ALCOHOL

Both federal and provincial laws create offences related to the use of alcohol. The federal government has the power to make criminal laws and the provincial government regulates liquor licenses, the use of roads and highways, vehicle registrations, insurance, and drivers’ licenses. The federal Criminal Code deals with offences such as those that arise from the combination of alcohol and driving. Laws that control the buying, selling, and consuming of alcohol are found in The Alcohol and Gaming Regulation Act, a provincial law. Drinking and driving is also dealt with under The Highway Traffic Act, which allows for driving suspensions in certain cases, and The Vehicle Administration Act, which deals with licence suspensions. In addition, The Automobile Accident Insurance Act contains provisions regarding insurance coverage for intoxicated drivers.

The provincial government sets the rules that control who may drink, where they may drink, and under what circumstances. These laws are found in The Alcohol and Gaming Regulation Act.

Who Can Drink?

Usually a person must be 18 years of age or older to buy, drink, or possess alcohol. The only exception is that a parent or spouse may give an underaged person an alcoholic drink at home. A home includes a hotel or motel guest room, and a tent or a trailer that is actually being lived in. The home includes the property where the house sits. Otherwise, no one can give an alcoholic drink to a person under the age of 18 in any other place. Even at home the drink must be given by a parent or spouse.

In all other cases, a person who gives alcohol to someone under the age of 18 commits an offence. They can be fined $200.00 to $2500.00. The same fine applies if the offence is committed by a store manager or employee.

A person under the legal drinking age is not permitted to buy alcohol or to have someone else purchase liquor for him or her. A person who breaks this law faces a fine of up to $1000.00. It is also an offence to present false identification when attempting to purchase alcohol.

A person who is old enough to drink can legally drink in a private residence. That includes a house, trailer, camper, mobile home, tent, cottage or cabin, a private compartment on a train, and a hotel guest room. The land o which the dwelling sits is usually considered a part of the residence, except in the case of hotel rooms. If a person goes camping, for example, he or she may drink in a tent and at the campsite, if the age requirement is met and if the park rules and regulations permit possession of alcohol.

Drinking is also permitted in a place that is licensed to serve alcohol under The Alcohol and Gaming Regulation Act. A restaurant, a hotel beverage room (bar or pub), a lounge or a club can be licensed. In Saskatchewan, only people 19 years of age or older are allowed to be in licensed premises. There are two exceptions: people under 19 can have a meal in a licensed restaurant or dining room and they can go to a licensed club as a guest or member. Although an underage person can be in these places, they cannot buy, be given, or drink alcohol there.

A person under 19 is not allowed to be in any other licensed place. The owner or an employee of a licensed place may ask to see proof of age. If the young person refuses to produce the necessary identification, the owner must ask the minor to leave the premises immediately. If the minor does not, he or she can be fined up to $1000.00. Anyone who knowingly provides a minor with false identification can also be charged with an offence.

Alcohol in a Vehicle

It is an offence to have alcohol in a vehicle, unless it is being transported from one place where it can be used to another, for example, from one home to another. It is always an offence to drink any kind of alcohol in a vehicle. Having open liquor inside a car may be strong evidence that a person was drinking it, not carrying it from one place to another. A conviction for unlawful transportation or consumption may result in a fine of up to $1000.00, or two months in jail or both.

Being Drunk in Public

Being drunk in a public place is against both federal and provincial laws. A public place is any place other than a private home. Under the Criminal Code, a person who creates a disturbance by being drunk in or near a public place commits an offence.

Someone who is drunk enough to cause a disturbance in a bar could be charged with this offence. Being drunk and singing too loudly, shouting or fighting are some of the actions that also create a disturbance. This is a summary conviction offence. It carries a maximum sentence of a $2000.00 fine or 6 months in jail or both. A conviction results in a criminal record for the offender.

The Alcohol and Gaming Regulation Act, a provincial law, forbids being drunk in a public place. A person does not have to be creating a disturbance to be charged with this offence. Simply being drunk in public is enough.

