2nd DUI Offence in Canada

Last Updated: October 20, 2023

2nd DUI Offence in Canada

Driving under the influence (DUI), or impaired driving, offences are among the most common offences that the courts currently address.  The process for addressing second DUI offences is quite similar to a first DUI offence.  Nevertheless, facing a second DUI offence can be overwhelming.

To ease some of the stress resulting from your charges, here are some of the basics about 2nd DUI offences and punishments to help you get your defence started.

What is a 2nd DUI Offence?

A DUI offence can refer to a number of offences under section 320.14 of Criminal Code, including:

Impaired driving

Operation while impaired

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

Impaired driving causing bodily harm

Operation causing bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

Impaired driving causing death

Operation causing death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.

Failure to provide a breath sample

Failure or refusal to comply with demand

320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

These offences involve the consumption of alcohol, drugs or a combination of the two to the point that an individual’s ability to drive is compromised or over the legal limit.  If an individual has already been convicted of one of the above offences, a new DUI charge will be considered their 2nd DUI offence.

Penalties for 2nd DUI Offence

The mandatory minimum penalties increase for DUI offences if you have previous DUI convictions.  For a second DUI offence, individuals will receive the following:

  • Jail Time: Unlike with a first DUI offence, there is a mandatory minimum jail sentence of 30 days for individuals convicted of their second DUI offence.
  • Fine: There may be a mandatory minimum fine depending on the impaired driving offence and your level of blood alcohol concentration (if applicable).
  • Licence suspension: While the length of your suspension may vary across the country, every driver will receive a licence suspension for their second DUI offence.
  • Vehicle seizure and associated costs: Much like the licence suspension, the length of vehicle seizure and associated costs vary from province to province. Nevertheless, your vehicle will be seized at your expense for a second DUI offence.
  • Participation in remedial or educational courses: You will be required to participate in a remedial impaired driving course upon a second DUI conviction. Drivers are responsible for all of the costs associated with their program.
  • Participation in an Ignition Interlock Device program: Participation in an ignition interlock device program will be mandatory, although the length of your enrollment in the program will vary by province.
  • Criminal Record: Conviction of an offence under the Criminal Code will result in a criminal record.

Defences to 2nd DUI Offence

Much like a first DUI offence, there are several defences that can be used to beat your second DUI offence.  While it will ultimately depend on the facts of your case, there are several defences available for impaired driving charges.

Some of the most common defences include:

  • Disputing reasonable suspicion
  • Demonstrating you were not behind the wheel or in care and control of the vehicle
  • Submitting a Charter application

Disputing Reasonable Suspicion

Under section 320.27 of the Criminal Code, a police officer must have reasonable grounds to suspect that the individual is impaired and has been operating a vehicle within the preceding 3 hours. The officer may try to form reasonable suspicion by asking the driver some questions or observing the driver’s behaviour. If the officer has reasonable suspicion, they may demand further tests, such as a breath sample. If the officer did not have reasonable suspicion, there may be grounds to challenge the demand.

Lack of Evidence of You Behind the Wheel or in Care and Control of the Vehicle

The police may come upon the scene of an accident but not witness you behind the wheel of the vehicle. In this situation, the police may not be able to demonstrate that you were driving while impaired unless the police can collect some other evidence, such as statements from witnesses, that you were the driver of the crashed vehicle.

Even if the police cannot demonstrate that you drove while impaired, they might attempt to show that you were under the care and control of the vehicle while impaired. If this is the case, you might demonstrate that there was no realistic risk of danger to the public because the vehicle was inoperable.

Charter Application

Typically, your Charter rights kick in from the moment of your detention.  However, some of your Charter rights are suspended during impaired driving roadstops.  Nevertheless, one or more of the following Charter rights may have been violated:

  • Section 8: Right to be secure against unreasonable search and seizure
  • Section 9: Right not to be arbitrarily detained
  • Section 10(b): Right to counsel
  • Section 11(b): Right to be tried within a reasonable time

Section 10(b): Right to Counsel

In impaired driving cases, immediately upon arrest, the police must inform the individual of their right to counsel and allow them to exercise that right. If the police did any of the following, then you may be able to exclude any evidence that they collected during the course of the transaction:

  • Failure to Provide Rights: The police did not inform you of your right to counsel
  • Delay in Providing Rights: The police waited too long to inform you of your right to counsel.
  • Failure to Provide Opportunity to Exercise Rights: The police did not allow you to contact counsel.
  • Delay in Providing Opportunity to Exercise Rights: The police waited too long to allow you to contact counsel.

The police cannot use any statements you make against you at trial before they inform you of your rights. However, they may use your statements to form the reasonable suspicion necessary to demand roadside tests.

Section 11(b): Right to be Tried Within a Reasonable Time

Under section 11(b) of the Charter, any person charged with an offence has a right to be tried within a reasonable time. As a result, a stopwatch starts the moment charges are laid to the actual or anticipated end of the trial. If the entire process exceeds 18 months in provincial courts or 30 months in superior courts, you may be able to assert that your right to trial within a reasonable time has been compromised. If the Crown cannot account for the delays, the Crown will need to stay the charges (not prosecute the matter any further).

FAQs

Can you go to jail for a 2nd DUI Offence?

Yes.  Unlike with first DUI offences, there is a mandatory minimum jail sentence of 30 days for second DUI offences.  Thus, if convicted of your second DUI offence, the question will not be whether you serve jail time, but how long your sentence will be.

Can you beat a 2nd DUI Offence charge?

In short, yes.  While it will depend on the facts of your case, the best way to beat a 2nd DUI offence is with the help of an experienced lawyer.  A DUI lawyer can devise the best strategy for approaching your case and see it through from beginning to end.

An experienced DUI lawyer has knowledge of the local police service and Crown prosecutors.  The fact that you have a previous DUI conviction will not impede you from beating a second charge.  However, a DUI lawyer can assist in negotiating your case with the Crown and possibly secure a plea bargain to a lesser charge or get the charges dropped altogether.

To learn more about how we can beat your 2nd DUI offence, Book A Free Consultation today.

What is the most common sentence for a second DUI?

Every DUI case is unique and your sentence will depend on a variety of factors.  However, you will serve at least a 30-day term of imprisonment due to the national mandatory minimum.

Your sentence may be longer than 30 days if you have aggravating factors present.  The presence of any of the following factors under section 320.22 of the Criminal Code may make harsher punishment more likely:

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;

(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;

(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;

(d) the offender was being remunerated for operating the conveyance;

(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;

(f) the offender was operating a large motor vehicle; and

(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

The fact that you have been convicted of a previous DUI offence will also be considered an aggravating factor for sentencing.

How likely is jail time for a second DUI?

You will serve a mandatory minimum imprisonment of 30 days for a second DUI conviction.  However, if you waited in custody until the resolution of your case, you may be granted time served.  In that case, the time you spent in pre-trial detention is sufficient to cover the length of your imposed jail term, meaning you will serve no additional time in jail.

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