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What is Impaired Driving?

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Frequently Asked Questions

What Does Over 80 Mean?

“Over 80” is a simplified name for the offence located under s. 320.14(1)(b) of the Criminal Code. That provision makes it an offence for a person to have a blood alcohol concentration (BAC) over the legal limit of 80 mg of alcohol in 100 mL of blood within two hours after they have been driving. Since the legal limit is 80 mg of alcohol, the common name for the offence became Over 80. The name also shows that it is different from an impaired driving charge.

What is the Difference Between an Over 80 Charge and an Impaired Driving Charge?

Both an impaired driving charge and Over 80 apply where a person has driven while intoxicated by alcohol or could drive. However, an Over 80 charge is broader than an impaired driving charge. Impaired driving is dealt with under s. 320.14(1)(a) of the Code and concerns the illegal act of driving while the driver’s ability to do so is impaired by drugs and/or alcohol. These charges can also be brought where police know a person has driven in the immediate past while impaired because of the existence of evidence such as the fact that an accident occurred.

Over 80 charges are designed to deal with cases where a driver’s BAC is over the legal limit within two hours after driving, but there may be no evidence that their ability to drive was impaired. An example of this would be the Ontario Court of Justice case of R. v. Lochead, 2021 ONCJ 432 (CanLII). In that case, the accused had swerved off the road to avoid an animal and gotten their car stuck in a field. While waiting for rescue, they consumed alcohol and when they were discovered by police, it was determined that their BAC was over the legal limit. Importantly, because their ability to drive was not affected by alcohol at the time of the accident and their vehicle was inoperable, they were not charged with impaired driving.

Why Can Someone Be Charged with Both Over 80 and Impaired Driving?

It is common for impaired drivers to be charged with both impaired driving and Over 80. Though they are similar offences, they deal with two different acts. As set out above, impaired driving charges are concerned with the act of driving while that ability is negatively affected by alcohol or drugs. Over 80 charges focus on the act of someone having consumed enough alcohol to have a BAC over the legal limit given that they have driven within the last two hours.

People react differently to different amounts of alcohol in their bodies and that can make the issue of impaired ability to drive specific to each person and case. Over 80 is essentially a catch-all offence that sets out the BAC limit as a firm standard to establish a criminal offence. It allows for the law to deal with more potentially dangerous drivers that have deliberately taken the action necessary to pose a threat to other people than through the loose standard of impairment alone.

The Territorial Court of the Northwest Territories case of R. v. Day, 2020 NWTTC 18 (CanLII) demonstrates where both charges can be laid. In this case, the offender was charged with both impaired and Over 80 when police discovered him in his truck, with a BAC over double the legal limit. His presence in the vehicle, his BAC, and the fresh tire tracks made by his vehicle were enough to ground an Over 80 charge, whereas the damage to his vehicle was evidence that his ability to drive was impaired by alcohol. [at paras 33, 37]

Stages of the Criminal Justice System

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In addition to representing repeat offenders, the Firm also has experience defending otherwise law-abiding citizens who simply made a poor decision. Many of our clients have never had any negative interaction with law enforcement prior to their impaired driving arrest. This can make the court process even more stressful and confusing. Donich Law can assist you in developing the correct strategy to defend your case and can guide you throughout the court process to reduce stress and ensure the best possible outcome.

What can Happen to a First Time Offender Convicted of Impaired Driving?

Impaired driving offences are one example of offences that carry minimum penalties under Canadian law. The public perception of these crimes and the serious consequences they can have has led lawmakers to impose penalties even on first time offenders. Section 320.19 of the Code establishes that a first offence for impaired driving carries a minimum $1,000 fine.

Despite the minimum fine, the status of a first-time offender can play an additional role in the sentencing process. Under the law, a person’s criminal record is considered a mitigating factor or a reason to impose a lesser penalty. A first offence at a young age can be one factor that suggests a convicted individual has a decent prospect of rehabilitation because of the chance to learn from a youthful mistake. Furthermore, a first offence later in life can demonstrate that a person has led a law-abiding life worthy of a more lenient punishment.

What’s a Crime in Canada?

Are the Results of a Breath Sample Recorded on an Approved Screening Device at the Roadside Used Against Someone in Their Case?

