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Will I Have to Serve Jail Time for My DUI in Ontario

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When people charged with DUI (driving under the influence) offences in Ontario consult with our Toronto-area criminal lawyers, they typically want to know if they will have to serve jail time if convicted. We wish we could respond by saying “no,” but Canada’s Criminal Code allows for a maximum 10-year imprisonment term even for first-time DUI offences with no aggravating factors. That said, we can report that most people convicted of a first-time DUI do not serve any jail or prison time, and there is no mandatory minimum imprisonment penalty for a first-time DUI. However, subsequent DUI offences carry mandatory jail terms, and aggravating factors increase the likelihood of imprisonment with any DUI. Read on to learn more about DUI sentencing guidelines and potential imprisonment terms for DUI-related violations.

DUI Sentencing Basics

DUI charges and sentencing guidelines upon conviction fall under the purview of both federal and provincial law. Canada’s Criminal Code defines the laws and dictates monetary fines, driving prohibitions, and possible imprisonment penalties, while provincial law sets out other penalties, including:

  • License suspension
  • Vehicle impoundment
  • Education and treatment programs
  • Ignition interlock requirements
  • Additional provincial fines

Federal penalties are the same for all basic-level DUI categories, which include impaired driving (based on physical evidence and police observations), over 80-plus blood alcohol concentrations, refusing to provide a breath or blood sample, and care and control. Other DUI categories, which typically carry much more severe penalties, include DUI causing bodily harm and DUI causing death. Police sometimes charge impaired driver suspects with more than one of the DUI offences , such as combining impaired driving with refusing to provide a breath sample. However, this does not lead to multiple sentences for the same DUI. Impaired driving charges can also be combined with other offences, such as DUI and hit and run or DUI and leaving the scene of an accident. This, it should be noted, can result in multiple sentences.

With the exception of DUI causing death, DUI charges can be tried as either a summary conviction offence or the more severe indictable offence. While most DUI cases are tried as a summary conviction offence, Crown prosecutors are more likely to consider bringing the charges as an indictable offence when there are aggravating factors. DUI causing death is always tried as an indictable offence.

Potential Jail Time for a First-Time DUI

Section 320.19 (1) lays out the federal penalties for the basic DUI categories. As a first-time offence on summary conviction, the maximum penalty is $5,000 or a jail term of not more than “two years less a day,” or both. As previously noted, the maximum sentence for an indictable offence conviction for any basic DUI is 10 years imprisonment. The minimum penalty for a first-time DUI under either conviction is a $1,000 fine. Most first-time DUI offenders receive the minimum penalty unless there are aggravating factors.

Section 320.22 of the Code sets out aggravating factors that judges should refer to for sentencing purposes in all DUI cases. These factors are:

  • The offender was operating the motor vehicle while impaired during a race of speed contest with at least one other motor vehicle.
  • A person under the age of 16 years was a passenger in the vehicle.
  • The offender was being paid to operate the vehicle.
  • The offender’s BAC was equal to or exceeded 120 mg of alcohol in 100 mL of blood.
  • The offender was operating a large motor vehicle.
  • The offender was not permitted by federal or provincial law to operate the vehicle.
  • More than one person was physically harmed or killed during the commission of the DUI offence (for use in DUI cases involving death or injury).

Judges are also allowed to consider any other potentially aggravating conditions at their discretion. Such aggravating decisions can definitely inspire a judge to add jail time to a first-time DUI offender’s sentence and, if especially aggravating, convince the Crown to seek conviction as an indictable offence with its more severe imprisonment potential.

Jail Terms for Subsequent DUI Convictions

Whether tried as a summary conviction or indictable offence, the maximum penalties are the same as they are for a first-time DUI or subsequent DUI—that is, two years less a day in jail or 10 years imprisonment. Minimum mandatory jail sentences are the same, whether summary or indictable conviction. Second-time DUI offenders receive a mandatory minimum 30 days in jail, while all subsequent DUI convictions carry a mandatory minimum of 120 days in jail. It should be noted that judges typically do not grant the mandatory minimum sentence to defendants with multiple DUIs.

Potential Imprisonment for DUIs Causing Injury or Death

Whether tried as and summary or indictable conviction offence, sentencing guidelines for DUIs causing bodily harm have the same mandatory minimums as the guidelines for basic DUI. However, conviction as an indictable offence carries a maximum penalty of 14 years in prison.

Even though DUI causing death is tried solely as an indictable offence, the mandatory minimum sentences are the same as they are for basic DUI. That said, it is doubtful that a judge would sentence a first-time DUI-causing-death offender to the mandatory minimum $1,000 fine. With a maximum sentence of life in prison, judges have significant leeway in coming up with what they believe would be an appropriate sentence in such cases. Any aggravating circumstances would almost certainly play an essential role in their sentencing decision.

Exceptions to Mandatory Minimum Punishment

Section 320.23 (1) of the Code allows the court to delay the sentencing of a convicted DUI offender to enable them to attend a treatment program. Successful completion of the treatment program gives the judge authority to ignore mandatory minimum sentence guidelines. This helps many DUI offenders avoid jail time that the judge would otherwise be mandated to sentence.

Turn to Mass Tsang for your Ontario DUI Defence Needs

The criminal trial lawyers at Mass Tsang are dedicated to seeking the best possible outcome for those charged with DUI in Ontario. Mass Tsang lawyers have successfully defended thousands of Toronto-area DUI cases and have a stellar record securing favorable results for their clients.

If you or someone you know is facing DUI charges in the greater Toronto area, the expert criminal lawyers at Mass Tsang today for a free consultation.



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