[Updated 2018-10-13]

The offence of Over 80 requires the Crown to prove beyond a reasonable doubt that your Blood Alcohol Concentration (B.A.C.) was over the legal limit (80 mgs of alcohol/ 100 mls of blood) while you were either operating or in care or control of a motor vehicle. In order to prove this charge, the Crown will usually rely on an analysis of samples of your breath taken from you during breath tests conducted by a qualified Intoxilyzer technician using an approved instrument (normally an Intoxilyzer 8000C). In rare circumstances, a blood sample will be taken if there is some reason why you are unable to provide breath samples. You do not have the right to choose which test you want to take.

Over 80 is a very technical charge and there is plenty of room for error by the police both during their investigation and later while testifying at your trial. From the time you are first observed to be driving or in care or control, through to the breath tests and right up until you are released from police custody, there is a very specific and detailed protocol that the police must follow. Your defence lawyer’s job is to expose mistakes made by the police and sometimes even by the Crown Attorney conducting your trial. In order to maximize your chances of success, you need a trial lawyer experienced in conducting drinking and driving cases.

Although there are countless issues that may come up throughout your case, there are generally three lines of defence for an Over 80 charge:

1) Establish that one or more of your rights under the Canadian Charter of Rights and Freedoms have been breached and that as a result, the breath readings should be excluded from evidence or, in some circumstances, that the charges against you should be stayed (meaning that the charges against you will not be permitted to proceed).

Examples of the types of Charter breaches that could result in your breath tests being thrown out are:

a) Your right to be free from unreasonable search and seizure (section 8 of the Charter)
Remember that you were forced to give self-incriminating evidence in the form of breath or blood samples and the Crown Attorney will need to rely on this evidence in order to prove an Over 80 case. In order for the taking of your breath or blood to be lawful, the police had to have the requisite grounds to demand that you provide your breath or to seize your blood. An unlawful strip search could lead to the charges against you being stayed.

b) Your right to not be arbitrarily detained (section 9 of the Charter)

When you are in police custody, you are being deprived of your liberty. The police had to have a lawful reason to stop you and then to detain you throughout the course of their investigation.

c) Your right to counsel (section 10 of the Charter)
Except in very specific circumstances, you have the right upon arrest or detention to be immediately advised of your right to speak with a lawyer of your choice without delay and to speak to this lawyer in order to obtain comprehensible legal advice.

d) Your right to have your trial held within a reasonable time (section 11(b) of the Charter)

There are a number of issues that can arise in relation to these and other rights guaranteed under the Charter.

2) Raise a reasonable doubt regarding compliance with the Criminal Code.

Because no one took a sample of breath or blood from you at that time you were actually driving or in care or control of a motor vehicle, it is impossible for the Crown Attorney to prove you were over the legal limit at the operable time without one of two things:

a) Expert evidence relating the breath test results taken at the police station (or blood tests usually taken at a hospital) back to the time of driving. This expert evidence will rely on a number of assumptions that will have to be proven beyond a reasonable doubt.

b) Reliance on an evidentiary shortcut contained in the Criminal Code of Canada that requires a judge to conclude that the breath test results are an accurate reflection of your B.A.C at the time you were driving or in care or control of a motor vehicle. In order to rely on this shortcut, the judge must be satisfied that a number of prerequisites were proven beyond a reasonable doubt. It is your lawyer’s job to raise a reasonable doubt with respect to the proof of any of these prerequisites

If the breath or blood test results cannot be related back to the time of driving or care or control, there is no evidence of what your B.A.C was at the operable time and no case against you.

3) Establishing “Evidence to the Contrary” and thereby raising a reasonable doubt that the breath or blood test results are an accurate representation of your B.A.C at the time your were driving or in care or control. Evidence to the Contrary is normally presented in the following ways.

a) The “Last Drink Defence”
This defence involves raising a reasonable doubt with respect to whether you were over the legal limit at the time of driving without questioning the accuracy of the breath test results. This would be the case in a situation where you consumed a significant amount of alcohol in a short period of time just before driving (what is known as “bolus drinking”) so that at the time of driving, the alcohol had not yet been absorbed into your blood.

b) Challenging the accuracy of the breath test results:
This defence involves calling evidence to the contrary in order to raise a reasonable doubt regarding the accuracy of the breath test results.

If your first breath test took place within two hours of the time you were found to be driving or in care or control of a motor vehicle, the evidence to the contrary must raise a reasonable doubt that either the breath testing instrument was not functioning properly or that the breath technician did not operate it properly.

If the first test occurred outside of two hours from when you were found to be driving or in care or control, there is no legal requirement to show that there was anything wrong with the breath testing process. In these circumstances, you could raise a reasonable doubt as to the accuracy of the breath test results by calling evidence of your alcohol consumption leading up to the time you were observed to be driving or in care or control of a motor vehicle. Evidence of your consumption and body weight, combined with the evidence of an expert toxicologist who would calculate your Blood Alcohol Concentration (BAC) at the operable time based on this evidence, could raise a reasonable doubt if this evidence is consistent with your BAC being under the legal limit at the operable time.

Cases Related to Over 80

• Impaired Driving and Over 80 Reduced to Careless Driving Charges Related to: Drive Over 80 Criminal Cases, No Criminal Record, No Jail

  My client was charged with Impaired Driving and Over 80. The police observed my client driving on the 401 for several minutes and video recorded it with a camera installed in their police cruiser. R.J., who had difficulty understanding English was eventually stopped and immediately arrested for Impaired Driving. He was taken to the police station where he blew over the legal limit and was additionally charged with Over 80. I filed a Charter application alleging that my client’s right to counsel was violated as he was not put in touch with a lawyer who could speak his language. After I completed my cross-examinations of the investigating officers, I established that the police were clearly having difficulty communicating with my client and that he was not communicated his rights in a way he could properly understand. My cross-examination of the arresting officer also revealed that his recollection of what had occurred that night was very limited. As a result, the Crown agreed to accept a plea to Careless Driving under the HTA instead of proceeding with the drinking and driving charges. My client was more than happy to take the deal.

