DUI & Impaired Driving FAQ: Ottawa and Ontario

By Brett McGarry, Ottawa criminal defence lawyer, licensed by the Law Society of Ontario since 2008 (licence 55042M). Legal information current to September 30, 2026. The Criminal Code references below are to Part VIII.1, which replaced the former sections 253 to 259 on December 18, 2018.

This FAQ gives general legal information, not legal advice. Every case turns on its own facts. For advice on your charge, contact a lawyer.

Click on a question below to see the answer.

• 1. How do I choose a lawyer for a DUI, impaired driving or Over 80 charge in Ottawa?

  Brett McGarry has defended drinking and driving charges at trial in Ottawa since 2008. These charges are often called impaired driving, Over 80, DUI or DWI. Five questions will help you choose a lawyer.

  Is impaired driving defence a significant part of the lawyer’s practice? Drinking and driving law is technical and changes often. Current research and regular courtroom work are needed to know which defences still apply.

  Does the lawyer understand breath testing? Cases can turn on residual mouth alcohol, instrument error messages, calibration records or the timing of the tests.

  Will the lawyer meet with you first? A first meeting lets you judge the lawyer’s knowledge and professionalism, understand your possible defences and get a range of estimated costs.

  Does the lawyer avoid promises about the outcome? No lawyer can ethically guarantee a result. A realistic assessment always includes some uncertainty.

  Is the lawyer prepared to go to trial? Many impaired driving cases are only won at trial, through the cross-examination of police officers and experts.

• 2. How can a lawyer win an impaired driving or Over 80 case?

  These cases are usually won in two ways: by excluding evidence because your rights under the Canadian Charter of Rights and Freedoms were violated, or by raising a reasonable doubt on an element of the offence.

  In practice, Brett McGarry reviews every stage of the case: the lawfulness of the traffic stop, the grounds and the wording of each breath demand, the roadside and station testing procedures, the instrument records, the proof that you were operating the vehicle, the timing of the tests, and the full disclosure from the police and the Crown. Where it helps, he retains a toxicologist and brings current case law to the judge.

• 3. What are the penalties for an impaired driving or Over 80 conviction?

  A conviction for impaired driving, Over 80 or refusing a breath or blood demand carries a permanent criminal record and the following Criminal Code penalties (sections 320.19 and 320.24).

  First offence: a minimum fine of $1,000. The minimum rises to $1,500 if your blood alcohol concentration was 120 to 159 mg of alcohol in 100 mL of blood, and to $2,000 at 160 mg or more. The minimum fine for refusing a demand is $2,000. The court must also prohibit you from driving for 1 to 3 years, plus any period of imprisonment.

  Second offence: a minimum of 30 days in jail and a driving prohibition of 2 to 10 years.

  Third and subsequent offence: a minimum of 120 days in jail and a driving prohibition of at least 3 years.

  Maximum penalties: up to 10 years in prison if the Crown proceeds by indictment. If the Crown proceeds summarily, the maximum is 2 years less a day in jail, a fine of up to $5,000, or both.

  A victim surcharge is added to every sentence: 30% of the fine, so $300 on a $1,000 fine (section 737). The judge can reduce or waive it in cases of undue hardship.

  Ontario adds its own licence consequences after a conviction. According to the Ministry of Transportation: a first conviction brings a licence suspension of at least 1 year, a mandatory education or treatment program, and an ignition interlock condition of at least 1 year, followed by a zero alcohol and zero drugs condition for at least 6 months. A second conviction within 10 years brings a suspension of at least 3 years and at least 3 years of interlock. A third conviction within 10 years brings a lifetime suspension that may be reduced after 10 years, at least 6 years of interlock and a medical evaluation. A fourth conviction within 10 years brings a lifetime suspension with no reduction. Some Ontario penalties changed on July 1, 2026.

  A criminal record has consequences beyond the sentence. It can limit travel, since the United States and other countries may refuse entry. It can affect employment in fields such as teaching, policing, government, health care, insurance, real estate, engineering and security. A record suspension (formerly called a pardon) can only be requested after a waiting period set by the Criminal Records Act, and it is not recognized by United States border authorities or by the Criminal Code rules on repeat offences.

• 4. What will a conviction cost me?

  The financial cost of a conviction usually lasts for years. Beyond the fine and the victim surcharge, expect:

  Car insurance: premiums rise sharply after a conviction for impaired driving, Over 80 or refusal, and some insurers will not cover drivers with an alcohol-related conviction. Drivers refused in the regular market may have to obtain coverage through the Facility Association, at higher rates.

