DUI Charges and Breath Readings Under 120

A Change in Approach During COVID-19

In August 2020, the Ministry of the Attorney General issued a directive to Crown Attorneys. Due to concerns about trial delays caused by the COVID-19 pandemic, Crowns were encouraged to consider plea deals for BAC readings under 120.

Instead of pursuing a criminal DUI conviction, the Crown may offer a plea to:

• Careless driving under the Highway Traffic Act (a non-criminal offence) 
• Withdrawal of the DUI charge after the plea 

This shift was designed to help clear court backlogs while still ensuring meaningful consequences for the accused.  This directive is still in effect in Ontario. 

When a Careless Driving Plea is Possible

Crown Attorneys will typically consider a careless driving resolution if:

• Your BAC is below 120 
• There are no aggravating factors (e.g., an accident, child passengers, or injury) 
• It’s a first-time impaired driving offence or you have no serious criminal record 

The benefits of this resolution are significant:

• No criminal record 
• Avoiding a trial 
• Shorter licence suspension (and possible ignition interlock requirement) 

For many people, this outcome is far better than a DUI conviction, which carries life-altering consequences.

What About BAC Readings Over 120?

Even in cases where BAC readings are above 120, depending on the county,  many Crown Attorneys have been more open to resolving matters with a careless driving plea, provided there is at least a viable defence or Charter issue. 

Before COVID-19, these offers were rare unless the defence case was very strong. Now, if the defence appears reasonable (for example, a 50% or better chance of success), there may be room for negotiation for a careless driving plea. 

Why This Matters

These developments represent one of the few positive outcomes of the pandemic in the Ontario court system. Our firm has successfully negotiated many of these resolutions for clients across the province, helping them avoid the devastating consequences of a DUI conviction.

Key Takeaway

If your BAC was under 120, or even slightly above, there is a strong chance your lawyer may be able to negotiate a careless driving plea. This approach can help you avoid a criminal record and move forward without the long-term impact of a DUI conviction.

If you’ve been charged with DUI, it’s critical to speak with an experienced lawyer who knows how to navigate these negotiations.

For a BAC reading below 120, the crown will strongly consider a careless driving guilty plea as long as there are no aggravating circumstances such as a motor vehicle, a child in your vehicle or obviously a death or bodily injury. As of August 2020, for a garden variety DUI with BAC readings under 120, the crown attorneys will often offer an accused a careless driving plea. The guilty plea to careless driving might still require a shorter licence suspension or installation of an ignition interlock device in your car, but the great benefit is you will not receive a criminal record. Your DUI charge would be withdrawn by the crown and the person really walks out of the courtroom with a much better deal than receiving a devastating criminal record. It is a win/win situation for both the defendant and the crown. This has been one of the very positive developments prompted by the Covid-19 pandemic because of the perception of possible trial delay developing in the province. Certainly, our law firm has been getting great deals for DUI cases across the province for BAC readings below 120.

Even for BAC readings over 120, we have been receiving many careless driving guilty plea offers whenever we can show the crown we have a at least a viable defense. Pre-covid for BAC readings above 120, it was very rare for the crown to offer a careless driving plea unless the defence case was very strong. However, the covid-19 pandemic has now prompted the crown to offer careless driving pleas in many cases above 120 as long as the defence is at least viable at say, a 50% or more level. So there are many great deals to be had during covid for drinking and driving cases.

So there you have it. That is the answer to the question regarding what is going on with BAC readings under 120 in Ontario due to the covid-19 pandemic.