- “Over 80” refers to having 80 or over mg of alcohol per 100 mL of blood, measured within two hours of driving—it’s a criminal offence under Canada’s Criminal Code.
- Police can use roadside screening devices or breathalyzers at the station; refusal to comply is also a criminal offence with harsh penalties.
- You can face charges even if you drank after driving, unless you meet a very narrow legal exception (rarely successful). Impaired driving and “over 80” are separate charges—one based on behaviour, the other on blood alcohol concentration.
- Consequences include: criminal record, licence suspension, vehicle impoundment, increased insurance rates, travel restrictions, and immigration issues.
- Even before a conviction, immediate administrative penalties like 90-day licence suspensions and vehicle impoundment take effect.
- These cases are legally and technically complex, requiring detailed analysis of testing procedures, officer conduct, and equipment accuracy.
What does “over 80” really mean in Ontario?
Breaking down the term: 80 milligrams of alcohol per 100 milliliters of blood
The “80” in “over 80” refers to a specific blood alcohol concentration measurement: 80 milligrams of alcohol per 100 milliliters of blood. This might sound complicated, but it’s simply how scientists and the legal system measure the amount of alcohol in your bloodstream at any given time. Under Section 320.14(1)(b) of the Criminal Code of Canada, it’s a criminal offence to operate or have care or control of a motor vehicle when your blood alcohol concentration equals or exceeds 80 milligrams of alcohol per 100 milliliters of blood. Most people know this as the 0.08% limit, but the legal standard is technically expressed in milligrams per 100 milliliters. What makes this particularly important is that the law doesn’t just apply to the moment you’re driving. The Criminal Code makes it an offence to have this blood alcohol concentration within two hours of operating a vehicle. This means that even if you only consumed alcohol after you finished driving, you could still face criminal charges if your blood alcohol concentration exceeded 80 mg per 100 mL within that two-hour window. The measurement itself represents the scientific relationship between alcohol consumption and its presence in your blood. When you drink alcohol, it gets absorbed into your bloodstream through your stomach and small intestine, then gets distributed throughout your body. The concentration in your blood provides a reliable indicator of how much alcohol is affecting your system at any given time.Where the law draws the line
The 80 mg per 100 mL threshold isn’t arbitrary—it represents the point where Canadian law has determined that alcohol significantly impairs a person’s ability to operate a motor vehicle safely. However, it’s crucial to understand that this isn’t the only line that matters when it comes to drinking and driving charges. In Ontario and most other provinces, there’s also a “warn range” that creates serious consequences before you reach the criminal threshold. The warn range typically covers blood alcohol concentrations between 50 mg per 100 mL (0.05%) and 79 mg per 100 mL (0.079%). While being in the warn range doesn’t result in criminal charges, it triggers immediate administrative penalties including licence suspensions, fines, and vehicle impoundment. What many people don’t realize is that you can also be charged with impaired driving even if your blood alcohol concentration is below 80 mg per 100 mL. The Criminal Code creates separate offences for operating a vehicle while impaired by alcohol and for operating with a blood alcohol concentration over the legal limit. The difference between impaired driving and over 80 charges often comes down to how the Crown prosecutor chooses to proceed with the case and what evidence is available. The legal system treats the 80 mg per 100 mL threshold as a clear, objective standard that doesn’t require proof of actual impairment. If the Crown can prove your blood alcohol concentration exceeded this limit within two hours of driving, that’s sufficient for a conviction, regardless of whether you appeared impaired or drove perfectly safely.How police test for “over 80”
Screening devices vs. intoxilyzer breath tests
Police in Canada use two distinct types of devices when investigating drinking and driving: roadside screening devices and evidentiary breath analysis instruments. Understanding the difference between these tools becomes important because they serve different purposes in the legal process and have different levels of accuracy and legal significance. Approved Screening Devices (ASDs) are used at the roadside to determine whether alcohol is present in a driver’s blood. These devices provide a quick indication of whether someone has been drinking, but they’re not precise enough to determine exact blood alcohol concentrations for court purposes. As of 2024, police across Canada can use any of thirteen approved screening devices, including the newly added Alcotest 6000, along with familiar names like the Alco-Sensor IV and various Dräger Alcotest models. The key thing to understand about roadside screening devices is that they’re primarily investigative tools. If you fail a roadside screening test—meaning it indicates the presence of alcohol in your blood—police then