Drinking and Driving
This page gives legal information only, not legal advice.
Q - What might I be charged with if I drink and drive?
The most common drinking and driving offences are:
- 'Impaired driving': driving while you are impaired by alcohol and/or drugs, including prescription or illegal drugs;
- ‘Driving ‘over .08’ or ‘over 80’: Driving with a blood alcohol level that is more than 80 milligrams in 100 millilitres of blood;
- ‘Refusal’: Failure or refusal to do physical sobriety tests or give a breath or blood sample when asked, without a reasonable excuse.
These are all crimes under the Criminal Code of Canada. You can be charged with any of these offences if you operate or have ‘care or control’ of a car, truck, boat, snowmobile, ATV, aircraft or other vehicle or vessel while impaired, or with a blood alcohol level over the legal limit. You may be charged even if you are not driving the vehicle, but it is in your ‘care or control’. The vehicle does not have to be moving. For example, you may have care or control if you are in the front seat with the car keys in your pocket, but the vehicle is parked and the ignition is off.
Q - What are the police allowed to do if they stop my vehicle?
If your vehicle is stopped by a police officer, the officer will usually ask to see your driver’s license and insurance. You must provide your license and insurance.
The officer may ask you questions like ‘Have you had anything to drink?’ or ‘When did you have your last drink?’ You are not legally required to answer the officer’s questions. You may politely refuse to answer.
Physical sobriety tests and roadside breath test:
If the police officer reasonably suspects that you have alcohol in your body and have driven or had care or control of a vehicle within the past 3 hours, the officer may demand:
- that you do some physical sobriety tests to assess your coordination, such as walking heel-to-toe or standing on one leg; and/or
- that you take a roadside breath test by blowing into a machine called an approved screening device (ASD).
If the police demand it, you must do the physical sobriety tests and/or take the breath test; otherwise, you may be charged with refusal (section 254(5) of the Criminal Code).
For physical sobriety tests or a roadside breath test the police do not have to tell you that you have a Charter right to contact a lawyer, and they do not have to wait until you speak with a lawyer before requiring you to take the test(s).
The roadside breath test will show a ‘pass’, ‘warn’ or ‘fail’. If the roadside breath test shows ‘warn’ or ‘fail’, the police officer will probably demand that you take the breathalyzer test.
If the police officer has good reason to believe ("reasonable grounds to believe") that you committed a drunk driving offence within the past 3 hours, such as after you took a roadside test, the officer can demand that you take a breathalyzer test off site. If a police officer demands that you take a breathalyzer test you must go with the police officer to take the test, usually to the police station. You are generally required to give at least two breath samples, spaced at least 15 minutes apart. You must give as deep a breath sample as the technician requires.
If you are asked to take a breathalyzer test the officer must tell you that you have a right to speak with a lawyer and must give you a reasonable chance to contact a lawyer before taking the test. These are your rights under the Charter. You should be given a chance to speak with a lawyer in private. Legal Aid Duty Counsel is available 24 hours a day, 7 days a week for people who have been arrested or detained by the police. It is free to talk with Legal Aid Duty Counsel. However, if you have a particular private lawyer that you would like to contact, you are entitled to request a lawyer by name.
The breathalyzer test measures your blood alcohol level. After you take the breathalyzer test the technician will give you a certificate with your test results. You should give this certificate to your lawyer.
If your breathalyzer results show that your blood alcohol level is over .08 you will be charged with over .08 (section 253(b) of the Criminal Code), and you may also be charged with operating a motor vehicle while impaired ('impaired driving' - section 253(a) of the Criminal Code).
Q - Can the police take a blood sample?
You might have to give a blood sample if the police officer has good reason ('reasonable grounds') to believe that you committed a drunk driving offence within the past 3 hours, and:
- you are physically unable to give a breath sample, or
- it is not practical for you to give a breath sample because of the circumstances.
Blood samples may only be taken by, or under the supervision of, a qualified medical professional who can verify that taking blood will not put your health or safety at risk.
Q - What if I refuse to take the breathalyzer test?
If you refuse the breathalyzer test you could be charged with the offence of ‘refusal’ or ’refusal to blow’.
The general rule is that you must take the breathalyzer test unless you have a reasonable excuse for refusing. It is not a reasonable excuse to say, for example, that you don’t think you are drunk or that you don’t think the police officer saw you driving. The law on this issue is very complicated. If a police officer demands that you take a breathalyzer test the best thing to do is use your right to speak with a lawyer, and take the lawyer’s advice.
Penalties for being convicted of a refusal to blow are the same as the penalties for impaired driving or driving with a blood alcohol level that is over .08.
Q - What are the penalties if I am convicted of impaired driving, driving with a blood alcohol level over the legal limit, or refusal?
- First offence: fine of at least $1000, possibly up to $2000. Mandatory minimum driving prohibition: 1 year from the date of conviction, and possibly up to 3 years.
- Second offence: minimum 30 days in jail. Mandatory minimum driving prohibition: 2 years from the date of conviction, and possibly up to 5 years.
- Third or subsequent offence: minimum 120 days in jail. Mandatory minimum driving prohibition: 3 years from the date of conviction, and possibly for life.
In some cases a person may be allowed to drive during the driving prohibition period if they participate in an Alcohol Ignition Interlock Program.