Police Powers

The Alcohol and Gaming Regulation Act gives the police the power to search for alcohol that is being kept, sold, or used illegally. The police may obtain a warrant to search places or premises, if there are reasonable and probable grounds to believe that an offence under the Act has occurred, and that alcohol is being illegally kept, sold or used. They may also obtain a warrant if evidence of an offence under the Act is likely to be found there. In very limited circumstances, a search may be conducted without a warrant. A warrant allows the police to use force to enter if they have to, and to break open any doors, cupboards, closets, boxes or other things that are suspected of hiding illegal liquor.

Any liquor that appears to be illegally kept or used may be seized by the police, who can then demand the names and addresses of any people found in the place. A person who refuses to gibe this information, or gives false information, may be arrested. Let’s look, for example, at a group of young people driving around in a car with an open case of beer. They are stopped by a police officer who believes that they are breaking the law by drinking in a vehicle. The officer can seize the beer, and everyone in the car must give his or her correct name and address, even if he or she was not drinking.

The Alcohol and Gaming Regulation Act also gives police the power to arrest without a warrant anyone who is found committing a liquor offence or anyone who is believed to have broken one of the liquor laws.

Drinking and driving causes very serious harm and threatens the safety and well-being of the community. The most important laws that control drinking and driving are found in the federal Criminal Code. These offences include impaired driving, having a blood alcohol level of over .08%, and causing injury or death while driving drunk. Drinking and driving offences apply to anyone who is driving or has care and control of a vehicle that is moved by power other than human muscle power. That includes a car, a truck, a boat, farm equipment, snowmobiles, aircraft and all terrain vehicles.

It is important to note that provincial legislation allows for a roadside licence suspension if a new driver has any level of alcohol in their blood. Experienced drivers are subject to a roadside licence suspension if their blood alcohol level is over .04.

Over .08, or "zero eight", is the common name for the offence when a driver’s blood alcohol level is more than .080% (the maximum reading allowed under the Criminal Code). It also can be referred to as "over 80", meaning that a driver has more than 80 milligrams of alcohol per 100 milliliters of blood. There does not have to be any noticeable problem with a person’s driving for this charge to be laid. Simply being over the legal limit is enough. A person does not actually have to be driving to be charged with this offence; the offence also includes having care or control of a vehicle. Being found drunk in the driver’s seat is enough for a conviction unless that person can show that he or she did not have care and control of the car.

It is hard to know exactly what a person’s blood-alcohol level will be after a certain number of drinks. It varies from person to person. Even the same person’s body will absorb alcohol at different rates at different times. Such things as weight, body type and eating can affect a person’s blood alcohol level. For instance, the average person under 55 kilograms would be "over 80" with only two drinks in an hour. Whether or not a person feels drunk is not an accurate way to tell if he or she is over the legal limit.

How Blood Alcohol is Measured: The Breathalyzer

Blood alcohol level is usually measured by a machine called a breathalyzer, although it can be measured from a blood sample as well. Often a roadside screening test is done first to find out if a breathalyzer test at the police station is required. Only the results of the breathalyzer test can be used in court. The roadside test is just a screening process used by police.

The roadside screening device does not give an exact reading of the blood alcohol level. Instead, it has three lights which read "pass", "warn" or "fail". A "warn" or "fail" reading means that the driver may be given a breathalyzer test to get an exact reading.

To take a breathalyzer test, the driver has to give at least two breath samples. These are taken at least 15 minutes apart. Both readings are recorded on the certificate which is used in court as evidence of the driver’s blood alcohol level.

The police may ask a person to take a breathalyzer test if his or her driving is erratic, or if police believe that the driver has been drinking. If someone is stopped at a roadside checkpoint or for a traffic violation, a police officer may ask the person to take a breathalyzer test when there is alcohol on the driver’s breath.

A police officer who has reason to believe that a person has been driving while impaired within the last three hours may ask the person to take a breathalyzer test, even if that person is not in his or her car when the demand is made. For example, if an officer sees someone in a car weaving all over the road and then finds that person at home half an hour later, the driver could be required to take the test.

