Drive Disqualified vs. Drive Under Suspension
Driving While Disqualified (“drive disqualified”) and Driving While Under Suspension (“drive suspended”) are closely related. Drive disqualified is more serious as it’s a criminal charge while drive suspended is a provincial offence (under the Highway Traffic Act in Ontario and similar legislation in other provinces).
Definition of Drive Disqualified
If you drive while you are prohibited from doing so due to having been found guilty of a Criminal Code driving offence you may be charged with Drive Disqualified. Criminal Code driving offences include Drive Over 80 mgs., Refuse or Fail to Provide a Breath Sample, Impaired Driving, Impaired or Over 80/Care or Control, Fail to Remain at the Scene of an Accident, Flee Police and Dangerous Driving.
You may even be charged with Drive Disqualified if your licence has been suspended under provincial law as the result of the commission of a criminal offence. In Ontario, for example, you may be charged with Drive Disqualified if your licence is suspended under the Highway Traffic Act for fail to remain at the scene of an accident, dangerous driving or an alcohol-related driving offence. If you drive in violation of restrictions imposed on your driving as part of your sentence, you are liable to prosecution for Drive Disqualified. A restriction could include a requirement that you drive only for employment as part of a probation order or that you drive only if your vehicle is equipped with an ignition interlock device.
For some acts of driving, police could charge you with either drive disqualified or drive suspended.
Proof of the Offence
To prove the offence of Drive Disqualified, the Crown must establish that you were “operating” a motor vehicle. Sitting behind the wheel of a car with the engine off does not qualify as “operating” (even though it may suffice to warrant a charge of Impaired/Care or Control).
Further it must be established that you were aware of the suspension, prohibition or driving restriction. Such knowledge may be inferred.
The Crown also must establish that the driver’s licence in question was subject to a suspension, prohibition or driving restriction.
If the charge has been laid because you were caught driving in breach of a driving prohibition, the Crown must also prove that you were operating your vehicle “on a street, road, highway or other public place.”
Drive disqualified is a hybrid offence, that is, it can be prosecuted by indictment or by summary conviction. If prosecuted by indictment, the maximum jail penalty is five years. If prosecuted summarily the maximum jail penalty is six months and the maximum fine is $5,000. A conviction also leads to a driving prohibition of at least one year for a first offence, at least two for a second and no less than three for a third. The prohibition is in addition to any period of imprisonment.
Under the Ontario Highway Traffic Act, a conviction for drive disqualified results in an automatic one-year suspension that runs consecutive to any other suspension. For a subsequent conviction, that is, one registered within five years of a previous conviction, the suspension is two years. The suspension could be longer as it remains in effect until the driving prohibition imposed for the offence expires.
If you’re charged with drive disqualified, a skilled lawyer could get the Crown to reduce the charge to drive suspended or even a minor traffic violation. I have consistently achieved results like these in past cases. Please contact me to arrange a consultation if you want help with a charge of drive disqualified.
Drive Under Suspension
If your licence is suspended under provincial law (e.g., for non-payment of fines, non-payment of family support payments, or following a Criminal Code conviction) you could be charged with the provincial offence of Drive Under Suspension.
In Ontario, the Highway Traffic Act sets out very stiff penalties for driving under suspension. For a first conviction, the minimum fine is $1,000 and the maximum fine is $5,000. For a subsequent conviction, that is, one registered within five years of a previous conviction, the minimum is $2,000 and the maximum is $5,000. You could go to jail for up to six months in addition to or instead of a fine.
If your licence was suspended because you were found guilty of a Criminal Code driving offence, the fines are much greater. For a first conviction, the minimum fine is $5,000 and the maximum fine is $25,000. For a subsequent conviction, that is, one registered within five years of a previous conviction, the minimum is $10,000 and the maximum is $50,000.
Section 59(1) of the Provincial Offences Act of Ontario provides that a court can impose a fine below the minimum fine in exceptional circumstances where imposition of the minimum fine would be “unduly oppressive” or “otherwise not in the interests of justice.”
If you’re convicted of Drive Under Suspension, your driver’s licence will be suspended for six months consecutive to any other suspension to which you are subject.
EXCEPTION: A suspension for Drive Under Suspension (or Drive Disqualified) will run concurrently with a remedial suspension or one resulting from non-payment of fines, family support payments or a court judgment for damages from a motor vehicle accident. A remedial suspension kicks in if you’re convicted of a drink-drive offence, but fail to complete the Back on Track program by the expiration of the suspension under the Highway Traffic Act.
For examples of how I have successfully defended Drive Disqualified charges, see Cases.