The maximum jail term for these offences ranges from 18 months for a summary, or less serious offence, to 5 years for an indictable, or more serious offence. The Crown prosecutor decides whether to process the charge as a summary or indictable offence. If you are convicted of any of these offences you will also have a criminal record.
In addition, you may find it difficult to get insurance coverage and you can expect to pay very high insurance rates.
Q - Will I lose my driver’s license?
Roadside license suspension:
You may have your license suspended even if your blood alcohol level is .08 or less. If you get a 'warn' on your roadside screening test, or if your breathalyzer test shows a blood alcohol level between .05 and .08 (50 to 80 mg of alcohol in 100 mL of blood), you may have your driver's license suspended immediately.
Roadside license suspensions under Nova Scotia’s Motor Vehicle Act are:
- 7 days for a first suspension within 10 years;
- 15 days for a second suspension within 10 years;
- 30 days for a third or subsequent suspension within 10 years.
3 month (90 day) administrative suspension:
If you take the breathalyzer and your test results show that you are over .08, or you refuse to take the breathalyzer, then, in addition to being charged criminally, your driver's license will be suspended for 3 months starting 7 days after the incident. The police officer will give you a temporary 7 day driver's license, and when that runs out your driver's license will be suspended for the following 3 months.
You can apply to the Registrar of Motor Vehicles through Access Nova Scotia to have this administrative suspension reviewed. To do this you must file an application for review, pay the required fee, and, if you haven’t already done so, hand-in your driver's license. If you want an oral hearing, you must ask for one.
After you file for a review and pay the fee, the review generally happens within 10 days for a review of written evidence, or within 20 days for an oral hearing.
Applying for a review does not stay (lift) the suspension of your driver's license.
If your appeal to the Registrar of Motor Vehicles is not successful, you can appeal the Registrar's decision to the Motor Vehicle Appeal Board. You can contact the Motor Vehicle Appeal Board at:
Telephone: (902) 424-4256 or 1-855-424-4256
Address: Motor Vehicle Appeal Board, Maritime Centre, 9 North, 1550 Barrington Street, Halifax NS B3J 3K5
The administrative suspension under the Motor Vehicle Act is in addition to any period of driving prohibition imposed by the criminal court if you are convicted of drinking and driving.
Criminal Code driving prohibitions:
If you are convicted of impaired driving, driving over .08, or refusal, you will be prohibited from driving for:
- First offence: 1 year from the conviction date, possibly up to 3 years. If you participate in the ignition interlock program, you may drive again after 3 months' suspension
- Second offence: 2 years from the conviction date, possibly up to 5 years. If you participate in the ignition interlock program, you may drive again after 6 months' suspension
- Third or subsequent offence: 3 years from the conviction date, possibly for life. For a third offence only - if you participate in the ignition interlock program, you may drive again after 12 months' suspension.
Violations of Criminal Code driving prohibitions are a criminal offence. Penalties include fines, probation, and jail for up to 5 years.
The Registrar of Motor Vehicles may revoke a driver’s license for a longer period than the one imposed by the criminal court. Generally the Registrar of Motor Vehicles will revoke a driver’s license for 1 year for a first offence, 3 years for a second offence, 10 years for a third offence, and permanently for a fourth offence. If you are convicted of impaired driving or driving over .08 and you had a child under 16 in your car when the crime happened, the Registrar of Motor Vehicles will revoke your license for an extra year (for example, at least 2 years for a first offence), and participation in the Alcohol Ignition Interlock Program will be mandatory.
Q - Is the Alcohol Ignition Interlock Program available in Nova Scotia?
Yes. The Alcohol Ignition Interlock Program allows you to drive during the mandatory driving prohibition period, as long as you meet all program conditions and are driving a vehicle in which an ignition interlock device has been installed.
The program is optional for most low and medium risk first-time impaired drivers, but mandatory for:
- those convicted of impaired driving who had a child under 16 in the car when the offence happened; and
- repeat and high risk impaired drivers; and
- those convicted of impaired driving causing bodily harm or death.
To get back on the road repeat and high-risk impaired drivers must have an interlock ignition device installed in their vehicle, and must complete alcohol rehabilitation counselling and education. Program participants must have an interlock device fitted to their vehicle’s ignition. The driver blows into the device, which measures blood alcohol levels. The vehicle will not start if the driver’s blood-alcohol reading is above .02 mg of alcohol per 100 mL of blood. The driver must also periodically provide breath samples while the vehicle is running. Information recorded on the interlock device must be downloaded every 60 days, and is used in deciding whether the person should stay in the program.
The alcohol rehabilitation component of the program is operated by Addiction Services. It involves an alcohol or drug use evaluation, completion of the Driving While Impaired education program, a risk assessment, and counselling sessions. Participants pay about $1700 to $2000 for their first year in the program, in addition to about $400 for Addiction Services . This does not include other costs associated with alcohol-related convictions, such as legal fees, court fines, increased insurance premiums, and a license reinstatement fee.
Click here for more information about the Alcohol Ignition Interlock Program, or call Service Nova Scotia at (902) 424-5851 or 1 800 898-7668, or visit www.interlock.gov.ns.ca
January 2012, updated November 2012 and May 2013