Being charged with impaired driving in Alberta is one of the most disorienting moments a driver can experience. The roadside investigation moves quickly, the licence suspension starts immediately, and the file can move down very different paths depending on what the police decide to do. Some impaired driving investigations result in a roadside Notice of Administrative Penalty under the SafeRoads program and nothing more. Some result in a criminal charge under the Criminal Code of Canada. Some result in both. The lawyers at Davidson Gregory defend impaired driving cases on all of these paths, across Alberta, including in Edmonton, Calgary, Red Deer, Fort McMurray, Grande Prairie, and St. Albert.
Impaired driving charges go by a lot of different names. People search for a DUI lawyer, a drunk driving lawyer, a drinking and driving lawyer, or an over 80 lawyer. In Canadian law all of these terms point at the same family of offences under the Criminal Code: impaired driving, over 80, drug-impaired driving, and refusal to provide a breath sample. This guide uses the legally accurate term, “impaired driving,” throughout, but the discussion applies whatever you call the charge.
This guide explains how an impaired driving charge actually moves through the system in Alberta, what the Crown has to prove on conviction, the consequences if a conviction is entered, and where experienced impaired driving lawyers add the most value. It is general information, not legal advice.
What is an Impaired Driving Charge Under the Criminal Code?
Impaired driving is governed by sections 320.14 and following of the Criminal Code. The Criminal Code creates several distinct impaired driving offences. The most common are operating a motor vehicle while the ability to do so is impaired by alcohol or drug, operating a motor vehicle with a blood alcohol concentration of 80 milligrams or more in 100 millilitres of blood (commonly called over 80), operating a motor vehicle with a prohibited drug concentration in the body, and failing or refusing to comply with a demand for a breath or bodily sample.
Each of these offences has its own elements, its own evidentiary requirements, and its own defences. A driver who is told at the roadside that they failed an Approved Screening Device test is on a different evidentiary path than a driver who is observed by a police officer to be impaired by drugs or alcohol. A driver charged with refusing to provide a breath sample is on a third path. Impaired driving is treated by the public as a single offence, but in the Criminal Code it is a family of related offences with different proof requirements.
Drug-impaired driving has become an increasingly active area of prosecution. The legalization of cannabis under the Cannabis Act, SC 2018, c 16, did not legalize driving while impaired by cannabis or by any other drug. Drug-impaired driving cases bring their own scientific and procedural issues, including drug recognition evaluations and bodily sample demands.
SafeRoads and Criminal Charges: How the Tracks Line Up
Alberta has two distinct legal tracks for impaired driving. Not every investigation runs on both. The administrative track is the SafeRoads program: a roadside Notice of Administrative Penalty (often called an IRS suspension, short for Immediate Roadside Sanction) under the Traffic Safety Act, RSA 2000, c T-6, that takes the driver’s licence immediately and triggers vehicle seizure, fines, and mandatory programs. The criminal track is a charge under the Criminal Code that proceeds through the Alberta Court of Justice or, in some cases, the Court of King’s Bench.
Many impaired driving investigations in Alberta now produce a SafeRoads contravention only and no criminal charge. The SafeRoads program was designed to handle a wide swath of impaired driving cases administratively, and the police do not lay a Criminal Code charge in every file. Other investigations produce a criminal charge with a SafeRoads sanction running alongside. The combination depends on the facts of the file and on the police officer’s decisions on the day.
That distinction matters from the first call to a lawyer. A driver on a SafeRoads-only file is dealing with an administrative process under provincial law: balance of probabilities, fast timelines, no criminal record. A driver on a criminal charge is dealing with the Criminal Code: proof beyond a reasonable doubt, longer timelines, mandatory minimums and a criminal record on conviction. A driver on both tracks is dealing with two different proceedings against the same evidence and needs strategy that respects both. A DUI lawyer or impaired driving lawyer in Alberta has to recognize which track or tracks the file is on and respond accordingly. The lawyers at Davidson Gregory handle SafeRoads-only files, criminal-only files, and combined files.
