Impaired Driving And “Over 80” - Timmins, Ontario

If you have been charged with impaired driving, call our office today to see how we can assist you. We can help you determine what your rights are and whether they have been violated. Based on the facts you provide, we will recommend if a trial is warranted. We can also assist you with a guilty plea, if applicable, and a sentencing position.

OPERATING WHILE IMPAIRED, Section 253 of the Criminal Code

In the context of motor vehicles, a person can be charged under this section if the person was operating a motor vehicle or had the care and control of a motor vehicle while the person was impaired by alcohol or a drug, or if the concentration of alcohol in the person’s blood exceeds 80 ml of alcohol in 100 ml of blood.

A person can be charged under this section even if the motor vehicle was not in motion. So, for example, if you are impaired, even sleeping in the motor vehicle when the vehicle is off could cause you to face a charge under this section of the Criminal Code because you may be found to have had “care and control” of the motor vehicle. There is a statutory presumption that a person sitting in the driver’s seat of a motor vehicle has care and control of the vehicle, and it is up to the accused to rebut that presumption. In the case of R v Szymanski, [2009] OJ No 3623, the impaired accused had been found asleep in the driver’s seat of his running vehicle when the temperature outside was -20 degrees. He explained that he had drunk too much and intended to sleep in his car until he was sober. Although the trial judge believed the accused, the accused was convicted of impaired care or control. The trial judge found the accused guilty of actual control on the basis that there was a real risk that he would change his mind and drive while impaired. Therefore, if you suspect that you are impaired or have over 80 ml of alcohol in 100 ml of your blood, where at all possible, it seems better to not get into a vehicle with the keys and avoid the risk of a criminal charge.

Often, a person will be impaired by alcohol and/or illegal drugs. However, be aware that even prescription drugs can cause a person to be impaired. If this is your case, speak to us to see if your fact scenario offers a defence to your charge.


Under s. 48.4 of the Highway Traffic Act, you can be subjected to your vehicle being impounded for 7 days, which means additional costs to yourself. You will also likely be facing a 90-day roadside licence suspension and a $180 administrative monetary penalty.

The consequences of a conviction under these sections are serious. A first time offender will be subject to a minimum fine of at least $1000, plus a 30% victim surcharge ($300). Additionally, upon conviction, pursuant to section 41 of the Highway Traffic Act, the person will face the suspension of their driver’s licence for one year, or a lesser period of time with a vehicle equipped with ignition interlock. However, the person will have to qualify for the Reduced Suspension with Ignition Interlock Conduct Review Program and also incur the cost of installing the ignition interlock into their vehicle. As well, a conviction of this charge may result in the requirement of an alcohol education or treatment program and may cost over $600 and take over 11 months to complete.

The consequences become for more severe for repeat offenders under these sections as there is a statutory minimum sentence that involves jail time.

Other consequences of these convictions may include an increase in your auto insurance, immigration issues and potential employment/volunteer issues from having a criminal record or if driving is a requirement of your job. Losing your job will have an adverse effect on your family/personal situation and your personal credit.


A person’s failure or refusal to comply with a peace officer’s demand (ex. for a breath sample) may result in the person facing charges under s. 254(5) of the Criminal Code. The Crown has to prove, beyond a reasonable doubt, the elements of this offence, including a valid demand being made, a failure or refusal and the requisite intention. If there is a reasonable excuse for the failure or refusal, there may be a defence to this charge. For example, if there is a language barrier or a mental health issue such that the person did not understand the peace officer’s instructions it may be a defence. However, evidence will likely need to be called, possibly including medical evidence, to substantiate this position. The penalties of a conviction under this section are the same as those for a conviction under operating while impaired.

At Suzanne Desrosiers Professional Corporation, we can assist you in obtaining the results you want. Call us at 705-268-6492 and speak to Florence Gonsalves to find out more about how we can help you.

Communities we service:

Cochrane, Kapuskasing, Kirkland Lake, Temiskaming shores, Iroquois Falls, Gogama, Chapleau, Temagami First Nation, Mattagami First Nation, Wahgoshig First Nation, Constance Lake First Nation, Attawapiskat First Nation, Kashechewan First Nation, Fort Albany First Nation, Moose Cree First Nation, Taykwa Tagamou First Nation, Chapleau Cree First Nation and Missanabie First Nation, Brunswick House First Nation, Matachewan First Nation, Beaverhouse First Nation, Flying Post First Nation, all within the Province of Ontario.