The criminal law charge of drunk driving involves operating a motor vehicle, while having the care or control over that vehicle, while one’s ability to operate that vehicle is impaired by alcohol, or a drug. If subsequently taken to a police detachment, a qualified technician will take samples of the Accused’s breath into a breathalyzer machine (in order to determine the level of milligrams of alcohol, per 100 milliliters of blood).
The charge of over .08 is usually added if the Accused’s breath sample registers over the legal allowable limit of .08.
A charge of refusal will result if the Accused refuses to either provide a sample of their breath at roadside (into an Approved Screening Device), or refuses to provide a sample of their breath at the police detachment into the breathalyzer machine.
Charges of drunk driving / impaired driving / over .08 / DUI / DWI / and refusal are extremely technical and require police officers and breath technicians to obey strict rules and procedures, such that even if the police conduct the investigation properly, the roadside screening device and/or the breath machine can be wrong, and there are a variety of ways to challenge their accuracy, as well as one’s refusal. Police officers are also required to satisfy certain Canadian Charter of Rights and Liberties obligations to an Accused. Because of this, there are many defenses available to challenge the evidence – resulting in exclusion of the breath certificate.