Injured by a drunk driver—how does it impact my claim?

Impaired driving in Canada is an issue that has injured or killed thousands of Canadians. In Atlantic Canada, there were 3,743 federal impaired driving charges laid in 2020, according to a MADD report. While this statistic relates to the volume of criminal impaired driving charges laid, being injured by an impaired driver may have an impact on your personal injury claim.

What counts as impaired driving?

Impaired driving is the operation of an automobile while under the influence of drugs, alcohol, or a combination of both. There are different measurements for what constitutes impaired driving based on the substance. These are set at the federal level.

For alcohol, the prohibited blood-alcohol concentration (BAC) is 80 milligrams or more of alcohol per 100 millilitres (ml) of blood, or 0.08. This is determined at the federal level. Some provinces have legislation that begins penalizing impaired drivers if they blow more than 0.05.

For THC, there are two prohibited measurements: the primary psychoactive component of cannabis: it is a less severe offence to have between 2 nanograms (ng) and five ng of THC per ml of blood. It is a more serious offence to have five ng of THC or more per ml of blood.

The prohibited levels of alcohol and cannabis, when found together, are 50mg or more of alcohol per 100 ml of blood and 2.5 ng or more of THC per ml of blood.

Any amount of LSD, psilocybin, psilocin (“magic mushrooms”), ketamine, PCP, cocaine, methamphetamine or 6-mam (a metabolite of heroin) in your system within two hours of driving is also prohibited.

Even when a driver is below the legal limit, they may still be impaired and charged with impaired driving. It is important to follow the spirit rather than the letter of the law in this instance because even if a driver has a blood alcohol content of below 0.08%, they may still be impaired.

The Criminal Code states that a person is committing an offence when operating or in care and control of a motor vehicle while impaired by alcohol or drugs even though the blood alcohol level is less than 80 milligrams of alcohol in 100 millilitres of blood (.08 penalties can include fines, imprisonment or both and a prohibition of driving).

Police officers have the authority to:

• Stop vehicles to determine whether there is evidence to justify the demand for a breath sample under section 254 of the Criminal Code.
• Demand documentation from drivers such as driver’s licence, proof of insurance, and registration. Other documents may include mechanic’s report for motor vehicle inspection, carrier safety fitness certificate, or a bill of lading for commercial drivers.
• Demand submission to Standard Field Sobriety Testing. This procedure includes:
  1. horizontal gaze nystagmus test;
  2. walk-and-turn test; and
  3. one-leg stand test

This demand occurs when a peace officer has reasonable grounds to believe that a driver is impaired by alcohol/drugs. Refusal to submit to a Standard Field Sobriety Test would lead to a demand to take a breathalyzer test. If a peace officer has “reasonable and probable grounds” to suspect the presence of alcohol, the driver of a vehicle may be demanded to supply a sample of breath into an approved screening device or to accompany the peace officer to provide a breath sample for analysis (breathalyzer).

If the person is unable to provide a breath sample, the officer may demand that a qualified medical practitioner take a blood sample for analysis. Refusing to provide these samples is an offence.

Do penalties for impaired driving change from province to province?

Provinces are responsible for creating legislation surrounding their roads and highways, including how they handle impaired drivers.

What happens to impaired drivers in Nova Scotia

In Nova Scotia, licence suspensions will increase to seven days for a first suspension, 15 days for a second and 30 days for a third. Impaired drivers will also be required to pay a licence reinstatement fee of $91.42 each time a suspension occurs. Suppose they are convicted of driving with a BAC of over 0.08. In that case, they will be issued a minimum $1,000 fine, prohibited from driving in Canada for a minimum of one year, and their license will be revoked under NS law for a minimum of one year. They will be subject to license restoration requirements.

What happens to impaired drivers in New Brunswick?

In New Brunswick, all motorists under the age of 21 must maintain a 0% BAC. Drivers in New Brunswick who are found to have a blood alcohol concentration (BAC) between 0.05% and 0.08% milligrams are subject to a 7-day suspension of their driver’s licence. With a blood alcohol concentration exceeding 0.08%, a driver will be served with a 90-day administrative licence suspension. Failure to provide a sample will result in a 90-day suspension of their licence.

What happens to impaired drivers in Newfoundland and Labrador?

In Newfoundland and Labrador, a driver whose licence is suspended after an impaired driving conviction will be required to enter a mandatory ignition interlock program as a condition of reinstatement. Drivers less than 22 years of age will be required to maintain a blood alcohol content of zero per cent while driving. Any driver found to have a blood alcohol content of 0.08 or greater will have their vehicle impounded for a minimum of 30 days. Drivers who are 22 years of age or older who are found to have a blood alcohol content of 0.05 or greater but less than 0.08, will have their vehicle impounded for seven days. Novice drivers and drivers under 22 years of age will have their vehicle impounded for seven days if they are found to have a blood alcohol content greater than zero but less than 0.08.

What happens to impaired drivers in Prince Edward Island?

In Prince Edward Island, impaired drivers will have an immediate 24-hour roadside suspension of their licence and an administrative driving prohibition of 90 days effective seven days after their 24-hour roadside suspension. Their vehicle will be impounded for 30 days for a 1st or 2nd charge of impaired driving within ten years. If they have already received two or more impaired driving charges in the last ten years, their vehicle will be impounded for six months.

Is impaired driving a criminal or civil matter?

The determination of whether a driver was impaired and what penalty they should receive regarding their ability to drive is a criminal matter, as impaired driving is a violation of the Criminal Code. A civil matter may be brought to sue the impaired driver for injuries sustained by a person they hit.

It is important to note that while these matters are separate, they are parallel processes. This means that the outcome of the criminal matter—which may determine if they were impaired—may contribute to an injured party’s civil case.

How does being hit by a drunk driver impact my injury claim?

Being hit by an impaired driver can have an impact on your injury claim if the impaired driver was at fault and their impairment caused the injuries you sustained. There are four factors that are considered when determining if you have a negligence claim.

1. A duty of care is owed: A duty of care is a legal obligation to act reasonably and avoid harming others through your acts or omissions. When operating a motor vehicle, the duty of care is that all drivers will be held to the same standard in keeping themselves and others safe.
2. A breach of standard of care occurred: The standard of care can be determined by looking at the province’s Motor Vehicle Act or the Criminal Code. In the example of a collision involving an impaired driver, the impaired driver breached their duty of care to other motorists.
3. Causation: Causation requires that the actions (or inactions) of the at-fault party led to the injuries suffered by the other party.
4. Damages: Damages, or losses, financial or otherwise, must have resulted. Without damages, there is no personal injury claim. Damages may include loss of income, medical care costs, and general pain and suffering.

At MacGillivray Law, we help injury victims across Canada pursue justice and fair compensation for their injuries. If you’ve been injured in an accident caused by impaired driving, contact us today at 1-888-434-0398 for a free consultation.