lawyer without delay after you’re arrested.
- Read your suspension and impound paperwork. It tells you how long your licence is suspended and how to get your vehicle back.
- Don’t drive while suspended. Driving while suspended is a separate offence and can make your situation much worse.
- Write down what happened. Note the time, where you were stopped, what you consumed and when, and what the officers said, while it’s fresh.
- Get advice before pleading guilty. The timing of a plea can affect your eligibility for Ontario’s reduced suspension programmes.
- Attend every court date. Missing court is a criminal offence and can lead to an arrest warrant.
Our guide to your rights when arrested or detained explains your rights at the roadside and the police station.
Speak to an Impaired Driving Lawyer
An impaired driving charge can affect your licence, job, and record. Pyzer Criminal Lawyers has represented people charged with impaired driving, over 80 and refusal across Toronto and the Greater Toronto Area since 2002. Consultations are free, confidential and carry no obligation.
Frequently Asked Questions
Can I Be Charged With Impaired Driving If I Wasn’t Driving?
Yes. “Operating” includes having care or control of a vehicle. You can be charged if you were in the vehicle while impaired or over the limit and could have set it in motion, even if it was parked.
Do I Have to Do a Roadside Sobriety Test?
If an officer makes a lawful demand based on reasonable suspicion that you have alcohol or a drug in your body, you must comply. Refusing without a reasonable excuse is a criminal offence with the same maximum penalties and driving bans, and a higher minimum fine of $2,000 for a first offence. Whether the demand was lawful can be challenged later in court.
Can I Be Charged for Driving on Prescription Medication?
Yes, if the medication impairs your ability to drive to any degree. It doesn’t matter that a doctor prescribed it. Check the warnings on your medication and ask your pharmacist or doctor whether it’s safe to drive.
Will I Lose My Licence Before My Trial?
In Ontario, you can lose your licence immediately. Police can impose a 90-day roadside suspension and a 7-day vehicle impoundment when you’re charged with over 80, refusal or impaired driving. These are separate from any driving ban imposed after a conviction.
Is a DUI a Criminal Offence in Canada?
Yes. “DUI” is an American term, but people in Canada use it to mean impaired driving. In Canada, the offence is called impaired operation, or operating a conveyance over the legal limit, and both are criminal offences under the Criminal Code, not traffic tickets. Ontario’s licence suspensions and impoundment are separate provincial consequences on top of the criminal charge.
Does a First Impaired Driving Conviction Give Me a Criminal Record?
Yes. Impaired driving offences carry mandatory minimum penalties, so a discharge isn’t available, and a conviction results in a criminal record. A record suspension can be applied for later, once the waiting period has passed.
This article provides general legal information only and should not be construed as legal advice. Laws and their interpretation may change, and the application of law to specific circumstances requires professional legal assessment. If you have questions about a legal matter, please contact us for a free consultation.
