Most people know about the criminal offence of impaired driving under the Criminal Code, R.S.C., 1985, which is when a driver has a blood alcohol concentration (“BAC” or colloquially referred to as “blood alcohol level”) of 0.08 or greater or is impaired by drugs while operating a conveyance.
320.14(1) of Criminal Code, RSC 1985, c C-46
320.14(1) Operation while impaired
(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.
A restriction that is not as well known is the restriction under section 146 of The Traffic Safety Act, SS 2004, c T-18.1 which prevents individuals from driving with a BAC of 0.04 or greater. While this restriction does exist, the consequences are administrative in nature as opposed to criminal if your BAC is below 0.08. This article deals with consequences for people who drive with a BAC of 0.04 or greater but less than 0.08.
Section 146 of The Traffic Safety Act, SS 2004, c T-18.1
Roadside suspension – 40 milligrams of alcohol
146
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(2) A peace officer shall do the things set out in subsections (3) and (14) if the peace officer has reasonable grounds to believe that the driver, based on an analysis of a driver’s breath by means of an approved screening device, drove a motor vehicle while that driver’s venous blood contained not less than 40 milligrams of alcohol per 100 millilitres of blood.
(3) In the circumstances mentioned in subsection (2): (a) the peace officer shall immediately:
(i) suspend the driver from driving a motor vehicle;
(ii) if the driver is the holder of a driver’s licence or any other permit authorizing the driver to drive a motor vehicle, require the driver to immediately surrender his or her driver’s licence or permit; and
(iii) issue and serve a notice of suspension and a notice of immobilization or
impoundment on the driver; and
(b) on being required to do so pursuant to subclause (a)(ii), the driver shall immediately surrender his or her driver’s licence or permit to the peace officer.
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(14) If a peace officer suspends the driver’s licence of a driver pursuant to this section, the peace officer shall:
(a) keep a written record of the driver’s licence suspended by the peace officer; (b) if the suspension is not terminated pursuant to subsection (8), provide the driver whose driver’s licence is suspended with a written statement, in the prescribed form, of the time from which the suspension takes effect;
(c) if the driver surrenders his or her driver’s licence, give the driver a receipt for the driver’s licence; and
(d) promptly send the driver’s licence of the driver to the administrator.
Upon being caught driving with a BAC of 0.04, the law stipulates that a driver will have their license suspended. A record of the roadside suspension will be retained. The retention of a record of the roadside suspension is important because if a driver is subsequently issued another roadside suspension for BAC of 0.04 or higher within 10 years of a date of a previous issuance of a notice of suspension, they will, generally, experience progressive consequences.
Section 146 of The Traffic Safety Act, SS 2004, c T-18.1
Section 146
(4) If a driver is served with a notice of suspension and a notice of immobilization or impoundment pursuant to this section:
(a) subject to subsection (8), the driver is suspended from driving a motor vehicle:
(i) if the driver has not been subject to a previous designated notice in the 10 years preceding the date of the issuance of the notice of suspension, for a period of 3 consecutive days;
(ii) if the driver has been subject to 1 previous designated notice in the 10 years preceding the date of the issuance of the notice of suspension, for a period of 21 consecutive days; or
(iii) if the driver has been subject to 2 or more previous designated notices in the 10 years preceding the date of the issuance of the notice of suspension, for a period of 90 consecutive days; and
(b) the motor vehicle the driver was driving at the time he or she was served with the notice of immobilization or impoundment is, on service of the notice, immediately immobilized or impounded:
(i) if the driver has not been subject to a previous designated notice in the 10 years preceding the date of the issuance of the notice, for a period of 3 consecutive days;
(ii) if the driver has been subject to 1 previous designated notice in the 10 years preceding the date of the issuance of the notice, for a period of 7 consecutive days; or
(iii) if the driver has been subject to 2 or more previous designated notices in the 10 years preceding the date of the issuance of the notice, for a period of 14 consecutive days.
When being caught with a BAC of 0.04 or over but under 0.08, a first issuance results in a 3 day suspension, a second issuance within 10 years results in a 21 day suspension, and a third or subsequent suspension within 10 years results in a 90 day suspension. Notices of immobilization or impound have similar progressive discipline, with the notices of immobilization or impound resulting in 3 days immobilization or impound for a first notice, 7 days for a second notice, and 14 days for a third notice and subsequent notices.
