Drive Over 80 mgs

Driving with Over 80 mgs

Driving over 80 is a criminal charge is based on a breathalyzer reading of over 80 mgs of alcohol in your body under the Criminal Code of Canada. Drivers convicted of driving over 80 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 drinking and driving lawyers, Charitsis Law fights impaired driving and drive over 80 charges. Our defence strategies for drive over 80 charges have helped hundreds of drivers in Ontario, and we can help you.

Charitsis Law has built a reputation on successfully representing Ontario drivers in the criminal courts. Led by former Crown Attorney Nicholas Charitsis, our team of DUI lawyers examines evidence, identifies legal issues and builds winning defence strategies.

If you need to speak to a criminal lawyer, call Charitsis Law now at 416-731-7113.

Driving Over 80 Penalties

The penalties for driving over 80 are the same as all drinking and driving charges.

Drive over 80 charges are taken seriously in Canada. Persons convicted of drinking and driving charges receive a criminal record, a driver’s licence suspension, and other significant consequences that extend well beyond the courtroom, such as:

• Criminal record: if you’re convicted of a criminal offence in Canada you receive a criminal record 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 ignition interlock 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 maybe 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 may have to provide medical proof of their sobriety before a licence can be issued.

Licence Prohibitions

The licence suspension imposed under the Criminal Code for driving over 80 is broad and strictly enforced. It prohibits the operation of any type of motor vehicle anywhere in Canada including private property.

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 any type of engine, including:

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

Before deciding how to proceed, speak with Nicholas Charitsis, an experienced drive over 80 lawyer and former Crown Attorney. A review of the evidence can help you see the defences we see and identifying issues with the traffic stop, breath demand, testing timeline, or breathalyzer results. Call 416-731-7113 and let’s discuss your case today.

What Does Driving Over 80 Mean?

Drive Over 80 mgs means, that police had a legal right to demand a breath sample from a driver. When the driver gave the breath sample, the concentration of alcohol in their body was over the legal limit.

The legal limit in Canada is 80 milligrams of alcohol per 100 millilitres of blood (80 mg/100 mL), commonly referred to as a blood alcohol concentration (BAC) of 0.08 or “.08”. The measurement is commonly referred to as BAC (Blood Alcohol Concentration).

Many drivers charged with Driving Over 80 mgs were unaware they were over the limit and honestly believed they were sober at the time.

• 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, the charge of driving over 80 does not mean:

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

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)]

Fighting Drive Over 80 mgs Charges

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 of what happened beyond a reasonable doubt. These cases are technical and often turn on procedural and legal technicalities.

To secure a conviction for driving while over 80 mgs, the Crown Attorney 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 motor vehicle in motion. Even sitting in the driver’s seat with access to the keys can result in charges. 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 demanding a breath test. 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 must be made properly and lawfully.
  The demand for breath samples must be clear and comply with the wording required under the Criminal Code of Canada. The court wants to see that it was made in the proper sequence. In drive over 80 charges 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 and forthwith to the nearest available breathalyzer setup. Unnecessary delays can raise legal 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 (Breathalyzer) must be legally approved and properly maintained. The breathalyzer 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.
  Police must comply with observation periods and required steps must be completed correctly by the breathalyzer technician. Officers must follow strict procedural safeguards. Small technical failures can 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.

Read our 25 defences to impaired driving and drive over 80 charges >>>

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.

Legal Issues in Drive Over 80 Charges

Drive Over 80 charges can be challenged. Learn the legal issues that may affect your case.

An Over 80 charge may seem straightforward. The police stop a driver, obtain a breath sample, and the result is over the legal limit.

However, that does not mean the charge will result in a conviction. The Crown Attorney must still prove the case beyond a reasonable doubt to the judge, and the outcome often depends on whether the police complied with 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 in drive over 80 charges 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.

If you have been charged with driving over 80, speak directly with DUI lawyer Nicholas Charitsis. He will review the evidence, explain your legal options, and discuss the defence strategies that may be available in your case. Call 416-731-7113 today for a confidential consultation.

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 the driver was operating a motor vehicle while their ability to do so was impaired due to an alcohol or drug, regardless of the blood alcohol concentration.

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.

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FAQs from Our Drive Over 80 Lawyers