Impaired Driving in Manitoba

June 3, 2020

Impaired driving laws have changed significantly in recent years. Ignorance is not an excuse in the eyes of the law. Knowledge, however, is power. That is why it is important to have an understanding of impaired driving laws in Manitoba and how they have changed.

Mandatory Screening for Alcohol

The police used to need reasonable suspicion to pull you over and demand a breath sample to see if you had been consuming alcohol. Thus, they had to suspect you had been consuming alcohol by noticing signs of impairment, such as smelling alcohol on your breath, before they could demand a sample. The police no longer require reasonable suspicion. They can simply ask you to provide a breath sample when they pull you over or, alternatively, find you in care and control of a vehicle where there was a risk of danger the vehicle would be set in motion. It is your choice whether or not you comply. However, refusing to comply with their request, without a reasonable excuse, results in an automatic criminal charge that carries with it both a fine of not less than $2,000 and a driving prohibition of not less than one year upon conviction.  

Alcohol Screening Device

An Approved Screening Device, or “ASD” for short, is the portable device police use to determine a driver’s sobriety.  ASDs may have potential problems, such as improper calibration. They issue one of three readings: “Pass,” “Warn,” or “Fail.” A “Warn” should occur if your blood alcohol content is 50-80 mg. of alcohol in 100 ml. of blood. A “Fail” should occur if your blood alcohol content is at, or over, 80 mg. of alcohol in 100 ml. of blood. Failing the ASD gives the police grounds to arrest you and request you take a breathalyzer test to determine the specific amount of alcohol in your blood. You have the right to call a lawyer after failing the ASD and getting arrested. 

No Mandatory Screening for Drugs

Whereas police no longer require reasonable suspicion to demand a breath sample from you, they do require reasonable suspicion that you have drugs in your body in order to take an oral drug sample from you with Approved Drug Screening Equipment (ADSE). Reasonable suspicion may arise from signs such as red eyes and abnormal speech. Like the ASD, the ADSE is administered before speaking with a lawyer. A positive result may lead to further police investigation and them demanding a blood sample from you to determine your blood drug concentration. You have the right to speak with a lawyer before providing a blood sample.

Other Tests

Other tests include Standardized Field Sobriety Tests (SFSTs) and Drug Recognition Expert Evaluations (DREs). The Standardized Field Sobriety Test consists of the police giving you various roadside sobriety tests. One such test involves seeing if you can walk heel-to-toe in a straight line. Drug Recognition Expert Evaluations encompass, among other things, police taking your blood pressure and pulse. Like the ASD and ADSE, the SFST gets administered prior to speaking with a lawyer. However, you have the right to speak with a lawyer before taking a DRE. Refusing to take an SFST or DRE, without a reasonable excuse, results in an automatic criminal charge. 

Prohibited Drug & Alcohol Levels

As mentioned, failing an ASD requires a blood alcohol level at, or above, 80 milligrams of alcohol in 100 millilitres of blood. That is because the prohibited level for blood alcohol is 80 mg. of alcohol, or higher, per 100 ml. of blood. There are two prohibited levels for the THC found in cannabis, the less serious of which is 2-5 nanograms of THC per millilitre of blood. 5 nanograms, or higher, per ml. of blood is more serious. Bear in mind, that it is not always a case of either drug or alcohol impairment; one can also be impaired by a combination of drugs and alcohol. The combined prohibited level is 50 mg. of alcohol per 100 ml. of blood, or higher, and 2.5 ng. of THC per ml. of blood, or higher. Some drugs, such as methamphetamine, cocaine, and LSD are prohibited when detected in any amount in your system within two hours of driving.

“Within Two Hours”

Another significant change to our impaired driving laws is that you can now get arrested for being at, or over, 80 within two hours after driving. One result of this controversial change is it has eradicated “The Bolus Defence.” That defence allowed people charged with impaired driving to argue they had consumed alcohol just before driving and that they were not over the legal limit while driving because the alcohol had not been fully absorbed. They could argue that they only reached an illegal blood alcohol concentration at the time of testing.

Penalties

Penalties for drinking and driving have become harsher.  For example, a first-time conviction once resulted in a fine of not less than $1,000. Changes resulted in increased minimum fines for higher blood alcohol concentrations. Thus, first-time convictions can now result in fines of not less than $1,500 for blood alcohol concentrations equal to, or exceeding, 120 mg. of alcohol in 100 ml. of blood and less than 160 mg./100ml. of blood., as well as fines of not less than $2,000 for levels equal to, or exceeding, 160 mg./100 ml. of blood. The Crown may ask for higher fines than the mandatory minimums. 

If you have been charged with an impaired driving offence, hiring a knowledgeable lawyer to defend you in court could prevent you from ending up with a criminal record, substantial fines, and a driving prohibition. Should you decide to plead guilty, hiring a lawyer might result in you receiving a more lenient sentence. Call Jason Malloy for a free consultation to get more information and discuss your options.

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Jason Malloy is an associate lawyer at the Theodore L. Mariash Law Office in Winnipeg, Manitoba, Canada.

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