have grounds to demand a more precise breath test using an approved instrument back at the police station. Evidentiary breath analysis instruments, often Intoxilyzers, (breathalyzers are no longer used in Canada), provide the precise measurements that courts rely on for “over 80” convictions. These approved instruments include devices like the Intoxilyzer 8000 C, Intoxilyzer 9000, and BAC Datamaster C, which are specifically designed and calibrated to measure blood alcohol concentration with the accuracy required for criminal proceedings. The testing process at the police station involves strict procedures that must be followed precisely. The police take two separate breath samples, at least 17 minutes apart on an Intoxilyzer, and use the lower of the two readings as the evidence against you. The two samples must be in good agreement to be valid. This is defined as the two rounded down samples being within 20 mg% of each other. For example, if the first breath sample is 125 mg% and the second is 100 mg%, two two rounded down samples (120 and 100) are considered to be in good agreement. The entire process must be conducted by a qualified technician using properly maintained and calibrated equipment.When blood tests are used instead
While breath tests represent the most common method for measuring blood alcohol concentration in “over 80” cases, there are circumstances where police may demand blood samples instead. Blood testing typically occurs when breath testing isn’t practical or available, when there are medical reasons why someone can’t provide adequate breath samples, or when there are concerns about the accuracy of breath test results. Blood tests require a qualified medical professional to draw the sample, which must then be analyzed by a laboratory using approved methods. The process is more invasive and time-consuming than breath testing, but it can provide extremely accurate measurements of both alcohol and drug concentrations in your blood. Police may also request blood samples in cases involving drug-impaired driving, particularly when they suspect impairment by substances other than alcohol. Blood analysis can detect a wide range of drugs and provide specific concentration measurements that help prove impairment cases in court. The timing of blood tests becomes particularly important because of the “within two hours” rule in the Criminal Code. Police must be able to establish when the blood was drawn in relation to when you were last operating a vehicle to use the results as evidence against you.What if you refuse a test?
Refusing to provide a breath or blood sample when lawfully demanded by police is itself a criminal offence under the Criminal Code, carrying penalties that are often identical to or even harsher than the underlying drinking and driving charge. This means that refusing testing doesn’t protect you from criminal charges—it typically makes your legal situation worse. The Criminal Code makes it an offence to fail or refuse to comply with a demand for a sample without a reasonable excuse. The courts have interpreted “reasonable excuse” very narrowly, typically requiring serious medical conditions that make providing a sample dangerous or impossible. Simply being afraid of the results or wanting to avoid charges doesn’t constitute a reasonable excuse. The penalties for refusal include a mandatory minimum fine of $2,000 for a first offence, mandatory driving prohibitions, and potential imprisonment for repeat offences. These penalties apply regardless of whether you were actually impaired or over the legal limit at the time of the demand. What makes refusal particularly problematic from a legal defence perspective is that it eliminates the possibility of challenging the accuracy of breath or blood test results. Many successful defences to “over 80” charges focus on technical problems with testing procedures, equipment calibration, or operator qualifications. When you refuse to provide samples, you lose access to these potential defences while still facing serious criminal charges. Since December 2018, police across Canada have also had the authority to demand roadside breath samples through Mandatory Alcohol Screening, even without suspecting that you’ve been drinking. This means that any lawfully stopped driver can be required to provide a breath sample, and refusing this demand also constitutes a criminal offence.What happens if you’re charged with over 80
It’s a criminal offence—not just a traffic violation
One of the most important things to understand about “over 80” charges is that they’re criminal offences under the Criminal Code of Canada, not simple traffic violations. This distinction carries enormous implications for how these cases are handled by the legal system and what consequences you face if convicted. Criminal charges mean you’ll be processed through the criminal court system, not traffic court. You will be arrested and potentially held in custody until a bail hearing if you are a repeat offender, and required to appear in court multiple times as your case proceeds. The Crown prosecutor handling your case will be a lawyer specifically trained in criminal law, and they’ll have access to specialized resources and procedures designed to secure convictions. Being charged with a criminal offence also triggers certain rights and protections under