  Administrative penalty: $550, charged at the roadside when your licence is suspended for 90 days.

  Licence reinstatement fee: $281, paid to ServiceOntario each time a licence is reinstated.

  Back on Track, Ontario’s remedial measures program: $894 after an impaired driving conviction, or $344 after an administrative suspension.

  Ignition interlock: installation, monthly monitoring and removal fees, paid to the service provider for the whole interlock period.

  Lost income, if you need a vehicle for your work.

  These costs are one reason it is worth having a lawyer review the evidence before you decide how to plead.

• 5. How does the ignition interlock program work?

  An ignition interlock device tests the driver’s breath before the vehicle starts and at intervals while driving. Everyone who drives the vehicle must use it, including family members and coworkers, and the device data is downloaded by the service provider on a regular schedule.

  Ontario’s Reduced Suspension with Ignition Interlock Conduct Review Program lets some drivers convicted of an alcohol-impaired driving offence shorten their licence suspension in exchange for an interlock period and the Back on Track program. The Ministry of Transportation describes three streams:

  Stream A, first offence: a suspension of at least 3 months, then at least 9 months with an interlock. You must be convicted and sentenced within 90 days of the offence date, and apply within three months of sentencing.

  Stream B, first offence: a suspension of at least 6 months, then at least 12 months with an interlock. It is available when the Stream A conditions are not all met, including after a trial.

  Stream D, second offence: a suspension of at least 9 months, then at least 18 months with an interlock, with the same 90-day deadline.

  Drivers impaired by a drug or by a combination of alcohol and a drug are not eligible, nor are drivers convicted of an offence causing bodily harm or death, among other exclusions.

  Do not feel pressured into an early guilty plea because of the interlock program. You may have a viable defence, and a lawyer retained right after the charge can review the disclosure and still leave you time to choose Stream A if that is your best option. The 90-day deadline runs from the offence date, so contact a lawyer early.

• 6. Should I just plead guilty?

  Not before a lawyer has reviewed the evidence. Many people charged with drinking and driving offences assume they cannot win. That is often not the case. Without a review of the Crown’s disclosure, you are pleading guilty blind. The prosecution will not tell you if:

  your Charter rights were violated and the evidence could be excluded; the breath tests did not meet the Criminal Code’s technical conditions; the police did not serve you with the required documents; the instrument records show a problem; or a key witness or piece of evidence is missing.

  Even if you decide to plead guilty, a lawyer may be able to negotiate a better outcome. Duty counsel at the courthouse does not have the time to analyze your case in depth.

• 7. What does “Over 80” mean?

  Under section 320.14(1)(b) of the Criminal Code, it is an offence to have, within two hours after ceasing to operate a vehicle, a blood alcohol concentration equal to or above 80 mg of alcohol in 100 mL of blood. The Crown does not need to prove that your ability to drive was impaired. A driver who seems sober can still be convicted on the breath test results.

  Blood alcohol concentration is usually proved with breath samples taken at the police station on an approved instrument. It can also be proved with a blood sample, for example when injuries make breath testing impractical.

• 8. What does “impaired” driving mean?

  Under section 320.14(1)(a), it is an offence to operate a vehicle while your ability to operate it is impaired to any degree by alcohol, a drug or a combination of both. The Crown does not need to show that you were intoxicated. It must, however, prove impairment beyond a reasonable doubt.

  Impairment is usually argued from several kinds of evidence: statements you made to the police (which may be excluded if your right to silence or to counsel was breached); the way you were driving (speeding or driving far below the limit, weaving, poor parking, slow reaction to police lights); an accident; physical signs such as the odour of alcohol, red eyes, slurred speech or unsteadiness; and the video of the breath room and cells.

  Each of these signs has innocent explanations. Bad driving can come from nerves or an unfamiliar road, accidents from weather or road conditions, and police video often shows a steadier person than the officers described. These observations can often be challenged in cross-examination.

• 9. What is “care and control”?

  You do not need to be driving to be charged. Under the Criminal Code, to “operate” a motor vehicle includes having care or control of it, and the penalties are the same.

  Section 320.35 creates a presumption: if you occupied the driver’s seat, you are presumed to have been operating the vehicle unless you establish that you were not in that seat for the purpose of setting the vehicle in motion. Someone asleep in the driver’s seat with the engine off, who can show they had no intention of driving, may rebut the presumption.

