Criminal Code s. 320.14 (1)(d): DUI charges for alcohol and cannabis combined driving

Driving while simultaneously drunk and high (cross faded) is specifically codified in CC s. 320.14 (1)(d) and its attached regulations.

While the police rarely criminally charge a person who blows under 80 (especially if no accident, injury, etc.), they still can and definitely are more likely to if they believe the person is cross faded by a combination of both alcohol and cannabis (or any other drugs).

For cases that involve a combination of alcohol and cannabis, there are provisions in the Criminal Code and its associated regulations that codify specific blood alcohol and THC levels as illegal. The charging provision is found in Section 320.14 (1)(d) of the Criminal Code which states:

320.14 (1) Everyone commits an offence who

(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.

What does “prescribed by regulation” mean?

In order to determine what the legal limits to are, this Criminal Code provision is combined with regulation #3 of the Blood Drug Concentration Regulations, which states:

Hybrid offence — combination of drugs and alcohol

3 For the purpose of paragraph 320.14(1)(d) of the Criminal Code, the prescribed blood alcohol concentration is 50 mg of alcohol per 100 mL of blood and the prescribed blood drug concentration for tetrahydrocannabinol (THC) is 2.5 ng of THC per mL of blood.

What this does is create a separate offence for those cross faded by alcohol and cannabis. While a person who blows between 50 - 80 is normally let go or given a warn range provincial fine (non criminal), if they also have 2.5 ng of THC per mL in their blood they will be charged criminally with impaired driving (DUI).

While driving while impaired (which is a subjective triable concept) remains illegal regardless of blood alcohol or THC levels, the government wanted to specifically criminalize driving with a combination of a low level of both alcohol and cannabis simultaneously. This practically guarantees that drivers who exceed these prescribed regulatory levels will be criminally charged.

Setting numeric levels of cross faded impairment in the law also reduces the need for the court to subjectively evaluate whether the accused’s behaviour was consistent with impairment. The charge and conviction can be made based on the blood concentration levels alone.

Don’t some chronic or daily cannabis users (particularly those who ingest edibles or oils) always have a low THC blood level even if they are not impaired?

You can have a blood THC level of 2.5 ng per mL and not actually feel any effects of cannabis. While the alcohol BAC level is very easily tested and determined, the blood THC level is less reliable and may not be indicative of actual impairment. For regular cannabis users, particularly those who consume edibles or oils, they may have a 2.5 blood THC/ng level long after the effects of cannabis have worn off.

When such a person is pulled over and blows under 80 after having a few drinks, if they admit to regularly using cannabis this may prompt the police (and give them reasonable grounds) to conduct blood testing for THC.

Defending cross faded DUI charges by challenging the Charter legality of maximum blood THC concentration levels.

Some lawyers have constitutionally challenged the legality of criminalizing specific blood THC impairment levels because they do not necessarily correlate with impairment; however the Ontario Court of Justice (OCJ) recently upheld these provisions in the 2022 case of R. v. Robertson. This decision, while very influential/important, is not binding on other OCJ courts and neither the Ontario Court of Appeal nor the Supreme Court of Canada has weighed in on this issue yet. As such, this remains a triable issue.

The accused should not volunteer information about cannabis use when pulled over for suspected impaired driving.

Similar to all criminal cases, the accused should not volunteer information about drug or alcohol use when being investigated by the police for impaired driving. They should also not have drug paraphernalia in plain view when pulled over as this will undoubtedly lead to questions about drug use and possibly give the police reasonable grounds to conduct more intrusive searches of the vehicle and to obtain blood samples to determine the driver’s THC levels.

When the police suspect a driver has been drinking they will conduct field sobriety tests and have them blow to see if they are over 80.

The first focus of the investigation will usually be on alcohol consumption. If the police become aware that the driver is a marijuana user they may allege that the person is impaired via the combination of both alcohol and cannabis (despite blowing under the legal BAC limit).

If the driver’s blood test for THC is 2.5 ngs or over, they will be charged under CC s. 320.14(1)(d) and s. 320.14(1)(a). If there is no blood test THC reading they may still be charged under CC s. 320.14(1)(a) with the police alleging they were still impaired despite being under 80 because of the cross faded marijuana effects. It is still illegal to drive while impaired by alcohol or drugs regardless of what the person’s blood alcohol or blood THC level is.

Cross faded DUI cases are sometimes highly defensible in court particularly if there is no THC blood test reading.

Don’t think that just because the police charged you (gave you a Form 10 Undertaking) that you will be found guilty when you go to court. A lot of cross faded DUI cases are able to be thrown out for a lack of evidence prior to the trial date so you should contact a criminal lawyer immediately to start working on your case.

Given that any DUI conviction in Canada is an automatic criminal record for first time offenders and jail time for those with priors the charges carry extremely serious, life altering guaranteed consequences if you are found guilty (convicted). Many people charged with DUI offences (cross faded or not) are able to avoid a conviction by hiring a lawyer to contest the charges in court.

All forms of impaired driving charges are time sensitive matters and you owe it to yourself to explore your options now before it is too late.


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