The charge of impaired driving (sometimes called driving under the influence or DUI) is a charge pursuant to section 320.14(1)(a) of the Criminal Code. The police routinely lay this charge in conjunction with failing the breathalyzer (section 320.14(1)(b) of the Criminal Code) because it can be proven by the police officer’s testimony as to an individual’s driving and his state of sobriety. The reason the police lay this charge is that they will have a second chance to get a conviction if for any reason the evidence for the breathalyzer charge cannot be admitted in court. The punishment for a first conviction for impaired driving in Nova Scotia is usually a stiff fine although in some jurisdictions (Prince Edward Island in particular) judges have imposed jail time. There is also a licence suspension of at least one year.

The charge of failing the breathalyzer is the charge the police lay pursuant to section 320.14(1)(b) of the Criminal Code and carries the same penalties as impaired driving. The defence of breathalyzer cases can be complex and technical because of the rules outlined in the Criminal Code dealing with the admissibility of the certificate with the breath readings. Police officers frequently make mistakes in following these rules which may provide an accused with a defence which an experienced criminal defence lawyer can make in court. There is no such thing as an automatic conviction simply because you have failed the breathalyzer. The penalties for a first conviction of failing the breathalyzer differ depending on your readings, the fine imposed increases in consequence of the readings; i.e. the higher the reading the higher the fine. The drivers licence suspension is the same as for impaired driving.

The charge of refusal may be laid by the police if an individual refuses the demand to provide a sample of his breath pursuant to a roadside screening demand or refuses to provide a breath sample for the breathalyzer test which is conducted at the police station. The penalties for a charge of refusal start at a mandatory minimum fine of $2,000.00 and a mandatory minimum driving prohibition of one year for a first offence. Additionally, there have been some cases in Nova Scotia where the Crown Attorney has sought convictions on both an impaired driving charge and a refusal charge, essentially doubling the penalty.

The law relating to the judicial interpretation of when someone “refuses” is complicated. There is no automatic conviction for a charge of refusal and the burden is on the police to prove the charge beyond a reasonable doubt. Experienced criminal defence lawyers examine every detail of an individual’s encounter with the police to determine how to best defend against a refusal charge.

In Nova Scotia the sentence imposed for a first conviction for impaired driving, failing the breathalyzer or refusal is usually a stiff fine. The size of the fine will depend on the surrounding circumstances and in convictions for failing the breathalyzer will usually increase in accordance with the readings. The starting fine for failing the breathalyzer is $1,000.00 and goes up from there. The starting fine for a refusal of the breathalyzer is $2,000.00. A mandatory licence suspension of at least one year will be imposed for a first offence. For subsequent offences the driving prohibition will likely be longer. For example, regardless of the driving prohibition issued by the Court, the Registrar of Motor Vehicles in Nova Scotia will suspend your licence for three years for a second conviction. The Criminal Code allows for an individual convicted of an impaired driving to have an alcohol ignition interlock device installed in their vehicle. There are differing waiting periods after conviction for this be installed depending on your particular circumstances. The Court can veto the availability of the interlock program if it deems it appropriate. In some other jurisdictions in Atlantic Canada, Prince Edward Island in particular, some judges have sentenced individuals charged with impaired driving and related offences to a period of jail time for the first offence in addition to the licence suspension.

For a second conviction for impaired driving the Criminal Code imposes a minimum sentence of thirty days in jail plus a licence suspension of at least two years. In some circumstances the minimum sentence can be served in the Correctional Centre on weekends if an individual is employed. Some judges will impose more than thirty days for a second conviction if the readings are particularly high or there are other circumstances which justify the imposition of additional jail time.

A conviction for a third impaired driving or related offence results in a minimum jail time of one hundred and twenty days plus a licence suspension of at least three years. The Registrar of Motor Vehicles will impose a much longer driving prohibition and may decide not to renew the drivers’ licence at all. A court could sentence a person who has multiple convictions for impaired driving and related offences to a period of up to ten years in prison if the Crown Attorney decided to proceed with the matter by way of Indictment.

Prior to December, 2018, the Court would, in some circumstances, impose a “curative discharge” after a conviction for impaired driving and/or related offences if there is evidence that the person is in need of curative treatment in regard to his consumption of alcohol or drugs and the court is convinced that proceeding in such a manner is not contrary to the public interest.  In December, 2018, the Criminal Code was amended and removed a curative discharge as a sentencing option.  It was replaced with a discretion provided to the Courts to delay sentence for an accused and ultimately allow a sentence that is lower than the mandatory minimum if attending a treatment program “approved by the province”.  There is currently no such program in Nova Scotia.   The Nova Scotia Criminal Lawyers Association has been in direct communication with the Attorney General to have something put in place.

The Criminal Code provides for a period of imprisonment for a term of up to fourteen years for anyone convicted of the offence of impaired driving causing bodily harm. These charges are sometimes laid in the context of motor vehicle accidents where persons other than the Accused have been injured. This is a very serious charge and the Accused has a right to be tried by a judge and jury.

The Criminal Code provides for a sentence of up to life in prison for a conviction on the charge of impaired driving causing death.  This is one of the most serious offences under the Criminal Code  and a person so charged has a right to a trial by a judge and a jury.  This charge will usually arise in cases where there has been a motor vehicle accident and someone is killed as a result of the driving while impaired by the Accused.