Defending Drinking & Driving Cases
By Hans 'John' Kalina | Originally published November 19, 2016 | Historical commentary reviewed October 7, 2026
This article began as commentary on Canada's pre-2018 drinking-and-driving laws. It is retained as a historical reference, not as a statement of today's offences, penalties or roadside procedures. For the current guide, read Defending Against DUI Charges.
What the original commentary addressed
The 2016 article focused on the legality of police demands, the timing and reliability of breath testing, access to counsel and whether evidence could be used at trial. Those subjects remain important, but later legislation changed the statutory framework. References to former sections 253–259 and their penalty ranges should not be used to assess a current charge.
The present framework is different
Current alcohol-related offences include impaired operation and operating with a prohibited blood-alcohol concentration within the statutory period, subject to the applicable exceptions. They are distinct offences: a prohibited-concentration charge does not require proof of visible impairment. See section 320.14 of the Criminal Code.
Section 320.27 now includes mandatory alcohol screening where an officer has an approved screening device and lawfully exercises the relevant stopping power. The old assumption that every roadside breath demand requires individualized suspicion is not current law.
An alleged breach is not an automatic acquittal
Delay, a defective demand or a breach of counsel rights must be evaluated against the applicable law and evidence. Evidence is not automatically excluded whenever a Charter breach is alleged or established. The court must address the appropriate remedy. The prosecution bears the burden of proving the offence beyond a reasonable doubt; particular defence applications may have their own evidentiary requirements.
Obtain advice promptly and preserve the chronology, documents and recordings. Do not treat historical commentary as advice to refuse a lawful demand.
Related guidance
For advice about your circumstances, contact our office. General information only, not legal advice.