Criminal Law
DUI Charge in Ontario: Penalties, Licence Suspension and Your Rights
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12 MINUTE READ
A DUI charge in Ontario sets two separate processes in motion at once: a criminal prosecution under the Criminal Code, and administrative consequences under the Highway Traffic Act that can take effect before any court date. This guide explains how the law treats impaired driving in Ontario, what penalties apply, and what rights you have, in plain language.
It is general information, not legal advice. Every case turns on its own facts, so speak with a lawyer about your own situation. For immigration consequences, see our article on DUI and immigration status.
Key takeaways
- A DUI charge can involve two different criminal offences (impaired operation, and blood alcohol concentration of 80 mg per 100 mL or more within two hours of driving) plus a separate refusal offence.
- The criminal penalties include a mandatory minimum fine on a first offence, a lawful driving prohibition, and, for the repeat offender, minimum custody.
- Ontario can also suspend your licence for 90 days and impound your vehicle for 7 days as administrative measures, which are separate from the court case.
- Charter rights (to counsel, against unreasonable search, and to a trial within a reasonable time) may be relevant, but each depends on the specific facts.
- A conviction can carry serious immigration consequences for permanent residents and foreign nationals.
Table of contents
- The offences: impaired operation, over 80 and refusal
- Penalties on conviction
- Ontario licence suspension and vehicle impoundment
- Police stops, roadside screening and breath samples
- Charter rights that can matter
- Why a discharge is rarely available
- Immigration consequences for non-citizens
- What to do after being charged
- Frequently asked questions
- Book a consultation
The offences: impaired operation, over 80 and refusal
The Criminal Code, R.S.C. 1985, c. C-46, creates the alcohol-related driving offences in ss. 320.14 and 320.15. Under s. 320.14(1)(a), it is an offence to operate a conveyance while your ability to do so is impaired to any degree by alcohol, a drug, or a combination of the two. Under s. 320.14(1)(b), it is an offence to have a blood alcohol concentration of 80 mg of alcohol in 100 mL of blood or more within two hours after ceasing to operate a conveyance, subject to the exceptions in the section, such as the post-driving consumption exception in s. 320.14(5).
A separate offence is created by s. 320.15(1): knowingly failing or refusing, without reasonable excuse, to comply with a screening or breath-sample demand made under s. 320.27 or s. 320.28. Refusing to provide a sample is therefore not a way of avoiding a charge; it can result in its own conviction and its own mandatory minimum fine.
Penalties on conviction
Section 320.19 sets the penalties. On the indictable route the maximum imprisonment is 10 years. On the summary route the maximum is a fine of $5,000, imprisonment for up to two years less a day, or both.
Minimum penalties apply to a conviction. For a first offence the minimum is a $1,000 fine. Higher blood alcohol readings raise it for a first over-80 offence: $1,500 where the reading is at least 120 but below 160 mg per 100 mL, and $2,000 where it is 160 mg or more. A first refusal conviction carries a minimum $2,000 fine. For a second offence the minimum is 30 days of imprisonment, and for each subsequent offence it is 120 days. A court must also impose a driving prohibition on conviction (ss. 320.24(1) and (2)).
Ontario licence suspension and vehicle impoundment
Ontario administrative measures sit alongside the criminal case. Under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8, a driver whose breath or blood analysis shows 80 mg per 100 mL or more, or who fails or refuses specified demands, faces an immediate 90-day licence suspension. The Act says there is no right to be heard before the suspension takes effect, and its appeal grounds are limited. Section 48.4 requires the vehicle to be impounded for seven days, at the owner’s cost and risk.
Those measures do not decide guilt; they are triggered by the circumstances at the roadside. For novice drivers, s. 44.1 of the Act makes a zero blood alcohol concentration a condition of the licence.