From the Roadside Investigation to the First Court Appearance
An impaired driving charge typically follows a sequence that looks something like this. A police officer makes a traffic stop or attends a scene, forms a suspicion of alcohol or drug consumption, and makes a demand. Depending on the circumstances, that demand is for a sample of breath on an Approved Screening Device at the roadside, for a sample of breath on an approved instrument back at the detachment, for a sample of bodily fluid, or for participation in a drug recognition evaluation. Refusal to comply with a lawful demand is itself a criminal offence.
If the police officer is satisfied the driver has committed an offence, the driver is arrested and read their rights under the Canadian Charter of Rights and Freedoms, including the right to retain and instruct counsel without delay. The driver is then usually taken to a police detachment where the formal breath samples or other evidence is taken. From the detachment, the driver is typically released on conditions and given documents requiring them to attend court at a later date.
By the time the driver leaves the police station, the SafeRoads suspension is already in effect. Whether a criminal charge is also coming depends on the file. If a criminal charge is laid, the first court appearance follows within weeks. Bail conditions, disclosure requests, and the SafeRoads hearing can all become live issues at the same time. Early advice from a drunk driving lawyer, DUI lawyer, or impaired driving lawyer in Alberta is one of the most important steps a driver can take in the first days of an impaired driving file, whether it is a SafeRoads-only file or a combined SafeRoads and criminal file.
What does the Crown have to Prove in an Impaired Driving Case?
The Crown’s burden depends on the specific charge. In an over 80 case under the Criminal Code, the Crown has to prove that the driver was operating a motor vehicle, that the driver had a blood alcohol concentration at or above the prohibited level within the relevant time window, and that the breath samples were obtained in a way that allows the results to be admitted. In an impairment case, the Crown has to prove operation of a motor vehicle and impairment of the driver’s ability to operate it, by alcohol, drug, or a combination. In a refusal case, the Crown has to prove a lawful demand, the driver’s knowledge of the demand, and a failure or refusal to comply without reasonable excuse.
Each of these proofs has its own pressure points. Identification, the timing of the demand, the qualifications of the officer or technician, the calibration and operation of the approved instrument, the chain of custody of bodily samples, and the lawfulness of the underlying detention all come up routinely. None of these issues is obvious from a driver’s perspective. They are visible only to an impaired driving lawyer or DUI lawyer who has read the disclosure with real experience in over 80, refusal, and drug-impaired driving files.
Charter Issues that Come up in Impaired Driving Cases
Impaired driving prosecutions are one of the most Charter-active areas of Canadian criminal law. Most files involve at least one of section 8 (search and seizure), section 9 (arbitrary detention), and section 10 (right to counsel) of the Canadian Charter of Rights and Freedoms. A roadside stop is a detention. A breath demand is a seizure. The reading of rights, the access to counsel, and the conduct of the investigation all raise Charter questions on a routine basis.
Where the police have breached the Charter, the defence seeks to exclude the resulting evidence under section 24(2) of the Charter. In an impaired driving case, exclusion of the central piece of evidence, such as the breath test results, often disposes of the case. Charter analysis in impaired driving files is technical, fact-driven, and one of the main reasons experienced impaired driving lawyers are required.
Penalties on Conviction: Fines, Prohibitions, and Prison
A sentence for an impaired driving conviction in Canada has two distinct components, and both are mandatory. The first is the mandatory minimum punishment under the Criminal Code. The mandatory minimum on a first impaired driving conviction is a fine, with the minimum amount scaled to the blood alcohol concentration and other factors. The mandatory minimum on a second conviction is a period of imprisonment. The mandatory minimum on a third or subsequent conviction is a longer period of imprisonment. These minimums set a floor on the punishment portion of the sentence; they are not a ceiling.
The second component is a mandatory driving prohibition. The Criminal Code requires the sentencing court to impose a driving prohibition on conviction for any impaired driving offence. The prohibition is part of the sentence, sitting alongside the fine or jail term, not in place of it. The length of the prohibition is set by the Criminal Code and increases on each successive conviction.