the Canadian Charter of Rights and Freedoms. You have the right to speak with a lawyer immediately upon arrest, the right to remain silent, and the right to be tried within a reasonable time. Understanding and protecting these rights becomes crucial for building an effective defence strategy. The criminal nature of “over 80” charges also means that a conviction creates a permanent criminal record that appears on background checks and can affect employment opportunities, professional licensing, international travel, and immigration status. Unlike traffic violations that might only appear on your driving record, criminal convictions follow you indefinitely unless you successfully apply for a record suspension. The Crown prosecutor can choose to proceed with “over 80” charges either summarily or by indictment, depending on the seriousness of the case and other factors. This choice significantly affects the maximum penalties you face and how quickly your case moves through the court system. Summary proceedings typically involve shorter timelines and lower maximum penalties, while indictable proceedings can result in much more serious consequences but also provide additional procedural protections.Immediate consequences: licence suspension and vehicle impoundment
Even before you’re convicted of anything, being charged with an “over 80” offence triggers immediate administrative consequences that begin affecting your life right away. These administrative penalties are separate from the criminal charges and occur regardless of whether you’re ultimately found guilty in court. In Ontario and most other provinces, police officers have the authority to immediately suspend your driver’s licence at the roadside if they have reasonable grounds to believe you’ve committed a drinking and driving offence. This administrative licence suspension lasts 90 days for a first offence, during which time you cannot legally drive for any reason. Vehicle impoundment is another immediate consequence that catches many people off guard. Police will typically impound your vehicle for seven days following an “over 80” arrest, regardless of whether you own the vehicle or were just borrowing it. You’ll be responsible for all towing and storage fees, which can easily amount to hundreds of dollars by the time you’re able to retrieve your vehicle. The combination of immediate licence suspension and vehicle impoundment can create serious practical problems for people who depend on driving for work, family responsibilities, or medical appointments. These consequences apply regardless of whether you’re ultimately convicted, meaning you could face weeks or months of disruption to your daily life even if you successfully defend against the criminal charges. Some provinces also impose immediate administrative monetary penalties ranging from hundreds to thousands of dollars, depending on your blood alcohol reading and whether you have previous drinking and driving related incidents on your record.Long-term consequences: criminal record, insurance, and employment
The long-term consequences of an “over 80” conviction extend far beyond the immediate criminal penalties and can affect virtually every aspect of your life for years or even decades to come. Understanding these broader implications becomes crucial when deciding how to approach your defence and whether to consider plea negotiations. A criminal record for drinking and driving creates permanent consequences that appear on background checks conducted by employers, licensing bodies, volunteer organizations, and immigration authorities. Many employers in transportation, healthcare, education, finance, and other regulated industries will not hire people with impaired driving convictions. Professional licensing bodies may suspend or revoke licences for lawyers, doctors, nurses, teachers, and other professionals. Insurance consequences represent one of the most significant ongoing financial impacts of an “over 80” conviction. Insurance companies typically classify convicted impaired drivers as high-risk clients, resulting in dramatically increased premiums that can persist for years after the conviction. Some insurance companies may refuse to provide coverage entirely, forcing you to obtain insurance through high-risk pools at extremely expensive rates. International travel may become complicated with a criminal record for impaired driving. While various legal mechanisms exist to overcome these travel restrictions, they typically involve expensive and time-consuming legal processes with no guarantee of success. Immigration consequences can be particularly severe for non-citizens. Impaired driving convictions can affect applications for permanent residence, prevent people from sponsoring family members, and in some cases, lead to removal proceedings. Even permanent residents and naturalized citizens can face complications when traveling or trying to bring family members to Canada. The mandatory driving prohibition that accompanies criminal convictions creates additional long-term challenges. First-time offenders face a mandatory minimum one-year driving prohibitions, while repeat offenders can face prohibitions lasting several years or even lifetime bans. During the prohibition period, you cannot legally drive for any reason, and violating a prohibition order constitutes another criminal offence. Convicted individuals must also complete mandatory education or treatment programs and install ignition interlock devices in their vehicles once they regain their driving privileges. These requirements involve additional time and expense that can persist for years after the original conviction.How Kruse Law Firm approaches over 80 defences