When a police officer asks for a breath sample, a person may have a right to get legal advice. It depends on the type of test. The courts have decided that the driver does not have the right to consult a lawyer when a roadside test is requested. The roadside test is seen as a screening process only and not the basis of a criminal charge.

A person does have the right to consult a lawyer if he or she is asked to take a breathalyzer test. There are several reasons why a person in this situation has the right to get legal advice. First, the results of this test could be used to charge the driver. Second, the police have some time to do the testing. This gives the driver enough time to contact a lawyer for advice. This does not mean that the test has to wait until a lawyer arrives at the police station. A lawyer can give advice over the phone. If after talking to a lawyer, or having had a reasonable opportunity to do so, the driver refuses to take the test, a charge of refusing to take a breathalyzer test may be laid.

Blood Samples

In some situations, the police can demand a blood sample rather than a breath sample to measure blood alcohol levels. A demand for a blood sample is made when the police officer believes that the driver’s physical condition makes him or her unable to take a breathalyzer test, or it would be unreasonably difficult to obtain breath samples. For example, a person who suffers a mouth or face injury in an accident might not be able to provide a proper breath sample. A blood sample may be demanded instead.

Samples of blood can only be taken by, or under the direction of, a doctor if the doctor agrees that it is not dangerous to the person’s life or health. Refusing to give a blood sample is an offence with the same consequences as refusing a breath test.

When a driver is unconscious or otherwise unable to agree to give a blood sample, the police officer can get a warrant to allow the samples to be taken. Some conditions, however, must be met. A doctor must agree that: 1) the person is unable to agree to give a sample, and 2) taking the sample will not put the person’s life or health in danger.

A person who has blood samples taken has the right to have one sample tested independently.

Sentences for "Over .08"

Driving with a blood alcohol level or more than .080% is a dual offence with minimum sentences. These minimums are the same whether the offence is treated as a summary conviction or an indictable offence. Under the Criminal Code, a first offence carries a fine of at least $600.00. A second offence leads to at least 14 days in jail, and any further offences carry a minimum sentence of a 90 day jail term. The driver also loses his or her licence for a certain period of time.

The maximum sentences depend on whether the offence is prosecuted as a summary conviction or an indictable offence. A summary conviction offence has a maximum of six months imprisonment, while the indictable procedure can result in a jail term of up to five years. Very high blood alcohol levels can be considered as aggravating circumstances for sentencing purposes.

It is an offence to refuse or to fail to give a sample of breath for either a roadside screening test or a breathalyzer test, or to refuse or fail to provide a blood sample when demanded. Refusal includes not blowing hard enough to give a proper sample. The possible sentences are the same as for the "over .08" offence. This offence is included with any "over .08" or impaired convictions when it comes to deciding whether the sentence is a first, second or further conviction.

"Impaired" means that a person’s ability to drive a vehicle has been reduced by the use of alcohol or drugs. It is an offence to drive or to have care or control of a vehicle while impaired. It is important to note that a conviction does not depend on a particular blood alcohol level. A person could be well under .08 and still be charged with impaired driving. It is the effect of the alcohol on driving ability that is examined. A second important point is that a person does not have to be driving to be convicted. Just as for the "over .08" offence, being in control of a vehicle is enough. When a person is found drunk in the driver’s seat with the keys in the ignition, they may be found to have care and control of the vehicle.

A police officer’s observations of the way that a person drove or the way that he or she looked and acted when stopped may be used as evidence to show that the person was impaired.

Some of the things an officer looks for are: Was the car weaving across the road? Did the driver miss a stop sign or a red light? Does his or her breath smell of alcohol? Does the driver need to lean on something to stand up? Is he or she unsteady? Are his or her eyes red and watery?

The police may also ask a driver to try some sobriety tests, such as walking a straight line heel-to-toe, or touching his or her nose with their fingertips with eyes closed. A person is not required to do these tests, but if the person performs them, the results may be used in court.