Further consequences can be imposed under section 146(6)
Section 146(6) of The Traffic Safety Act, SS 2004, c T-18.1
(6) A driver shall, within 120 days after the date of the issuance of the notice of suspension and notice of immobilization or impoundment pursuant to this section:
(a) if the driver has not been subject to a previous designated notice in the 10 years preceding the date of the issuance of the notice, participate in any prescribed program required by the administrator;
(b) if the driver has been subject to 1 previous designated notice in the 10 years preceding the date of the issuance of the notice, participate in any prescribed program required by the administrator; or
(c) if the driver has been subject to 2 or more previous designated notices in the 10 years preceding the date of the issuance of the notice, complete an education or recovery program recommended by an addictions counsellor.
An individual who has been issued a designated notice can be required to partake in a prescribed program and, for a third or subsequent notice, addiction counselling can also be required. If a driver’s license is reinstated and the driver fails to complete the program or counselling within the 120 day period, this will result in a subsequent license suspension.
Section 146(8) prescribes for ways in which a notice of suspension and any immobilization or impound of the motor vehicle can be disputed.
Section 146(8) of The Traffic Safety Act, SS 2004, c T-18.1
146(8)
(8) If a driver is suspended from driving a motor vehicle pursuant to subsection (3), the notice of suspension and any immobilization or impoundment of the motor vehicle is terminated immediately if:
(a) the driver:
(i) immediately and voluntarily undergoes a test of a kind authorized to be given for that purpose by the minister that, in the opinion of the peace officer, indicates that the venous blood of the driver contains less than 40 milligrams of alcohol per 100 millilitres of blood; or
(ii) after the notice of suspension is issued but before the period of suspension has expired, obtains and produces to the peace officer a certificate from a duly qualified medical practitioner stating that, at the time the driver was suspended pursuant to subsection (3), the venous blood of the driver contained less than 40 milligrams of alcohol per 100 millilitres of blood; or
(b) the following circumstances apply: (i) for the purpose of showing the proportion of alcohol in the driver’s blood, the driver either:
(A) voluntarily attends immediately at a place designated by the peace officer and accompanies the peace officer to that place, if necessary, and undergoes a test using an approved screening device; or
(B) immediately provides a second breath sample into an approved screening device that is different from the approved screening device used for the test pursuant to subsection (2); and
(ii) the result of the test or breath sample mentioned in subclause (i) indicates that the venous blood of the driver contains less than 40 milligrams of alcohol per 100 millilitres of blood.
The Traffic Safety Act, SS 2004, c T-18.1, further imposes the requirement for a prescribed ignition interlock system to be installed and properly used for a license to be reinstated if a driver has been issued 2 or more previous designated notices in the previous 10 years, subject to sub-sections 10-12.
146(9)
Section 146(9) of The Traffic Safety Act, SS 2004, c T-18.1
(9) Notwithstanding subsections (4), (6) and (7), but subject to subsections (10) to (12), if a driver has been subject to 2 or more previous designated notices in the 10 years preceding the date of the issuance of the notice of suspension, the driver is eligible to have his or her driver’s licence reinstated only if the driver:
(a) does not drive a motor vehicle unless the vehicle is equipped with a prescribed ignition interlock device for a period of 1 year following enrolment in the ignition interlock program;
(b) participates in the prescribed ignition interlock program; and
(c) complies with any terms and conditions imposed by the administrator.
Additionally, according to SGI’s website a roadside suspension will result in 4 demerit points towards a drivers safe driver rating. To find out more about SGI’s demerit points, view my article about demerit points in Saskatchewan here.
Conclusion
Drivers in Saskatchewan can face consequences for driving with a blood alcohol level of 40 milligrams of alcohol per 100 milliliters of blood. This article refers to the consequences for those driving with a full drivers license who are not classified as new drivers, who have a BAC of less than 0.08, and who are not been driving with an individual under the age of 16 years old in the vehicle. Generally, having more than 1 notice of suspension, immobilization, and/or impound will result in progressive discipline.
Gelinas Limited Scope Legal Services offers traffic representation in Saskatchewan. Contact Gelinas Limited Scope Legal Services at 705 737 6451 or joseph@gelinaslegal.ca for a free, up to 30-minute, no obligation to retain, phone consultation. For information on the Limited Licensing Pilot (Law Society of Saskatchewan), which allows me to provide limited scope, non-lawyer, legal services, click here.
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