Police stops, roadside screening and breath samples
Police may stop a driver under s. 48(1) of the Highway Traffic Act to check licence, insurance and sobriety. In R. v. McColman, 2023 SCC 8, the Supreme Court of Canada explained that the officer must at least signal or otherwise request that the driver stop on a highway.
Section 320.27(2) allows an officer who has an approved screening device to demand a roadside breath sample even without a suspicion that you have been drinking (mandatory alcohol screening). A single-judge Ontario Court of Justice decision, R. v. Blysniuk, 2020 ONCJ 603, upheld s. 320.27(2), but it is a single-judge decision and the authorities we reviewed did not identify a higher-court ruling directly on the point. Whether a particular stop, demand or sample was lawful remains fact-specific. Evidentiary breath samples are governed by s. 320.28.
Charter rights that can matter
Right to counsel. Section 10(b) of the Charter applies from the moment of detention, and police must inform you of it without delay (R. v. Suberu, 2009 SCC 33). During the brief roadside screening, the Supreme Court has held the limit on access to counsel justified, but a motorist held for an evidentiary breath or blood sample is entitled to the full protection of the right (R. v. Orbanski; R. v. Elias, 2005 SCC 37).
Unreasonable search. A breath sample engages s. 8 of the Charter (R. v. Alex, 2017 SCC 37). Where a sample was taken unlawfully, a court may consider whether to exclude evidence under s. 24(2).
Delay. Under R. v. Jordan, 2016 SCC 27, the presumptive ceiling is 18 months for cases going to trial in the provincial court and 30 months for superior court trials. These are presumptive ceilings, not automatic dismissal dates: defence delay is deducted and the Crown may rely on exceptional circumstances.
Why a discharge is rarely available
Section 730(1) of the Criminal Code does not allow a discharge for offences with a prescribed minimum punishment. Section 320.23(2) also says that, even after successful completion of an approved treatment program, the court shall not direct a discharge under s. 730. Courts have addressed these limits case by case; see R. v. Cheema, 2022 ONCJ 364, and R. v. Piccin, 2025 ONCJ 261, on conditional discharges and the mandatory minimum fine.
Immigration consequences for non-citizens
A conviction can lead to inadmissibility on grounds of criminality under the Immigration and Refugee Protection Act (IRPA). For a foreign national, the hybrid nature of the offence matters: a conviction of an offence that may be prosecuted summarily or by indictment is treated as indictable for IRPA purposes (s. 36(3)(a)). Serious criminality under s. 36(1)(a) applies to an offence punishable by at least 10 years or one for which more than six months’ imprisonment was imposed; because the indictable form of impaired driving carries a 10-year maximum, it can engage that ground. A conviction can also engage s. 36(2)(a) for foreign nationals.
These grounds depend on a conviction; a charge alone is not the ground. The Ministerial relief provision in s. 42.1 does not list s. 36 criminality, and the criminal rehabilitation rule in s. 36(3)(c) is limited to foreign-conviction grounds. A record suspension under s. 36(3)(b) can prevent a conviction from being a ground of inadmissibility. For the interaction of a conviction with status, see our DUI and immigration article and our guide to record suspensions. Courts may consider immigration consequences at sentencing, but the sentence must remain proportionate (R. v. Pham, 2013 SCC 15).
What to do after being charged
This is general information only. In practice, people charged with impaired driving commonly keep every document from the roadside and the police station, note the dates of the licence suspension and the first court appearance, avoid discussing the facts with anyone other than counsel, and obtain legal advice early. A lawyer can review the grounds for the stop and the demand, the breath-testing procedure, and the disclosure, and explain the options in your specific case. For a general overview, see our article on impaired driving charges.
Frequently asked questions
What are the main DUI offences in Canada?
Under s. 320.14 of the Criminal Code, the two main offences are operating a conveyance while impaired to any degree by alcohol or a drug, and having a blood alcohol concentration of 80 mg per 100 mL or more within two hours after ceasing to operate. Section 320.15 separately makes it an offence to fail or refuse, without reasonable excuse, to comply with a screening or breath-sample demand.