The sentences for driving while impaired are the same as those for an "over .08" offence. An impaired driving conviction is included with any "over .08" or breathalyzer refusal convictions in deciding if an offence is a first, second or further conviction.

A person who drives while impaired and injures someone else commits an indictable offence. The minimum sentences are the same as those given for an "over .08" offence, but the maximum sentence can be 10 years imprisonment.

The maximum sentence for an impaired driver who causes the death of another person is 14 years in jail. A charge of criminal negligence causing death could also be laid in this situation. This offence means that the driver is ignoring the fact that his or her actions (driving while impaired) could cause danger to the lives or safety of other people. The maximum sentence for this indictable offence is life imprisonment.

When a person is convicted of a drinking and driving offence, the court imposes a ban on driving. Both federal and provincial law require a licence suspension, but the suspensions may be for different lengths of time. A person may not drive until the longer suspension expires. Under the federal Criminal Code, the ban for a first offence is for at least one year, and can be for as long as three years (no injuries or death caused). A second offence means a minimum ban of two years. Any further offences will result in a ban of three years.

Where the offence involves injury or death and has a maximum sentence of life imprisonment, the court can order a driving ban for any period that it feels is proper. This could mean a lifetime ban from driving. If the offender faces a maximum jail term of more than fiver years but less than life, the ban can last as long as 10 years. In any other case, the maximum ban is three years.

Provincial Law

The consequences of a criminal conviction for a drinking a driving offence do not end with the sentence and a criminal record. Under provincial laws, drivers convicted of Criminal Code driving offences may receive a longer licence suspension, or lose insurance coverage. Each province regulates highway traffic and has the power to make laws in this regard.

As part of the fight to save lives on our highways, Saskatchewan has introduced "zero tolerance" regulations for new drivers, lowered the legal limit to .04 for other drivers, increased statutory licence suspensions, and introduced a probation period for new drivers of any age.

Provincial law may say that a person convicted of any of the federal drinking and driving offences, including refusal to give a breath sample, receives an automatic suspension of their driving licence.  This is separate and distinct from any suspension that a Court may impose as a result of a conviction under the Criminal Code.

Administrative Suspensions

If you are charged with a drinking and driving offence then you will receive an automatic and immediate administrative suspension of your licence for a period of 3 months.  This suspension is separate and distinct from any suspension that a court may impose as a result of a conviction under a criminal code.  This suspension is imposed even before you are convicted by a court of the criminal charges.

Roadside Licence Suspensions

While it is a criminal offence to drive with a blood alcohol level over .08%, provincial law allows for a roadside licence suspension if a new driver has any level of alcohol in their blood. Experienced drivers will be subject to a roadside suspension if their blood alcohol level is over .04%, or if they refuse to take a roadside screening test. The length of the suspension and consequences will vary depending on the category of the driver and whether it is a first, second, or third violation.

Probationary Drivers

If you have a probationary or graduated licence, you can be suspended from driving if you are found to have consumed ANY amount of alcohol.  You should consult with the Driver Control Board of Alberta for details of this program

Interlock Device

A court may allow you to apply for a interlock ignition device in accordance with provincial programs after the expiry of a portion of the period of your sentence.  Being given permission to apply does not mean you will automatically be accepted into the interlock program.

If you are accepted into the interlock program you will be responsible for the costs of installing and maintaining the device in your vehicle.  You should consult with Alberta Transportation for details of this program

People who drive while under the influence of alcohol or drugs can find themselves without insurance coverage if they are involved in accidents. This means that a drinking driver would not receive any payment for damage to his or her own vehicle. The drivers and passengers of other vehicles involved in the accident are not affected, however. These people may be compensated for their injuries or damages. The drinking driver, however, can be made to repay this amount .  A conviction for drinking and driving will also usually bring with it a hefty increase in future insurance premiums.

Copyright (c) 2006-2009 Dimnik & Company*
*Registered trade name of Michael J. Dimnik Prof. Corp