Drive Over 80 mgs

Driving with Over 80 mgs

Driving over 80 is a criminal charge is based on a breathalyzer reading of 80 mg or more under the Criminal Code of Canada. Convicted drivers receive a criminal record for life and lose their drivers licence. The penalties affect your licence, your record, and your future. However, being charged does not mean you are guilty.

As Ontario DUI lawyers, our defence strategies to DUI charges have helped hundreds of drivers in Ontario, and we can help you. We understand what wins drive over 80 charges — what happened during the stop, what the police disclosure shows about the breath tests, and the legal arguments that can be used to challenge the evidence.

In many cases, when that evidence is reviewed properly, legal issues come up that others may miss — and those issues can change the direction of the case.

If you need to speak to a criminal lawyer, call Charitsis Law now at 647-930-0200.

Relevant Criminal Code provision:
Over 80 / BAC 0.08 (80 mg/100 mL) — Criminal Code of Canada
[View the full section on the Justice Laws Website (Government of Canada)]

Drive Over 80 Penalties

Drive over 80 charges are taken seriously in Canada. A conviction for a drinking and driving charge results in a criminal record and suspension of your drivers licence.

The penalties for drive over 80 extend beyond the courtroom. The penalties for driving and driving charges include;

• Criminal record: if you’re convicted of a criminal offence in Canada you receive a criminal record that stays with you for life.
• Licence Suspensions: Drivers convicted of criminal driving offences receive a driving prohibition for at least one year for first offences.
• Employment: Commercial drivers are unemployable with a criminal driving conviction. If your a professional like accountant, lawyer, financial services your regulating body may require you to report criminal charges.
• Ignition interlock devices: – when your licence is reinstated you will be required to pay for the installation and monitoring of a breathalyzer device in any vehicle you wish to drive.
• Insurance implications: – persons convicted of driving and driving offences are placed in high risk insurance rates for 5 or more years.
• Travel: Persons convicted of criminal driving offences are prohibited from entering the United States or many other countries.
• Jail: Where there are repeat offences, a serious situation or death the accused can be sent to jail as determined by the court.
• Fines: A minimum $1,000 fine for a first offence
• Mandatory Alcohol Testing: Before any reinstatement the driver will have to provide medical proof of their sobriety before a licence can be issued.

Licence Prohibition

The licence suspension imposed under the Criminal Code is broad and strictly enforced. It prohibits the operation of any motor vehicle, not just standard road vehicles.

In many cases, people are surprised by how far this definition extends and how significantly it can affect day-to-day activities.

The licence prohibition applies to anything powered by an engine, including:

• Cars, trucks, and motorcycles
• Farm machinery and construction equipment
• Instructional or training vehicles
• Riding lawn mowers and similar motorized equipment

In practical terms, if the equipment is engine-driven, it will almost certainly fall within the scope of the suspension. This is a comprehensive driving ban, not a limited restriction.

Why You Can’t Afford to Plead Guilty

Any conviction for a drinking and driving charge including Drive over 80 carries serious and lasting consequences that many people underestimate. The impact does not end in court and can follow you for years, affecting your employment, travel, and long-term opportunities.

Before making any decision, it is critical to have your case reviewed by a criminal defence lawyer, a DUI lawyer who understands how these cases are proven and challenged in court. A proper review of the evidence, gives you a clear understanding of your options or the potential outcome.

A careful review can uncover issues with the traffic stop, the breath demand, the timing of testing, or the reliability of the breathalyzer results. In many cases, these details can change the direction of the case and create real opportunities to have the charge reduced, withdrawn, or dismissed.

Speaking with a criminal lawyer before pleading guilty can make a significant difference in how your case is resolved.

What Driving Over 80 Means

Drive Over 80 mgs means that police tested for alcohol and the result was over the legal limit of .08. The measurement is commonly referred to as BAC (Blood Alcohol Concentration).

