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80 mg and Over DUI

80mg and Over DUI refers to driving with a blood alcohol concentration (BAC) level exceeding 80 milligrams of alcohol per 100 millilitres of blood.

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Impaired Driving Over 80 mg in Canada

What is impaired driving?

Driving under the influence (DUI) or impaired driving charge is quite serious in Canada.  Impaired driving involves operating a vehicle while impaired by alcohol, drugs or a combination of the two.  An individual may be impaired even if their consumption of alcohol or certain drugs is below the legal limit; it matters if the influence of alcohol, drugs or both has compromised their ability to drive.

What is impaired driving over 80 mg?

Under paragraph 320.14(1)(b) of the Criminal Code:

320.14 (1) Everyone commits an offence who


(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;


While impaired driving can encompass a wider range of behaviour, over 80 mg charges refer to when a driver has equal to or over 80mg of alcohol per 100mL of blood in their system.  It is an offence to have equal to or over the legal limit within two hours after operating the vehicle.

How is blood alcohol measured by the police?

Police can measure your blood alcohol concentration (BAC) using an approved screening device (ASD).

You will be asked to blow a breath sample into the device and it will register one of three readings:

  • Pass: You will register a ‘pass’ reading if your BAC is below 50 mg
  • Warn: You will register a ‘warn’ reading if your BAC is between 50-79 mg
  • Fail: You will register a ‘fail’ reading if your BAC is at or above 80 mg

What are the penalties for driving impaired across Canada?

Maximum Punishment

Impaired driving charges carry a mandatory minimum penalty across the country.  While some of the penalties will vary depending if this is your first, second or third offence, the maximum punishment includes:

  • Indictment
    • Impaired driving: Up to 10-years imprisonment;
    • Impaired driving causing bodily harm: Up to 14-years imprisonment;
    • Impaired driving causing death: Up to life imprisonment.
  • Summary
    • Impaired driving: Up to 2-years less a day imprisonment;
    • Impaired driving causing bodily harm: Up to 2-years less a day imprisonment.

Minimum Punishment

The mandatory minimum punishment for impaired driving charges are as follows:

  • First offence: $1,000-$2,000 fine;
  • Second offence: 30-day imprisonment; and
  • Third offence: 120-day imprisonment.

Roadside Penalties

In addition to the penalties listed above, drivers may receive roadside sanctions for impaired driving.

While the penalties will vary by province, they may include:

  • Licence suspension;
  • Vehicle seizure and associated costs;
  • Participation in remedial or educational courses; and
  • Participation in an Ignition Interlock Device program.

Penalties for impaired driving over 80mg

In addition to the penalties listed above, the mandatory minimum fine for impaired driving over 80 mg will depend on your blood alcohol concentration (BAC) reading:

  • BAC of 80-119mg = $1,000
  • BAC of 120-159mg = $1,500
  • BAC of 160mg or more = $2,000

Defences for impaired driving over 80 mg

While it will ultimately depend on the facts of your case, there are several defences available for impaired driving charges.  Some of which include:

  • Disputing reasonable suspicion
  • Challenging the test results
  • Submitting a Charter application

Disputing Reasonable Suspicion

Under section 320.27 of the Criminal Code, a police officer must have reasonable grounds to suspect that the individual is impaired and has been operating a vehicle within the preceding 3 hours. The officer may try to form reasonable suspicion by asking the driver some questions or observing the driver’s behaviour. If the officer has reasonable suspicion, they may demand further tests, such as a breath sample. If the officer did not have reasonable suspicion, there may be grounds to challenge the demand.

Challenging the Test Results

The result of samples of a person’s breath into an approved screening device operated by a qualified technician is conclusive proof of that individual’s BAC.

It is also the case that the results of any blood samples will be conclusive proof of that individual’s blood drug concentration absent any evidence to the contrary.

You may not challenge the evidence of the results of a blood sample by demonstrating:

  • The amount of alcohol or drugs you consumed;
  • The rate at which the alcohol or drug would have metabolized or absorbed in your body (the “last drink” defence is no longer permissible); or
  • A calculation of what your BAC or blood drug concentration would have been when the police took the sample.

Instead, you may challenge whether:

  • The device was an “approved screening device”;
  • The device was properly calibrated;
  • The device was properly operated; or
  • Whether the sample was collected as soon as practicable.

Charter Application

Typically, your Charter rights kick in from the moment of your detention.  However, some of your Charter rights are suspended during impaired driving road stops.  Nevertheless, one or more of the following Charter rights may have been violated:

  • Section 8: Right to be secure against unreasonable research and seizure
  • Section 9: Right not to be arbitrarily detained
  • Section 10(b): Right to counsel
  • Section 11(b): Right to be tried within a reasonable time

Section 10(b): Right to Counsel

In impaired driving cases, immediately upon arrest, the police must inform the individual of their right to counsel and allow them to exercise that right. If the police did any of the following, then you may be able to exclude any evidence that they collected during the course of the transaction:

  • Failure to Provide Rights: The police did not inform you of your right to counsel
  • Delay in Providing Rights: The police waited too long to inform you of your right to counsel.
  • Failure to Provide Opportunity to Exercise Rights: The police did not allow you to contact counsel.
  • Delay in Providing Opportunity to Exercise Rights: The police waited too long to allow you to contact counsel.

The police cannot use any statements you make against you at trial before they inform you of your rights. However, they may use your statements to form the reasonable suspicion necessary to demand roadside tests.

Section 11(b): Right to be Tried Within a Reasonable Time

Under section 11(b) of the Charter, any person charged with an offence has a right to be tried within a reasonable time. As a result, a stopwatch starts the moment charges are laid to the actual or anticipated end of the trial. If the entire process exceeds 18 months in provincial courts or 30 months in superior courts, you may be able to assert that your right to trial within a reasonable time has been compromised. If the Crown cannot account for the delays, the Crown will need to stay the charges (not prosecute the matter any further).


What does impaired driving over 80 mg mean?

Impaired driving over 80mg refers to registering a blood alcohol concentration (BAC) of at or over 80 mg in 100 mL of alcohol within two hours of operating a vehicle.  You may still be charged with over 80 mg if your BAC reaches the legal limit after you have ceased operating the vehicle.

How much alcohol can you drink before driving?

While the legal limit for alcohol is at or over 80 mg, your ability to drive may still be compromised by the consumption of alcohol.  You may still receive administrative roadside penalties if your blood alcohol concentration (BAC) is at or above 50 mg.  Thus, you must exercise caution and know your body’s reaction to alcohol.  Everyone is different and you must only drive when you feel safe to do so.

Can you beat an impaired driving charge?

Yes.  While it the chances of success and the legal strategies utilized will ultimately depend on the facts of your case, there are several ways to beat an impaired driving charge.  Apart from one of the defences listed above, an impaired driving over 80 mg lawyer can negotiate with the Crown prosecutor to withdraw or reduce the charges.

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