What is the minimum penalty for a first DUI offence?
The minimum is a $1,000 fine for a first offence. For a first over-80 offence the minimum rises to $1,500 where the reading is at least 120 but below 160 mg per 100 mL, and to $2,000 where it is 160 mg or more. A first refusal conviction has a $2,000 minimum fine.
Can I lose my licence before I am convicted?
Yes. Under s. 48.3 of the Highway Traffic Act, a 90-day administrative licence suspension applies in specified circumstances, such as an analysis of 80 mg per 100 mL or more, or failing or refusing certain demands. The Act says there is no right to be heard before it takes effect, and the appeal grounds are limited.
Will my vehicle be impounded?
Section 48.4 of the Highway Traffic Act requires the vehicle to be impounded for seven days from the time it was detained, at the cost and risk of its owner.
Can police demand a roadside breath test without suspicion?
Section 320.27(2) of the Criminal Code permits mandatory alcohol screening by an officer who has an approved screening device and is acting in the lawful exercise of police powers. The stop itself must still be lawful. In R. v. McColman, 2023 SCC 8, the Supreme Court explained that the officer must at least signal or request that the driver stop under s. 48(1) of the Highway Traffic Act.
Is it an offence to refuse a breath sample?
Yes. Section 320.15(1) makes it an offence to knowingly fail or refuse, without reasonable excuse, to comply with a demand under s. 320.27 or s. 320.28. A refusal conviction carries its own mandatory minimum fine of $2,000 on a first offence.
Do I have the right to speak to a lawyer?
Section 10(b) of the Charter applies from the moment of detention. The Supreme Court has held that the limit on counsel during the brief roadside screening is justified, but a person held for an evidentiary breath or blood sample is entitled to the full protection of the right (R. v. Orbanski; R. v. Elias, 2005 SCC 37).
Can the charge be stayed because of delay?
Under R. v. Jordan, 2016 SCC 27, delay beyond 18 months (provincial court) or 30 months (superior court) is presumptively unreasonable, but defence delay is deducted and the Crown may rely on exceptional circumstances. It is a presumption, not an automatic dismissal.
Can I get a conditional discharge for a DUI?
Generally no. Section 730(1) of the Criminal Code excludes offences with a prescribed minimum punishment, and s. 320.23(2) says a court shall not direct a discharge under s. 730 even after an approved treatment program is completed.
Can a DUI conviction affect my immigration status?
Potentially yes. A conviction can lead to inadmissibility on grounds of criminality under IRPA s. 36. Because the indictable form of impaired driving carries a 10-year maximum, it can engage serious criminality under s. 36(1)(a), and for foreign nationals s. 36(2)(a). A charge alone is not the ground. Speak with a lawyer about your own status.
Are the 90-day licence suspension and the criminal charge the same thing?
No. The administrative suspension and the vehicle impoundment under the Highway Traffic Act are separate from the criminal prosecution. They apply at the roadside based on the circumstances, and they do not themselves establish guilt of a Criminal Code offence, which is decided by the court.
Book a consultation
If you have been charged with an impaired driving offence in Ontario, Pax Law Corporation is a general practice with offices in North Vancouver and Toronto. You can book a consultation with either office.
- Vancouver office: Book a consultation in Vancouver — 215-1433 Lonsdale Avenue, North Vancouver, BC V7M 2H9 — +1 604-767-9529
- Toronto office: Book a consultation in Toronto — 10th Floor, 4711 Yonge Street, Toronto, ON M2N 6K8 — +1 416-447-4862
This article is for general information only and is not legal advice. The law, including its application to a particular case, depends on the facts and the jurisdiction. Please consult a lawyer before making decisions.
This article is for general information only and is not legal advice. The law can change and every case is different. Reading it does not create a lawyer–client relationship. For advice about your own situation, please book a consultation with a lawyer.
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