At Kruse Law Firm, we understand that “over 80” charges represent some of the most technically complex cases in criminal law, requiring both detailed knowledge of scientific testing procedures and strategic thinking about how to achieve the best possible outcome for our clients. These cases demand more than general criminal defence experience—they require specific knowledge of breath and blood testing technology, police procedures, and the evolving legal landscape surrounding impaired driving prosecutions. Our approach to defending “over 80” cases begins with thorough investigation of every aspect of your arrest and testing procedures. We examine police notes and reports for procedural errors, review the calibration and maintenance records of testing equipment, and analyze the qualifications and training of the officers involved in your case. These technical cases often succeed or fail based on seemingly minor details that inexperienced lawyers might overlook. We recognize that every “over 80” case is unique, involving different circumstances, different testing procedures, and different potential defences. Our strategy development process includes careful analysis of the specific facts of your case, identification of the strongest available defences, and realistic assessment of likely outcomes through trial versus plea negotiations. Our extensive experience handling hundreds of impaired driving cases per year, gives us valuable insight into how these charges are prosecuted and what approaches tend to be most effective with specific Crown prosecutors and judges. This local knowledge often proves crucial in developing strategies that work in the real world of criminal courts. We also understand that the consequences of “over 80” convictions extend far beyond the immediate criminal penalties. Our approach considers the broader impact on your employment, professional licensing, insurance costs, and family responsibilities when developing defence strategies and evaluating potential resolution options. When clients face false accusations or cases where technical defences apply, we investigate thoroughly and advocate aggressively to expose problems with the Crown’s case. When evidence supports some form of criminal responsibility but mitigating factors exist, we work to achieve outcomes that minimize long-term consequences while ensuring our clients receive fair treatment under the law. Our representation philosophy balances vigorous advocacy with realistic assessment of case strengths and weaknesses. We believe in fighting hard for our clients while ensuring they understand their options and the likely consequences of different approaches to their cases.Frequently asked questions
Can I be convicted of “over 80” if I only drank after I finished driving? This is one of the most common misconceptions about “over 80” charges. The Criminal Code makes it an offence to have a blood alcohol concentration of 80 mg per 100 mL or more within two hours of operating a vehicle, regardless of when you consumed the alcohol. This means you can be convicted even if you only started drinking after you parked your car and went into a bar or your home. The law does include a narrow exception for people who consumed alcohol after driving with no reasonable expectation that they would be required to provide a breath or blood sample, and who can prove their blood alcohol concentration was below the legal limit at the time they were actually driving. However, proving this exception is extremely difficult and requires detailed evidence about your drinking patterns and timing, including hiring an expert toxicologist to testify in court in order to establish the defence. What’s the difference between “impaired driving” and “over 80” charges? These are two separate criminal offences that address different aspects of drinking and driving. Impaired driving under Section 320.14(1)(a) focuses on whether your ability to operate a vehicle was actually impaired by alcohol, regardless of your specific blood alcohol concentration. “Over 80” under Section 320.14(1)(b) is based purely on having a blood alcohol concentration at or above the legal limit, regardless of whether you appeared or felt impaired. You can be charged with both offences arising from the same incident, but you cannot be convicted of both due to legal principles preventing multiple convictions for the same criminal act. In other words, if you proceed to trial on a two count impaired driving and “over 80” criminal information and the judge finds you guilty of both charges, the judge will stay one of the charges. If you decide to plead guilty to one of the charges, the Crown will withdraw the other charge. This is called the Kineapple principle which prevents a person from being convicted of multiple offences arising out of the same single criminal act or transaction because they have substantially the same legal elements and are essentially a single criminal wrong. Can police demand a breath