80 mg and Over DUI Laws in Canada

What is an 80 mg and over DUI charge?

An 80 mg and over DUI charge is an impaired driving charge that consists of an accused’s blood alcohol concentration being 80 milligrams of alcohol in 100 millilitres of blood or over, within 2 hours of operating a motor vehicle, vessel, or aircraft.

80 mg and over DUI offences are covered under s.320.14(1)(b) of the Criminal Code, and they are considered hybrid offences. This means that depending on the circumstances of the case, the Crown can elect to proceed either summarily or by indictment.

A DUI charge can affect all aspects of one’s personal and social life and can even lead to jail term if a person is convicted. Being charged with a DUI offence can be very stressful and can lead to a lot of anxiety if the offender does not understand the criminal justice system and how to navigate their way through it.

80 mg and over offences are a technical and complicated area of the law. There are constant changes being made to the law and thus it is crucial that you have the best representation on your side. An experienced DUI lawyer can help you navigate the complex legal issues, protect your rights, and create a strong defence based on the particulars of your case.

Examples

Some examples of an operation while 80 mg and over charge may include the following:

• Police pull over an accused operating a motor vehicle and administer a breathalyzer test which shows a blood alcohol concentration of 0.08 or higher;
• Operating an off-road vehicle with a blood alcohol concentration of 0.08 or higher; and
• An eye witness views a car driving erratically, and it takes the police an hour to locate the driver. When police find the driver outside of his vehicle, they administer a breathalyzer test which shows a BAC of 0.08 mg or higher.

Defences

The defences available for a DUI offence are entirely dependent on the facts of your case.

Some defences to an 80 mg and over DUI charge may include:

• The accused was faced with a situation where operation while over the legal limit was necessary;
• The accused consumed the alcohol after ceasing to operate the vehicle;
• The accused was wrongly identified as the person who operated a motor vehicle while over the legal limit for blood alcohol concentration; and
• The accused’s Charter rights were violated.

Punishments

80 mg and over DUI charges are serious offences in Canada which can often result in jail time, even for a first offence.

Depending on whether the Crown elects to proceed by indictment or summarily, the maximum punishments for driving over the legal limit include:

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

Additionally, all 80 mg and over DUI charges have mandatory minimum punishments.

This means that regardless of whether the Crown elects to proceed by indictment or summarily, you will be subject to the following penalties:

• First offence: $1,000.00 fine;
• Second offence: 30-day imprisonment; and
• Third offence: 120-day imprisonment.

In the case that your breath sample shows a particularly “high” blood alcohol concentration, you will face additional mandatory minimum fines as follows:

• Blood alcohol concentration equal to or exceeding 120 mg of alcohol in 100 mL of blood, but less than 160 mg of alcohol in 100 mL of blood: $1,500 minimum.
• Blood alcohol concentration equal to or exceeds 160 mg of alcohol in 100 mL of blood: $2,000 minimum.

Overview of the Offence

According to s.320.14(1)(b) of the Criminal Code:

Operation while impaired

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;

Exception — alcohol

(5) No person commits an offence under paragraph (1)(b) if

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

The Guilty Act (Actus Reus)

The actus reus for an 80 mg and over DUI charge under s.320.14(1)(b) of the Criminal Code is established by proof, beyond a reasonable doubt, of the following:


• The deliberate act of assumption of care or control of a conveyance when the voluntary consumption of alcohol results in the accused having a blood alcohol concentration of 80 milligrams of alcohol in 100 millilitres of blood or over.

The Guilty Mind (Mens Rea)

The mens rea for an 80 mg and over DUI charge under s.320.14(1)(b) of the Criminal Code is established by proof, beyond a reasonable doubt, of the following:


• The accused voluntarily consumed alcohol for the purpose of becoming intoxicated; or
• The accused voluntary consumed alcohol recklessly, aware that impairment could result, but persisted despite the risk.

80 mg and Over DUI Defences

How to Beat an Operation 80 mg and over DUI Charge

Every case is different. The availability and strength of any defence depends entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some possible defences that may be used when fighting an 80 mg and over DUI charge:

Factual Innocence

The strongest defence against an 80 mg and over DUI offence under s. 320.14(1)(b) of the Criminal Code is that the accused did not operate a conveyance while their blood alcohol concentration was over the legal limit. If you can show that the facts and the evidence do not support that you operated a conveyance while your BAC was over the legal limit, then you may have a defence that you were factually innocent.

Necessity

Another possible defence against an 80 mg and over DUI offence under s. 320.14(1)(b) of the Criminal Code is that it was necessary in the circumstances for the accused to do so. In order for this defence to be successful, an accused must show that they were in an urgent situation with clear and imminent peril, there was no reasonable legal alternative, and the harm avoided outweighed the harm inflicted by operating a vehicle while over the legal limit.

