Drive Over 80 Charges & Defences

What Does Driving Over 80 Mean in Ontario?

Driving Over 80 is a criminal charge that applies when a driver’s blood alcohol concentration is 80 milligrams of alcohol or more in 100 millilitres of blood.

When a driver is arrested for impaired driving the results of a breathalyzer test are used as evidence to prove that the drivers blood/alcohol level was over .08, which is an offence under the Criminal Code of Canada.Drivers found guilty of an Over 80 charge receive a criminal record, driver’s licence suspension, fines and other serious consequences.

However, as Toronto criminal lawyers we advise, “being charged with Driving over 80mgs, does not mean you will be found guilty“. The Crown Attorney must prove the charge beyond a reasonable doubt using evidence that is legally admissible in court.

Led by former Crown Attorney Nicholas Charitsis, our team of DUI lawyers bring more than 25 years of criminal law experience to defending drinking and driving charges. With more than 350 five-star Google reviews and outstanding reviews across other independent websites, Charitsis Law is Toronto’s best-reviewed criminal defence office for DUI and drinking and driving charges.

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

Driving Over 80 Penalties in Ontario

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

The penalties for a Drive Over 80 conviction in Ontario depend on whether you have previous drinking and driving convictions and how high your blood alcohol concentration was. A conviction results in a criminal record, driver’s licence suspension, a fine, mandatory education or treatment programs, and in some cases jail.

• 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.

Driving Over 80 & Blood/Alcohol Concentrations

Drive Over 80 mgs is a criminal charge based on the concentration of alcohol in a driver’s blood. The legal limit 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.”

Many drivers charged with Driving Over 80 did not believe they were impaired or over the legal limit when they were stopped.

An Over 80 charge generally involves evidence that:

• The accused was driving or had care and control of a motor vehicle.
• Police obtained breath samples from the driver.
• Breath testing produced readings at or above the legal limit.
• The Crown relies on those results as evidence of the driver’s blood alcohol concentration was over the legal limit.

Driving Over 80 is different from impaired driving. An Over 80 charge does not necessarily mean:

• The driver was “drunk.”
• The driver appeared intoxicated.
• The driver’s ability to operate the vehicle appeared impaired.

Instead, the Over 80 charge focuses on the driver’s blood alcohol concentration and whether the Crown can legally prove that it exceeded the permitted limit.

Relevant Criminal Code provision:
Over 80 / BAC 0.08 (80 mg/100 mL) — Criminal Code of Canada
View section 320.14 on the Justice Laws Website (Government of Canada)

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.
  • Did the police have the right to demand a breathalyzer test, then
  • Was the driver over the legal limit of .08 mgs.
• Impaired driving is based on alleged impairment of the driver’s ability to operate a vehicle.
  • The officer believed the driver’s ability to operate a motor vehicle impaired/changed due to the consumption of an alcohol or drug.
  • The driver was arrested for impaired driving, whereupon the officer made a legal demand to test the drivers breath/alcohol readings.
  • When the breathalyzer readings were taken, the driver was over the legal limit of .08 mgs.

Why Are Both Over 80 and Impaired Driving Charges Often Laid?

Many times the police may charge a driver with both Drive Over 80 and impaired driving because they are separate criminal offences based on different evidence.

This means the same traffic stop can produce evidence supporting both charges:

• Drive Over 80: The breath test results show a blood alcohol concentration over the legal limit.
• Impaired Driving: The officer’s observations and other evidence suggest the driver’s ability to operate the vehicle was impaired.

For example, a driver may be stopped after weaving between lanes. The officer notices slurred speech and problems with balance. Later breath testing shows the driver’s blood alcohol concentration was over the legal limit.

The driving and physical observations support the impaired driving charge, while the breathalyzer results support the Over 80 charge.

Being charged with both offences does not mean you will necessarily be convicted of both. Where both charges arise from the same incident, the way convictions and sentencing are ultimately dealt with depends on the findings made in the case.

Can You Beat an Over 80 Charge in Ontario?

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

Can you beat an Over 80 charge? The answer depends on the evidence, how the breath testing was conducted, and whether police complied with the Criminal Code and Charter of Rights and Freedoms.

An Over 80 charge may appear straightforward. Police obtain breath samples and the results show a blood alcohol concentration over the legal limit. However, a breathalyzer reading does not end the case.

The Crown Attorney must still prove the charge beyond a reasonable doubt. A criminal defence lawyer will review the disclosure, police notes, breath demands, testing procedures, timelines, Charter compliance, and breathalyzer evidence for legal issues that may weaken the Crown’s case.

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, evidence obtained afterward may be challenged.

Grounds for the Breath Demand

The legal requirements for a breath demand depend on the type of demand being made and the circumstances of the traffic stop.

In some situations, police may use mandatory alcohol screening without first developing a reasonable suspicion that the driver has alcohol in their body. In other situations, the officer’s grounds for making the demand can become an important issue.

A defence lawyer may examine:

• What type of breath demand was made?
• What did the officer observe before making the demand?
• What information did the driver provide?
• Do the officer’s notes support the grounds relied upon?
• Was the demand made in accordance with the Criminal Code?

If the legal requirements for the demand were not met, the resulting breath evidence may be challenged.

The “Forthwith” Requirement

The timing of roadside breath testing can be important. Where the Criminal Code requires a sample to be provided forthwith, the demand must be carried out without unnecessary delay, subject to the circumstances of the investigation and the proper use of the testing equipment.

Important questions may include:

• Was the roadside test conducted promptly?
• Were there unnecessary delays before testing?
• Is the timeline clearly documented in the disclosure?
• Did anything occur that could affect the reliability of the roadside result?

Timing issues can become important when reviewing whether the roadside demand and testing were conducted properly.

Right to Counsel

After arrest or detention, a person has the right to be informed of their right to counsel and, in appropriate circumstances, given a reasonable opportunity to speak privately with a lawyer.

The defence may examine:

• Was the right to counsel properly explained?
• Did the driver ask to speak with a lawyer?
• Was a reasonable opportunity provided to contact counsel?
• Was the conversation with the lawyer private?
• Did police obtain evidence before providing access to counsel?

A breach of Charter rights may provide grounds to ask the court to exclude evidence obtained as a result of the breach.

Breath Testing Procedure

Breath testing used in an Over 80 prosecution must comply with the requirements of the Criminal Code and applicable testing procedures.

The defence may examine:

• Were the required breath samples properly obtained?
• Was the breath technician qualified?
• Were the tests administered correctly?
• Are there problems with the testing records?
• Do the disclosure and breathalyzer records support the Crown’s case?

Drive Over 80 cases can involve technical and legal issues that are not obvious from the breath readings alone.

The breathalyzer number is only part of the evidence. A detailed review of the disclosure can identify problems with the traffic stop, breath demand, Charter compliance, testing timeline, or breathalyzer evidence that may affect whether the Crown can prove the charge beyond a reasonable doubt.

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FAQs from Our Drive Over 80 Lawyers