Alcohol and prescription or OTC drug combination DUI charges in Canada

Combining even small amounts of alcohol with prescribed or OTC medications can render a person too impaired to legally drive.

The Criminal Code specifically prohibits impairment due to a combination of both alcohol and drugs (cross faded) in s. 320.14 (1)(a). The police will usually first suspect alcohol impairment which may be under 80 but form the opinion the accused is still impaired by a combination of alcohol and drugs (be it prescription, OTC, or cannabis). Similar to any other impaired driving case, the DRE and field sobriety tests will be conducted and performance evaluated.

If an accused foolishly admits to the police that they have taken medications in addition to drinking, this is used as evidence against them that they were impaired despite blowing under 80. Had the accused remained silent the police may have just let them go with a warn range provincial offence (if they blow between 50 - 80), but since they provided additional information thinking it was okay because the meds were prescribed by a Doctor or were bought over the counter, the police may form the opinion the drug combination was enough to constitute legal impairment and criminal charges.

The accused often talks themselves into being charged. Had the accused not said anything there would have been no evidence of drug use (only a low alcohol BAC).

A lot of accused will feel the need to explain why they may show signs of impairment even if they blow under 80 or in the warn range. Instead of talking themselves out of trouble they end up doing the exact opposite.

In the accused’s mind they were just following their doctor’s orders or taking something that is clearly not illegal to possess. They may also be a little more chatty than usual due to the low level of alcohol in their system. Since the police already suspect impairment, once the accused starts talking about their medications it provides evidence and reasonable cause to conduct more intrusive searches and/or lay DUI charges. Now the police can say that the driver may have blown under 80 but was still impaired due to the combination of alcohol and drugs.

Just because prescription and OTC drugs are not specifically listed in the Criminal Code's DUI laws does not make it legal to drive while impaired by them (or in combination with alcohol).

While the Criminal Code + Regulations clearly criminalize certain alcohol and THC BAC levels above a certain limit, and most street drugs at a 0 limit, blood concentration levels of other prescription/OTC drugs are not specifically defined. Just because they are not defined does not mean a person can legally drive while impaired by them. In alcohol/drug combination cases the question of whether the accused is guilty or innocent will depend on whether the court (judge) believes they were impaired while driving, which is subjective and not always obvious.

The police will press DUI charges and provide evidence (disclosure) saying the accused admitted to both drinking and taking certain medications. Their notes of the accused’s behaviour and video evidence of field sobriety tests will also be disclosed. It is then the job of the accused’s lawyer to prove in court that the accused was not impaired despite having some levels of both alcohol (under 80) and prescription/OTC drugs in their system when they were arrested.

How to beat alcohol/drug combination criminal charges: Being charged with an alcohol/drug combination DUI doesn’t mean you will be found guilty at trial.

In some alcohol and drug combination DUI cases the police may have no scientific evidence other than a positive but under 80 alcohol BAC test (not in itself illegal) and statements that meds were taken at some point. The court must examine the accused’s behaviour upon arrest. Just because a person performs poorly on field sobriety tests at the roadside and station does not necessarily mean they were impaired by alcohol and drugs. They may have been nervous, have other underlying medical conditions that impact motor skills, a language barrier, etc.

The subjective opinion of the police that the person was impaired is just that - an opinion. In many cases the bodycam, breath room, and booking room CCTV video footage contradicts what the officer’s wrote in their notes. The police may have exaggerated and/or wrongly documented the accused’s behaviour upon arrest. They also may have violated their constitutional Charter rights and obtained evidence in a legally contaminated way. Obtaining a conviction in drug impaired DUI cases in Canada is not nearly as straightforward as most people think.

Don’t think that just because you drank and took medication that you don’t have a good case even if you admitted to it.

Alcohol/drug combination cases are some of the most commonly litigated in Canadian courts because there are often many triable issues that can lead to an acquittal. This is if the case makes it to the trial stage as the Crown may agree to drop (withdraw) the charges if the accused’s lawyer presents them with the weaknesses in their case before the trial date.

In Ontario, Crown Attorney’s are guided by a policy that requires them to discontinue prosecution if there is no reasonable prospect of conviction (RPC). For this reason a lot of cases collapse before or on the accused’s trial date allowing them to walk free. When you are charged the best thing to do is to hire a lawyer immediately to start working on your case. It is in your best interest to have these issues identified and presented as soon as possible.


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