Many individuals charged with Drive Over 80 mgs were unaware they were committing a criminal offence and believed they were sober at the time. Here is what Drive Over 80 mgs means:

• The driver consumed alcohol.
• The driver was operating, or in care and control of, a motor vehicle.
• A breathalyzer test was administered.
• The test showed a BAC of 0.08 (80 mg per 100 mL) or higher.
• The reading reflects the concentration of alcohol in the driver’s bloodstream at the time of testing.

However, Drive Over 80 mgs does not necessarily mean:

• The driver was “drunk.”
• The driver was visibly intoxicated.
• The driver’s driving appeared impaired.

Being over 80 milligrams simply means a breath test registered alcohol above the legal limit set by law, and whether the legal requirements were properly followed is what often determines the outcome in court.

Drive Over 80 mgs vs Impaired Driving

Drive Over 80 mgs and impaired driving are separate offences under the Criminal Code of Canada, even though they often arise from the same traffic stop.

• Drive Over 80 mgs is a numbers-based allegation. It depends on whether a breath test registered 0.08 (80 mg per 100 mL) or higher.
• Impaired driving is based on alleged impairment of the driver’s ability to operate a vehicle.
  • Impaired driving can be alleged even if a breath reading is below 0.08.
  • Drive Over 80 mgs can be alleged even if the driver did not appear visibly impaired.

Why Are Both Charges Often Laid?

It is common for police to lay both charges at the same time. As their considered two separate offences.

• The over 80 charge says that the driver was over the legal limit
• The impaired driving charge says that they were operating a motor vehicle while their ability to do so was impaired due to an alcohol or drug.

This does not mean you will be convicted of both. In most cases, the court will only enter one conviction if guilt is proven, because both charges arise from the same incident and have the exact same penalty.

What the Crown Must Prove in a Drive Over 80 mgs Case

In a Drive Over 80 mgs case, the Crown Attorney cannot rely on a breath reading alone. The prosecutor must prove every essential legal element beyond a reasonable doubt. These cases are technical and often turn on procedural details.

To secure a conviction, the Crown must prove:

• The driver was operating, or in care and control of, a motor vehicle.
  This includes actively driving or having the ability to set the vehicle in motion. Even sitting in the driver’s seat with access to the keys can raise legal questions. The surrounding circumstances matter when determining care and control.
• The officer had lawful grounds to make the breath demand.
  Police must have reasonable grounds before requiring certain breath tests. Those grounds must be based on objective facts, not assumptions. If proper grounds did not exist, the demand may be challenged, creating defence issues.
• The breath demand was made properly and lawfully.
  The demand must be clear and comply with the wording required under the Criminal Code. It must also be made in the proper sequence. An improper demand for breath samples can affect whether the results are admissible in court.
• The driver was taken forthwith for testing when required.
  The law requires that breath testing occur without unreasonable delays. Unnecessary delays can raise compliance issues. Timing can become important when reviewing the evidence. e.g. the officer must take the accused directly without delay for the breath tests.
• The breath tests were conducted on an approved instrument by a qualified technician.
  The device must be legally approved and properly maintained. The technician must be certified to operate the instrument. Documentation and calibration records may also create defence issues.
• The testing procedure followed the legal requirements under the Criminal Code of Canada.
  Observation periods and required steps must be completed correctly. Officers must follow strict procedural safeguards. Small technical failures can sometimes have legal consequences.
• The readings were at or above 80 mg per 100 mL at the legally relevant time.
  The Crown must connect the test results to the time of driving. The legal presumption depends on proper timing and compliance. Issues surrounding timing or calculation can affect the strength of the case.

If the Crown fails to prove even one of these elements beyond a reasonable doubt, a conviction for Drive Over 80 mgs cannot result. That is why these cases are not automatic, even when a breath reading appears straightforward. Careful legal review is often critical before deciding how to proceed.

Drive Over 80 mgs cases often turn on technical details, timing, and procedural compliance — which is why a careful review of disclosure can sometimes uncover weaknesses that are not obvious at first glance.