  Without the presumption, the Crown must prove that your use of the vehicle created a realistic risk of danger, for example trying to push a car out of a snowbank. It is much harder to prove care and control against someone asleep in the back seat. The outcome depends closely on the facts, and the case law on this point is extensive.

• 10. What does “refusing” or “failing” to provide a sample mean?

  Under section 320.15(1), it is an offence to fail or refuse to comply with a breath, blood or drug demand, without reasonable excuse, knowing that the demand was made. A refusal is an outright no. A failure is usually alleged when the police say the driver did not blow properly, for example by sealing the mouthpiece or blowing too softly.

  The penalties are not the same as for Over 80: for a first offence, the minimum fine for a refusal is $2,000, compared to $1,000 for Over 80 at a lower concentration. The driving prohibition and maximum penalties are the same. You can be convicted of both a refusal and impaired driving.

  Possible defences include: a reasonable excuse, such as a medical condition that made blowing impossible or dangerous; a demand that was not valid under the Criminal Code; unclear instructions from the officer; an instrument that was not working properly; and too few chances to blow.

• 11. Were my Charter rights violated?

  The Charter rights most often at issue in impaired driving cases are:

  Arbitrary detention (section 9). Since December 18, 2018, an officer with an approved screening device may demand a roadside breath sample from any driver lawfully stopped, without suspicion (section 320.27(2)). The stop itself must still be lawful, and the arrest that follows a roadside test must be based on reasonable grounds, for example a properly administered test not distorted by residual mouth alcohol.

  Unreasonable search and seizure (section 8). Breath and blood samples are searches. They are only lawful if the demand meets the Criminal Code requirements for grounds, timing and wording.

  Right to counsel (section 10(b)). The police must tell you of your right to a lawyer without delay, give you a reasonable opportunity to contact the lawyer of your choice and hold off questioning until you have had that opportunity.

  Life, liberty and security of the person (section 7). This covers the right to silence, excessive force, unjustified strip searches and detention in cells longer than necessary.

  Lost evidence (sections 7 and 11(d)). If important evidence is lost or destroyed, the charges may be stayed. This is one reason full disclosure must be pursued.

  Trial within a reasonable time (section 11(b)). Since R. v. Jordan (2016), delay above 18 months for a case tried in the Ontario Court of Justice is presumed unreasonable, subject to exceptions, and the charges may be stayed.

  Brett McGarry reviews every case for Charter breaches and would be pleased to discuss yours.

• 12. How much does an impaired driving lawyer cost in Ottawa?

  The long-term costs of a conviction usually outweigh the cost of a proper defence. Legal fees depend on the number of trial days (impaired driving trials usually last one to two days), the number and complexity of Charter applications, the volume of disclosure, the need for an expert such as a toxicologist, and any additional motions, for example for disclosure or delay.

  After a first meeting, a lawyer should be able to give you a general idea of the cost. After reviewing the full disclosure, the lawyer can provide a detailed estimate or a block fee. A written retainer agreement sets out what is included, the cost of any extra trial day or expert, and a payment schedule.

  Do not assume you cannot afford a lawyer. Discuss a payment plan, ask family for help if you can, and remember that an impaired driving trial usually takes place several months after the charge, which leaves time to plan.

• 13. How can I help my own defence?

  Contact a lawyer as soon as possible. Write down everything you remember while it is fresh: where you were, with whom, what you ate, and exactly what you drank, with the type, size, strength and time of each drink. Write “for my lawyer” at the top of each page to protect it by solicitor-client privilege, and give your notes to no one else. Keep receipts and card slips from bars or restaurants. Do not discuss the case with anyone but your lawyer, including potential witnesses, and politely decline to make statements to the police.

• 14. Will the Crown offer a plea bargain?

  It depends on the evidence. Ontario’s Crown Prosecution Manual (Directive 18, Impaired Driving) states that, absent exceptional circumstances and without prior approval of the Crown Attorney, a prosecutor must not withdraw an impaired or Over 80 charge in exchange for a guilty plea to a Highway Traffic Act offence, nor withdraw an Over 80 charge solely because the readings are low. In practice, a trial is often needed to avoid a criminal conviction.

  Negotiations are only effective once your lawyer knows the weaknesses of the Crown’s case. An informed client may still choose a negotiated outcome, for example to avoid a mandatory minimum jail sentence as a repeat offender, to avoid the more serious charges that apply when bodily harm was caused, or to obtain a reduced fine or prohibition.

