Impaired Driving vs Over 80

I’m here to talk to you about a topic that is not understood by everyone. It’s a question that people often ask me. And it’s this, what is the difference between driving while impaired, that is impaired driving versus blowing over the legal limit.

First of all, these two crimes are found in Section 253 1a of the Criminal Code and 253 1b. (Now 320.14(1)(a) and 320.14(1)(b) of the Criminal Code). And believe it or not, there’s a very important distinction between the two. And the best way I can describe it is by giving you an example. We’re all familiar with the RIDE program. Reduce impaired driving everywhere. Let’s say you pull into a RIDE program and you’ve had a few drinks. You’ve had say four or five beers over the course of the night. And you pull in and the officer smells an odor of alcohol on your breath and your eyes are glassy, but you have no other symptoms. The driving is fine, your coordination fine, there’s no problems.

This officer, now, has the grounds that he has or he or she has a reasonable suspicion that there’s alcohol in your system. That entitles them to give you what’s called an alco test, which is a roadside screening device. You provide a sample into that after the officer makes a demand. If you blow over on that and it’s calibrated at 100, not 80 by the way, the alco test. 100 milligrams of alcohol in 100 milliliters of blood. That’s what it’s calibrated at to give you the benefit of the doubt.

If you blow over on that, this entitles the officer to arrest you, bring you the down the police station and give you what I call the real test—the Intoxilyzer test. You’ll provide two samples. If you blow over on those, if you blow over 80 milligrams of alcohol and 100 milliliters of blood on both tests, and the samples are in pretty good agreement that is within 20 milligrams of each other, rounded down. So, for example, if you blow 109 and 129, those are rounded down within 20 of each other. So, you’re going to be charged with over 80. That’s an over 80 charge, and we’ll talk about defences on that in a second.

What’s an impaired charge? An impaired charge is based on whether your ability to operate a motor vehicle is impaired. That’s based on visual evidence, believable and credible visual evidence. You pull into a RIDE program. You’re driving all over the roadway, you’re slurring your speech, you get out of the car, you’re unbalanced. That person, at that level, would probably be convicted impaired driving. That’s a pretty serious impaired driving. That’s got not, not, necessarily anything to do with how much alcohol is in your bloodstream. Because an alcoholic could blow two hundred and be perfectly sober. Whereas, someone who has never drank before, might, might exhibit those symptoms at 110.

So, there’s totally different defences to each one. Winning the impaired has to do with showing that the police are not being accurate, or credible, or reliable which I talked about that in another videotape, or showing that your symptoms are consistent with another reason. You know swerving on a squirrel, swerving to pick-up something in your car. You normally slur a little bit. You were nervous, you were shifting back and forth. These are called equivocal symptoms. It’s equally consistent with being impaired, equally consistent with another reason. It creates a reasonable doubt.

For over 80 cases, these are more technical defences. Are there Charter violations where your rights were not upheld by the police? Did the police do everything perfectly? There is a very complicated checklist which they have to follow. The procedures break down and we often follow, find errors. Machines malfunction—the Intoxilyzer. There’s all sorts of issues. There’s literally hundreds, if not a thousand different types of defences to over 80 charges. This, there it is in a nutshell, those are the differences between impaired driving and the more technical over 80 milligrams of alcohol in 100 milliliters of blood.