Common Defence Issues in a Drive Over 80 mgs Case

A Drive Over 80 mgs charge may appear straightforward, but these cases often depend on whether police strictly followed the legal requirements set out in the Criminal Code and the Charter of Rights and Freedoms.

Grounds for the Traffic Stop

Police must have lawful authority to stop the vehicle.

• Was the stop part of a lawful RIDE program?
• Was there a valid traffic reason for the stop?
• Were the officer’s notes consistent with what occurred?

If the initial stop was unlawful, the evidence that followed may be challenged.

Grounds for the Breath Demand

Before demanding a roadside breath test, the officer must have the required legal grounds.

• Was there a clear basis to believe alcohol had been consumed?
• Were those grounds properly articulated in the notes?
• Did the officer rely on assumptions rather than observable facts?

If proper grounds did not exist, the breath demand itself may be open to challenge.

The “Forthwith” Requirement

After an arrest, police must take the driver forthwith (meaning without delay) for breath testing when required.

• Were there unnecessary delays before testing?
• Did officers divert to unrelated tasks?
• Is there a clear timeline in the disclosure?

Timing issues can sometimes affect the reliability or admissibility of the test results.

Right to Counsel

Under the Canadian Charter of Rights and Freedoms, a person has the right to speak with a lawyer without delay.

• Was the right to counsel properly explained?
• Was a reasonable opportunity provided to contact a lawyer?
• Was the accused given the opportunity to speak in privacy with the lawyer?

If Charter rights were breached, it creates a legal defence to your charge.

Breath Testing Procedure

Approved instruments must be operated according to strict procedures.

• Were two proper samples taken?
• Was the technician qualified?
• Was the observation period followed?
• Are maintenance and calibration records complete?

Drive Over 80 mgs cases often turn on technical compliance with these procedures.

Because the Crown must prove every step beyond a reasonable doubt, even small procedural errors can matter — and that is why a detailed review of disclosure is often the most important part of defending a Drive Over 80 mgs charge.

As Ontario DUI lawyers, we focus on what actually wins these cases — what happened during the stop, what the police disclosure shows about the breath tests, and the legal arguments that can be used to challenge the evidence. Read more about drive over 80 defences.

Speak to a Drive Over 80 Lawyer

If you are facing a drive over 80 charge, early legal advice can significantly influence how your case unfolds.

• Our first objective is to determine whether the charge can be challenged or withdrawn.
• If withdrawal is not possible, we focus on reducing the long-term consequences wherever legally available.
• We review the stop, the grounds for the demand, and the breath testing procedure in detail.
• We examine disclosure for technical or Charter issues.
• Where necessary, we are prepared to take the case to trial and require the Crown to prove every element beyond a reasonable doubt.

Our goal is always to protect your record, your licence, and your future, and many drive over 80 cases turn on details that are not obvious at first glance.

Call 647-930-0200 to discuss your Drive Over 80 mgs charge and learn what strategy may be available in your situation.

Frequently Asked Questions About Drive Over 80 mgs

Q. Is it possible to win my DUI or “drive over 80” charge?

A. Yes, it is possible to successfully defend a DUI or “drive over 80” charge, depending on the evidence and how the case is handled. These cases are often technical, and the Crown must prove each part of the offence beyond a reasonable doubt using reliable and properly obtained evidence.

In many cases, a careful review may uncover issues such as:
• Whether the police had proper legal grounds to stop or investigate
• Problems with the breath demand or how it was given
• Timing issues with the breath tests
• Concerns about the accuracy or reliability of the approved instrument

If any of these issues raise a reasonable doubt, it can create an opportunity to have the charge reduced, withdrawn, or dismissed.

The key is to have the case reviewed early by a criminal defence lawyer who understands how DUI cases are proven and challenged in court. Speaking with a lawyer can help you understand your options and whether there is a viable path to successfully defending the charge.