• 15. Can I win my case if I failed the breath test?

  Yes, although the law changed significantly in 2018. Today, the offence is defined by your blood alcohol concentration within two hours after you stopped driving, and the breath results are conclusive proof of your concentration only if the Criminal Code’s conditions are met (section 320.31(1)):

  before each sample, the qualified technician ran a system blank test (result of no more than 10 mg) and a system calibration check (within 10% of the target value of a certified alcohol standard); there were at least 15 minutes between the samples; and the results, rounded down to the nearest 10 mg, did not differ by more than 20 mg.

  If the first sample was taken more than two hours after you stopped driving, section 320.31(4) presumes a higher concentration within the two hours: the test result plus 5 mg for every 30 minutes beyond the two hours.

  Your case can still be won by showing that: the technical conditions above were not met or cannot be proved from the records; the tests followed a Charter breach; the Crown cannot prove when you were driving; or the narrow exception for drinking after driving applies (section 320.14(5)). That exception requires that you drank after you stopped driving, that you had no reasonable expectation of being asked for a sample, and that your drinking is consistent with both the test results and a concentration under 80 mg while driving.

  Two older defences no longer work. The “bolus drinking” or “last drink” defence was eliminated in 2018 because the offence now covers the two hours after driving. The “two-beer” or Carter defence, based on your own evidence of how much you drank, cannot be used to challenge breath results that meet the conditions of section 320.31(1).

• 16. How long will I wait for my trial?

  In Ottawa, impaired driving trials usually take place 8 to 12 months after the first court appearance, depending on how quickly the Crown provides disclosure and how many days the trial needs. If the delay becomes unreasonable, your lawyer can apply under section 11(b) of the Charter to stay the charges. Keep a record of how the wait affects you, for example on your job or studies.

• 17. Will I have to testify?

  No one can be forced to testify at their own criminal trial, and choosing not to testify cannot be used against you. The Crown must prove its case beyond a reasonable doubt with admissible evidence, and a defence lawyer can often raise a reasonable doubt without the client taking the stand. In some cases, testifying is the best chance of winning. That decision should only be made after careful discussion with your lawyer, and with proper preparation.

• 18. Will my licence be suspended when I am charged?

  Yes. In Ontario, a driver with a blood alcohol concentration of 80 mg or more, or who fails or refuses a demand, receives at the roadside an immediate 90-day licence suspension, a 7-day vehicle impoundment and a $550 administrative penalty, and must complete a Back on Track program (8 hours of education the first time). This is separate from the criminal charge.

  Do not drive during the suspension. Driving while suspended is a new offence with its own fines and a further suspension. When the 90 days are over, you pay the $281 reinstatement fee to ServiceOntario and meet any program requirement before driving again.

• 19. Can I appeal the 90-day suspension?

  Only on narrow grounds. An appeal to the Licence Appeal Tribunal is limited to mistaken identity (you are not the person to whom the demand was made) or, for a refusal, a medical reason that made you unable to comply. For a suspension based on drugs, the appeal can also rely on a medical condition that affected the evaluation.

• 20. How do I get my car back after the 7-day impoundment?

  The police will give you a notice showing where the vehicle is impounded. After seven days, bring the documents the police gave you, and someone with a valid licence to drive the car, since you will still be under the 90-day suspension.

Sources

Criminal Code, R.S.C. 1985, c. C-46, sections 320.14, 320.15, 320.19, 320.24, 320.27, 320.31, 320.35 and 737 (Justice Laws Website, current to September 21, 2026). Justice Canada, Impaired driving laws. Ontario Ministry of Transportation, Impaired driving (updated June 30, 2026); Reduced Suspension with Ignition Interlock Conduct Review Program (updated June 30, 2026); Reinstate a suspended driver’s licence (updated September 21, 2026). Back on Track, Ontario remedial measures program fees. Tribunals Ontario, Administrative Driver’s Licence Suspension appeal information sheet. Ontario Crown Prosecution Manual, D. 18 Impaired Driving (updated January 16, 2024). R. v. Jordan, 2016 SCC 27.

LEGAL NOTICE

Nothing in this FAQ should be taken to constitute “legal advice” or the creation of a “retainer”. The content of this document represents legal information only. For legal advice, please contact a lawyer with the specifics of your situation.