sample even if they don’t suspect I’ve been drinking? Yes, since December 2018, police officers across Canada have had the authority to demand roadside breath samples through Mandatory Alcohol Screening (MAS) from any lawfully stopped driver, even without suspecting alcohol consumption. This represents a significant expansion of police powers that eliminates the previous requirement for reasonable suspicion that a driver had alcohol in his system before demanding breath samples. Refusing to provide a breath sample when lawfully demanded is itself a criminal offence carrying serious penalties. The introduction of MAS means that any traffic stop—for speeding, distracted driving, or any other reason—can now include a demand for a breath sample despite there being no impaired driving symptoms. How accurate are roadside breath testing devices? Roadside screening devices are designed to detect the presence of alcohol in your blood, but they’re not precise enough to determine exact blood alcohol concentrations for court purposes. These devices can be affected by factors like mouth alcohol, environmental conditions, and calibration issues, which is why they’re used primarily as investigative tools rather than evidence of specific blood alcohol concentrations. If you fail a roadside screening test, police then have grounds to demand more precise testing using approved evidentiary instruments (i.e., an Intoxilyzer) at the police station. These evidentiary devices undergo rigorous testing and calibration procedures to ensure accuracy for court purposes, though they can still be subject to technical challenges in some cases. What should I do if I’m stopped and suspected of drinking and driving? If you’re stopped by police and suspected of drinking and driving, your immediate priority should be compliance with lawful demands while protecting your legal rights. You must provide requested documents like your licence and registration, and you must provide breath samples if lawfully demanded—refusing these requirements constitutes criminal offences. However, you have the right to remain silent beyond providing basic identification information, and you have the right to speak with a lawyer immediately if the police place you under arrest. Contact legal counsel as soon as possible, avoid discussing the details of your case with anyone except your lawyer, and don’t make any decisions about how to proceed without professional legal advice. Can I get my licence back while fighting the charges? The immediate 90-day administrative licence suspension imposed at the roadside is separate from the criminal charges and operates under different rules than the criminal court process. Some provinces have appeal procedures for administrative suspensions, though these typically require prompt action within specific time limits. Even if you’re successful in appealing an administrative suspension, you may still face a criminal driving prohibition if convicted of the “over 80” charge. If your criminal court case is still pending after your 90-day ADLS has expired, you can get your licence back from the Ontario Ministry of Transportation (“MTO”) and drive pending the outcome of your criminal case. For example, if you get your licence back from the MTO after the 90-day ADLS, you can drive right up to the time of your trial. If you win your trial, then there will be no further driving prohibition or licence suspension. If you are convicted at your trial, there will be further mandatory driving prohibitions and licence suspensions imposed on you. At Kruse Law Firm, we understand that “over 80” charges can affect every aspect of your life, from your immediate freedom to your long-term career and family relationships. Our approach combines detailed technical knowledge with practical understanding of how these cases unfold through Ontario’s specialized court systems. We provide comprehensive impaired driving defence services through our offices across Ontario. Our Toronto DUI lawyers serve clients throughout the Greater Toronto Area, while our Kitchener DUI lawyers provide representation throughout Waterloo Region. For clients in Southwestern Ontario, our London DUI lawyers offer local knowledge of regional court procedures, and our Windsor DUI lawyers serve clients throughout Essex County and the border region. Our comprehensive DUI and impaired driving defence practice includes extensive resources on understanding the warn range for impaired driving in Ontario and detailed analysis of how to win an exceed or over 80 trial. We also provide guidance on complex issues including the differences between impaired driving and over 80 charges, helping clients understand how these distinct charges can affect their cases. For immediate consultation regarding “over 80” charges or impaired driving matters, contact Kruse Law Firm. Early legal intervention can mean the difference between a manageable situation and consequences that affect the rest of your life.
Michael Kruse is a seasoned criminal defence lawyer with more than 36 years of experience in Ontario. A former Assistant Crown Attorney, Mike brings decades of courtroom and trial experience to the defence of serious criminal charges. He leads Kruse Law Firm with a strategic, practical approach focused on strong advocacy and achieving the best possible outcome for every client.