Q. Can I be charged with both impaired driving and Drive Over 80 mgs?

A. Yes. Police frequently lay both charges arising from the same incident.

Drive Over 80 mgs is based on the breath reading, while impaired driving is based on alleged impairment of your ability to operate a vehicle. An impaired driving lawyer will assess whether the Crown can prove either theory beyond a reasonable doubt, and in most cases only one conviction can result from the same event.

Q. What does the Crown have to prove in a Drive Over 80 mgs case?

A. The Crown must prove you were operating or in care and control of a motor vehicle, that police had proper legal grounds, that you were taken forthwith for testing when required, and that approved instruments were used correctly.

An experienced impaired driving lawyer understands that these cases often turn on timing, documentation, and procedural compliance.

Q. How do I find the best DUI lawyer?

A. The best DUI lawyer for your case is one who focuses on impaired driving charges and has a clear, proven approach to reviewing evidence and defending cases in court.

Start by looking for a criminal defence lawyer with specific experience in DUI cases, not just general criminal charges. In many cases, the strength of a DUI defence comes down to how well the lawyer understands issues like breath testing procedures, legal grounds for the stop, and the reliability of the evidence.

When comparing lawyers, consider:
• Experience handling DUI cases in Ontario courts and familiarity with local court procedures
• A clear explanation of the defence strategy and how your case will be reviewed
• Strong client reviews that reflect real results and communication
• Your comfort level speaking with the lawyer and their ability to answer your questions directly

Before making a decision, speak with the lawyer and ask how they would approach your case. A proper consultation should help you understand your options, identify any potential issues in the evidence, and give you confidence in how your defence will be handled.

Q. What does it cost to fight a “drive over 80” charge?

A. The cost to fight a “drive over 80” charge depends on the specific details of your case, including how much evidence must be reviewed, whether there are legal issues to challenge, and whether the matter proceeds to trial. DUI cases are often technical and require a careful analysis of disclosure, breath testing procedures, and the circumstances of the stop and arrest.

Because every case is different, the most accurate way to understand the cost is to speak directly with our criminal defence lawyers. After reviewing your situation, we can explain what is involved, outline a defence strategy, and provide a clear understanding of the expected legal fees.

Call 647-930-0200 to speak with our lawyers and discuss your case. Early advice can help you understand your options and make an informed decision about how to move forward.

Q. Would I have been better off refusing the breath test?

A. In most cases, refusing to provide a breath sample is not a better option. Under the Criminal Code of Canada, a refusal is treated as a separate and serious criminal offence, with penalties that are often similar to or even more severe than an impaired driving conviction. This can include a criminal record, driving prohibition, significant fines, and in some cases, jail.

While some people believe refusing makes it harder for the Crown to prove the case, that is not always true. The prosecution can rely on other evidence, and the refusal itself becomes the central issue in court. In addition, if the police had proper legal grounds to make the demand and the refusal is proven, the charge can be difficult to defend without a careful legal review.

Every case is different. There may be issues with the legality of the breath demand or how the situation was handled. Speaking with a criminal defence lawyer can help you understand whether any defence strategies apply in your specific circumstances.

Q. Will I go to jail for a first Drive Over 80 mgs offence?

A. No. Jail is not mandatory for a first offence, but fines, a driving prohibition, and a criminal record may apply if convicted.

An impaired driving lawyer will explain the realistic risks based on your record and the strength of the evidence.

Q. How long does a Drive Over 80 mgs case take?

A. The timeline varies depending on court scheduling, disclosure review, and whether the case resolves early or proceeds to trial. Our DUI lawyers can give you a clearer estimate after reviewing the specific facts of your case.

Q. Should I speak to a DUI lawyer about my Drive Over 80 mgs charge?

A. Yes. Early legal advice can clarify the strength of the evidence, explain what the Crown must prove, and help you understand whether challenging the charge, negotiating resolution, or proceeding to trial may be appropriate in your situation.