• Acquittal for Over 80 Breath Test Charges Related to: Acquittal, Breath Test, Drive Over 80 Criminal Cases

  The police received a call regarding a severely damaged vehicle located at the side of a quite stretch of highway, partially in a live lane.  When police arrive, they found D.B alone in the vehicle and fast asleep in the passenger seat.  The police could see that my client was obviously intoxicated and arrested him for Impaired Care or Control.  He was taken to the police station where he was charged with Over 80 as well after blowing well over the legal limit. At trial I successfully argued that the Crown had not proven beyond a reasonable doubt that my client was in care or control of the vehicle and he was acquitted.

• Over 80 Breath Test Charges Acquittal Related to: Acquittal, Breath Test, Drive Over 80 Criminal Cases

  My client was charged with Drive Over 80.  The police received a call from the doorman of a bar that had turned my client and a couple of his friends away, believing they were drunk.  The doorman had given the police the license plate number of my client’s vehicle and a few minutes later my client was stopped.  He failed the breath test at the side of the road and was taken to the police station where he registered breath readings of 180.  My client was acquitted at trial after I successfully argued that the breath technician’s testimony did not prove that one of the technical requirements to prove the charge had been satisfied.

• Impaired Driving Charges Reduced to Careless Driving – No Criminal Record Related to: Bad Driving, Breath Test, Drive Over 80 Criminal Cases, Impaired Driving, No Criminal Record

  My client was charged with Impaired Driving and Over 80. The allegations included high breath test results and what was described as very bad driving. At trial, after the crown had completed their case and I had cross-examined the officers, it was revealed that a video taken of my client at the police station had been recorded but not disclosed to me despite my previous requests.  Furthermore, in my cross-examination of the witness who observed the driving, it was revealed that the driving was not as bad as the allegations had suggested and that the reliability and credibility of this witness was questionable. Finally, I caught on to a technical defect in the breath technician’s evidence that would have resulted in a conviction on the Over 80 charge being an impossibility. Ultimately, the Crown agreed to my client pleading guilty to Careless Driving under the HTA and thus avoiding a criminal record and the serious consequences that accompany a drinking and driving conviction.

• No Criminal Record or Mandatory License Suspension for Drive Over 80 Related to: Drive Over 80 Criminal Cases, No Criminal Record, No License Suspension

  My client was charged with Drive Over 80.  Prior to the trial, I filed a Charter Application alleging that my client’s right to a trial within a reasonable under section 11(b) had been infringed. The likelihood of a judicial stay of my client’s charge as a result of the delay was borderline considering the length of the delay and the nature of the prejudice my client suffered as a result.  On the morning of trial, I had discussions with the Crown Attorney who agree to my client entering a guilty plea to Careless Driving under the Ontario Highway Traffic Act. This is a non-criminal charge that results in no criminal record or mandatory license suspension.

• Not Guilty of Impaired Driving and Dangerous Driving Related to: Breath Test, Dangerous Driving, Drive Over 80 Criminal Cases, Impaired Driving

  My client had been charged with Impaired Driving, Over 80 and Dangerous Driving stemming from an incident in which he had driven into a house.  His breath tests revealed that his Blood Alcohol Concentration was well over the legal limit. My client had made several statements on the scene both to the residents of the home and to the police, even after he was advised of his rights to counsel and cautioned that he did not have to say anything.  My client admitted several times that he had too much to drink and should not have been driving.  To make matters worse, my client could not remember what had happened.  On the day of trial I convinced the Crown to pull the Impaired Driving and Over 80 charges in return for my client pleading guilty to the Dangerous Driving charge.  My client was fined and although his driver’s license was suspended automatically by the Ministry of Transportation, the judge declined to make a separate Order prohibiting him from driving anywhere in Canada.  Because my client was not found guilty of the drinking and driving related charges, he avoided the requirements of having to take Ontario’s Remedial Measures Back on Track Program  and of having an ignition interlock device installed in any vehicle he drove for the year after he got his license back.  These requirements would both involve significant monetary expenditures.  My client also likely avoided significant increases in his insurance premiums.

• Charges Withdrawn for Impaired Driving Related to: Drive Over 80 Criminal Cases, Impaired Driving

  My client was charged with Impaired Driving and Over 80 stemming from a single motor vehicle accident in which my client drove off the road into a ditch. It turned out that the Crown had failed to subpoena one of their witnesses and on the day of trial this witness did not show up. I knew that the Crown could have proven their case without this particular witness but for some reason, the Crown considered this witness to be crucial to their case and requested an adjournment from the judge. I argued that my client was prepared to have his case tried that day, that there was no excuse for the Crown and police neglecting to serve this witness and that my client would be severely prejudiced by having to come back on some future date to have his case heard. The judge agreed and denied the adjournment request. The Crown subsequently withdrew the case against my client.

• Drunk Driving Charges Dropped Related to: Charges Withdrawn, Drive Over 80 Criminal Cases

  My client was charged with Impaired Care or Control and Over 80.  After the trial began and the arresting officer testified, I convinced the Crown that they had significant problems with their case.  The Crown subsequently agreed to drop the drinking and driving charges and offered my client a plea to Careless Driving under the Highway Traffic Act instead.  I pointed out to the Crown that my client had not been driving and therefore could not enter a plea to Careless Driving.  Ultimately the Crown agreed to having my client enter a guilty plea to being Intoxicated in a Public Place contrary to the Ontario Liquor Licence Act.