This defence was recently considered in R. v. Guillemette 2022 ONCA 436, where a woman claimed that several men at a bar made her fear for her safety. She testified that the men entered her car, took her phone, and physically assaulted her. The trial judge found her guilty of driving while impaired, but the Appeal Court ordered a new trial on the basis that the trial judge did not properly consider the woman’s testimony, and that the necessity defence could have been made out on the facts.

Consumption after Operation

Under s. 320.14(5) of the Criminal Code, it is a defence to an 80 mg and over DUI charge if an accused consumed the alcohol which brought them over the legal limit after they operated the motor vehicle. If you can prove that you consumed the alcohol which caused you to have a BAC of 80 mg and over after operating your vehicle, you may have a defence to your 80 mg and over DUI charge.

Identity

Depending on the circumstances of your case, a possible defence to an operation while over the legal limit charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who operated a motor vehicle while over the legal BAC limit.

Any Applicable Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

This defence was raised successfully in R. v. Puccini [2014] O.J. No. 6561. In this case, a police officer called out to the accused as he walked toward his home shortly after driving. The accused ignored the officer, and fumbled with his keys before opening the door. The police officer detected an odour of stale alcohol coming from the accused, and followed him inside to arrest him. The court found that this violated sections 8 and 9 of the Charter, and the evidence was excluded.

80 mg and Over DUI Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 14 years for those convicted of an 80 mg and over DUI offence:

Persons found guilty of an 80 mg and over DUI charge are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or a conditional sentence order.

Beyond any immediate jail and/or probation sentence you receive, there are also discretionary DNA Orders and Weapons Prohibition Orders.

This is authorized as a secondary offence listed under s. 487.04 (c), (d) or (e), and the DNA order can be authorized regardless of if the Crown proceeds summarily or by indictment.

Additionally, all 80 mg and over DUI charges have mandatory minimum punishments. This means that regardless of whether the Crown elects to proceed by indictment or summarily, you will be subject to the following penalties:

• First offence: $1,000.00 fine;
• Second offence: 30-day imprisonment; and
• Third offence: 120-day imprisonment.

In the case that your breath sample shows a particularly “high” blood alcohol concentration, you will face additional mandatory minimum fines as follows:

• Blood alcohol concentration equal to or exceeding 120 mg of alcohol in 100 mL of blood, but less than 160 mg of alcohol in 100 mL of blood: $1,500 minimum.
• Blood alcohol concentration equal to or exceeds 160 mg of alcohol in 100 mL of blood: $2,000 minimum.

You also may face an Immediate Roadside Sanction (“IRS”) pursuant to the Traffic Safety Act. An IRS is an administrative charge issued by the province that is not the same as a criminal charge for impaired driving under the Code.

However, although an IRS is not criminal, it will still significantly impede your freedom. A peace officer can issue you an IRS if:

• They believe you were impaired by drugs and/or alcohol;
• You are tested and are found to be over your legal limit of drugs and/or alcohol; or
• If you failed to comply with a demand to test your sobriety.

The penalties that are associated with an IRS can include:

• A licence suspension;
• Participation in the Ignition Interlock Program;
• Participation in mandatory education courses; and
• Fines and Tow Bills.

Frequently Asked Questions

How is a BAC of 80 mg or over determined by law enforcement?

During a traffic or DUI stop, a police officer may also ask you to blow into a breathalyzer test. A breathalyzer test is a device that can be used to estimate the quantity of alcohol in a person’s bloodstream, based on the quantity of alcohol contained in a breath sample obtained from the device. The person will typically be made to blow into the breathalyzer device for a breath sample to be obtained after an implied consent notice has been read out to the driver by the presiding police officer. Implied consent refers to the implicit agreement to comply with a breathalyzer test simply by operating a vehicle.

Sobriety tests in Canada are not always entirely accurate. The information they provide can be inaccurate, subjective, or just not indicative of the circumstances at the time of testing. It is important to speak to a DUI lawyer if the results of your test come back as positive, as there may be defences available to you.

Can I refuse a breathalyzer or roadside screening test in Canada?

It is never a good idea to refuse to take a sobriety test. The police have a right to ask you to take the test – and in some situations refusing to take one could lead to a criminal conviction. For example, refusing to take a breathalyzer test in Canada is actually an offence under the Criminal Code. If you were charged with a refusal/fail to provide a breath sample, you face the same potential sentence that you would otherwise face if you had provided a sample and blown 80 mg or over.

What should I do if I am charged with an “80 mg and over” DUI in Canada?

After being charged with an 80 mg and over offence, you should follow instructions from the police, but exercise your right to silence and a lawyer. You will want to order a copy of your disclosure, which is the evidence the Crown has against you. An experienced DUI lawyer can help you navigate this process.

Conclusion

Driving with a blood alcohol concentration of 80 mg or over is a serious offence with potential penalties including fines, licence suspensions and even imprisonment. In addition, those with a DUI will have a criminal record which can effect employment and travel.

It is important to find a DUI lawyer in Ontario who can guide you through the process after arrest and help find the defences that best assist you in your situation to avoid the consequences of a DUI conviction.