Sentencing in impaired driving cases also takes account of aggravating factors, including bodily harm or death caused by the impaired driving, very high blood alcohol concentrations, prior related convictions, and the use of the vehicle in a way that endangered others. Crown counsel often seek jail well beyond the statutory minimum in serious cases. Sentencing in impaired driving causing bodily harm or death cases is its own area of law, with appellate guidance from the Alberta Court of Appeal.
Alberta runs a mandatory Ignition Interlock Program that applies to anyone convicted of, or who pleads guilty to, an impaired driving or refusal offence through the criminal process. The program is provincial, not federal, and it is administered through the licensing system rather than through the criminal court. Once a driver is convicted or has pled guilty to one of these criminal charges, participation in the program is required, and the driver must have an interlock device installed on every vehicle they operate. The interlock requirement runs alongside the criminal driving prohibition: a driver who is otherwise serving a Criminal Code driving prohibition can drive during the prohibition period under the terms of the program. The length of the mandatory participation and the conditions attached to it depend on whether the offence is a first, second, or subsequent conviction and on the facts of the file.
Collateral Consequences: Insurance, Employment, and Travel
The criminal sentence is only part of the story. An impaired driving conviction has consequences that extend well beyond the courtroom.
Insurance premiums after an impaired driving conviction typically rise sharply. The increased premiums often persist for years.
Employment can be affected. Commercial drivers, professional drivers, healthcare workers, lawyers, accountants, and others in regulated industries can face professional licensing consequences, employer-imposed restrictions, or termination after an impaired driving conviction. Drivers whose job depends on being able to drive can find that the criminal driving prohibition by itself ends the employment.
Travel and immigration can also be affected. Entry to the United States is regulated by United States authorities and an impaired driving conviction can complicate cross-border travel for years. The interaction between Canadian criminal records and United States immigration law is its own specialized area and changes over time.
Why Working with an Experienced Impaired Driving Lawyer Matters
Impaired driving cases are deceptively complex. The legislative framework has been rewritten in recent years. The Charter issues are dense and fact-specific. The evidence is technical, often turning on the operation of the Approved Screening Device or the approved instrument and on the records kept by the qualified technician. Some files run on the SafeRoads track only, and some run on both the criminal and SafeRoads track at the same time, and each path needs its own strategy.
The impaired driving lawyers at Davidson Gregory have defended cases of every kind: first offences, over 80 cases, refusal cases, drug-impaired driving cases, SafeRoads-only files, and impaired driving causing bodily harm or death cases. The firm appears for clients across Alberta, including as an impaired driving lawyer in Edmonton, a DUI lawyer in Calgary, and impaired driving counsel in Red Deer, Fort McMurray, Grande Prairie, and St. Albert. The firm handles the SafeRoads side, the criminal side, or both, depending on what the file actually needs.
Davidson Gregory Understands Impaired Driving and Fights to Get Your Licence Back
Impaired driving charges in Alberta move fast. Whether you are looking for an impaired driving lawyer, a DUI lawyer, a drunk driving lawyer, or an over 80 lawyer, the issues are the same: the SafeRoads suspension starts at the roadside, the criminal court process begins within weeks, and bail conditions, disclosure timelines, and Ignition Interlock obligations all start running from the first appearance. If you are facing an impaired driving, drinking and driving, or refusal charge in Alberta, contact our experienced impaired driving lawyers to represent you. We will protect your rights on both the SafeRoads side and the criminal side of the file, and fight to get your licence back.
Our experienced impaired driving and DUI lawyers guide you through the criminal process and the SafeRoads process and have represented people from all across Alberta, including Fort McMurray, Edmonton, Calgary, Grande Prairie, Red Deer, St. Albert, and southern Alberta. Contact us today to fight for your licence and a clean criminal record.
This article is general legal information only. It is not legal advice. Reading this article does not create a lawyer-client relationship with Davidson Gregory.