Impaired Driving

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Impaired Driving 2019-10-04T20:12:11+00:00

Impaired Driving Lawyer Calgary

Impaired Driving Lawyer Calgary

Impaired Driving is also known as Driving Under the Influence (DUI) or Driving While Intoxicated (DWI). Impaired Driving is a Canadian term, while DUI and DWI comes from the American terminology. Impaired Driving is the term most often used in Canada to refer to a number of alcohol-related driving offences such as Driving Over the Legal Limit (also known as Over 80 or Over .08), Refusal to Provide a Breath SampleFailure to Provide a Breath Sample, or Care and Control While Impaired.

If serious injuries have resulted as a consequence of alcohol-related driving, the charges may be upgraded. For example, in the case of Impaired Driving, the charge may be upgraded to Impaired Driving Causing Bodily Harm or Impaired Driving Causing Death.

Approximately 1500 people are charged with one or more of these offences each year in Calgary. Not all people charged are convicted. Impaired Driving is very subjective. There are many reasons why someone may appear impaired, including stress, sickness, or momentary inattention. It is important to analyze the evidence objectively and discern what may really be evidence of impairment by alcohol.

Impaired Driving and similar offences are very technical. Police must follow a number of procedures to comply with their own training and your Constitutional Rights under the Canadian Charter of Rights and Freedoms. Moreover, they must ensure that the devices used to obtain evidence against you are functioning properly and are operated in the correct manner. 

Impaired Driving Charge

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

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

Although 99% of the cases we deal with, and most likely the case you may require assistance with, involve a motor vehicle, the offence technically applies to any “conveyance”, including a boat, airplane, or railway equipment. The offence also applies to things like electric scooters, electric bicycles, and even hover boards. If the device has a motor (even an electrically powered one), it will likely meet the definition of a “motor vehicle”. 

To find you guilty of impaired driving, the prosecution need only prove that your ability to drive was slightly impaired by either Alcohol, Drugs, or a combination thereof. In deciding whether the Crown has proven its case, Judges will frequently consider the following types of evidence:

  • Your eyes – whether they are red, bloodshot, glassy, dilated
  • The smell of alcohol on your breath – whether it’s slight or strong
  • Your driving pattern – was there speeding, swerving, failure to obey traffic control devices, hitting the curb, unexplained accident, etc
  • Your pattern of speech – slur, slow, drawn out, incomprehensible
  • Your balance while standing or walking – swaying, wobbling, stumbling, leaning
  • Your hand/eye coordination – difficulty retrieving your license, insurance, registration, difficulty getting out of the vehicle, difficulty dialing the phone, etc
  • Any admissions you made to the police (either in transport, in between giving breath samples at the police station, or before you were released)

Since your own words can be used against you, it is critical that you say no more than necessary when in police custody. We have unfortunately seen many cases where the accused would have beat the charge had he or she 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 requests for breath samples. They may just be friendly officers, but on the other hand, this may be a ruse on their part to encourage you to talk about your alcohol consumption and admit that you were too drunk to drive.

Most recently in Alberta, and in particular, in Calgary, the police have been equipped with In Car Digital Video (ICDV) and Body Worn Cameras. It is very common now for these videos to record how someone being investigated by the police appeared, and serve as the best evidence of impairment, or lack thereof.  It is therefore critically important to always request and review this evidence before making a decision on how to proceed.

Bail Conditions for Impaired Driving Charge

It is rare for the police to impose release conditions on someone charged with impaired driving. Only if this is your second, or subsequent offence in short order, would there be a need for restrictions such as not allowing you to be behind the wheel of a motor vehicle, or abstain from drugs/alcohol. 

If you have a string of recent related conviction(s), the prosecutor may have a compelling argument to convince a judge that you should be kept in custody until your charges are dealt with. Even then, our lawyers can neutralize that argument by providing the judge a release plan showing that you are not a danger to re-offend. 

The most significant condition that you will experience as a result of being charged is a provincial Alberta Administrative Licence Suspension (AALS). Please read on for more information about this suspension and how to challenge it. Our knowledgeable impaired driving defence lawyers can pursue an appeal of your suspension if you come to us well in advance of the 30-day appeal period.

Defending Impaired Driving Charges

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. In particular, 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 your guilt?
  • 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?

Although at first blush, the situation may seem hopeless, we can help. There are many defences, and indeed, we typically win the vast majority of these types of cases, whether the impairment is by drug or alcohol.

The Sentence

The punishment for impaired driving is significant and carries a maximum sentence of up to 10 years in jail.  A conviction for this offence can have significant consequence for employment and immigration. 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 jail sentences through curative treatment provisions. If you can convince the court that you have an addiction to drugs or alcohol that requires medical treatment, the Court may decide to place you on probation and require you to attend treatment instead of sending you to jail.

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

Our defence lawyers will explore the curative treatment option with you at your free initial consultation. If you wish to pursue it, we will start work immediately on creating and collecting the complex and detailed medical evidence required to make the best argument.

Recent Important Changes to Impaired Driving in Alberta

Prior to May 2017, anyone charged with most alcohol-related driving offences had their license suspended indefinitely until their charges were resolved. This suspension was imposed not by the criminal court, but by the provincial licensing department that regulates driving privileges in Alberta. Criminal defence lawyers in Alberta (including our office) challenged and successfully overturned this legislation, demonstrating that it violated the accused’s constitutional rights. 

The Provincial government then introduced new legislation in April 2018 that creates an automatic 90-day provincial suspension, followed by a further 12 month suspension. After the 90-day suspension elapses, you are eligible to drive during the further 12 month suspension only if you participate in the Ignition Interlock Program. Please be aware that driving during this suspension period may result in further charges.

There is nevertheless a mechanism for challenging both the 90 day and further 12 month suspension through an Alberta Administrative Licence Suspension Appeal. The timeline for filing such an appeal is a maximum of 30 days from the date of the initial suspension. To learn more about this process, please contact us directly to determine whether your case meets the criteria for an effective appeal. 

Impaired Driving FAQs

  1. How do I find the best lawyer for my DUI charge?
  2. Can I be charged with a DUI even if I wasn’t driving or the vehicle wasn’t moving (Care or Control?)
  3. What is the penalty if I plead guilty or I am found guilty of a DUI?
  4. How will my DUI charge affect my license in Alberta?
  5. How can I avoid a criminal record if I am guilty of a DUI?
  6. Can I go to the US if I am found guilty of a DUI?
  7. Can I get charged with a DUI if I am driving while I am high on drugs?
  8. A criminal defence lawyer’s top 5 tips for fighting an impaired driving charge

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Glowing Reviews From Our Clients

Charges from outside of Calgary near Okotoks: Michael had helped me through this time with getting both charges dropped. Michael has been very thoughtful and professional throughout the tough times. He is the Top Lawyer in the Calgary area. I highly recommended him to anyone facing traffic charges.


I would definitely recommend Michael Oykhman and his team. Not only were my charges dropped but the professionalism and empathy I was shown gave you confidence knowing someone was working just as hard as you would be to obtain the best possible result. For anyone looking for lawyer he is one of the best hands down.



Disclaimer: All results of cases handled by the lawyer/firm are not provided. The results provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.

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Disclaimer: All results of cases handled by the lawyer/firm are not provided. The results provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.

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