The results of a breath sample given on an Approved Screening Device (ASD) and provided by a person on the side of the road are not used as the main evidence of an impaired driving offence in a case. The ASD can only indicate to the police whether a person has a BAC over the legal limit. The results of the test determine if a person will be arrested and brought to the police station for further testing. If a person registers a failure on an ASD, they will then be asked to provide further samples on a breathalyzer as part of a test administered by a certified specialist.

A person undergoing a breathalyzer test will provide two samples of breath at least 20 minutes apart. The breathalyzer will then determine a person’s BAC more precisely and that becomes the main evidence used by the Crown to prove an impaired driving offence was committed. The extent to which the Crown may rely on the ASD results as evidence in a case is to show the reason that a breathalyzer test was necessary.

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Our Experience

R. v. R.B. [2013]

In 2013, the Firm successfully defended an individual charged with dangerous driving. impaired driving, and over .80 in the case of R. v. R.B. [2013]. The driver of the vehicle was placed under arrest after he hit a pole at a high rate of speed, causing his car to split into two parts. At the hospital, officers took a sample of the accused’s blood without a warrant, violating his section 8 Charter right against unreasonable search and seizure. The Firm exploited the Charter violation to exclude pertinent evidence and defeat the over .80 and dangerous driving charges.

R. v. D.E. [2018]

In 2018, the Firm successfully represented a client charged with over .80 and impaired driving in the case of R. v. D.E. [2018]. After getting into a collision on highway 401, the driver attempted to leave the scene on foot by walking away down the highway. Officers arrived and placed him under arrest. He later blew 160 mg per 100 ml of blood. The Firm carefully analyzed the evidence presented by the Crown, discovering various issues. The Firm exploited these issues, avoiding serious consequences for the accused.

R. v. A.A. [2022]

In 2022, the Firm represented a second time offender charged with over .80, impaired driving, and drive while disqualified in R. v. A.A. [2022]. The client was arrested after getting into a minor collision with another vehicle. The driver of the other vehicle suspected the accused was intoxicated and contacted police. When police arrived, they also discovered the accused was prohibited from driving due to a prior conviction for impaired driving. The Crown sought a period of incarceration above the mandatory minimum due to the aggravating factors in the case. The Firm engaged in lengthy pre-trial discussions with both the Crown and presiding judge. Ultimately, the Firm avoided a period of custody for the accused, securing instead a short period of house arrest.

R. v. D.M. [2023]

In 2023, the Firm represented a second time offender charged with impaired driving and over .80 in R. v. D.M. [2023]. The client was arrested and charged after he was reported for erratic driving. When officers pulled him over, they discovered open containers of alcohol in the vehicle. The driver had a prior conviction for impaired driving from years earlier and should have faced a mandatory minimum 30 days in jail. The Firm was able to hide the prior conviction, avoiding a jail sentence for the client.

R. v. J.P. [2023]

In 2023, the Firm represented a client charged with over .80 and impaired driving in R. v. J.P. [2023]. The individual was charged after being stopped by police regarding an unrelated incident. While speaking with the individual, officers detected an odour of alcohol and demanded a breath sample. The accused failed the roadside breath test and was placed under arrest and transported to the station. The Firm resolved the matter without a criminal record for the accused, getting the criminal charge dropped in exchange for a careless driving ticket.

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Recent Cases

R. v. Singh, 2019 ABPC 130

The Alberta Provincial Court Case of R. v. Singh dealt with an issue regarding breath samples given on an ASD. Attempting to prevent an impaired driving conviction, the defence attempted to argue that the Code requires the police to take multiple samples on an ASD before arresting an accused individual. In this case, because only one was taken, it was argued that the evidence was acquired illegally and therefore violated the accused’s right to be secure against unreasonable search and seizure.

The judge then had to determine the correct interpretation of the Code provision in question, s. 320.27(2). In reaching their decision, the judge had to be mindful of the intention of Parliament when this law was created. The following was said at paragraph 26, “The wording of s. 320.27(2) of the Code refers to “samples of breath” in the context of “samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made.” While the plural is used regarding “samples”, the singular is used with respect to “a proper analysis”. Also troubling is the concept that even if the peace officer’s opinion is that a proper analysis had been made on one sample a second is still required. This interpretation makes no sense, particularly where there is no suggestion that a second sample would somehow make for a more meaningful screening.”

This analysis allowed the court to decide on an interpretation that avoided an otherwise absurd result that would lead to an acquittal. It is commonly understood that the government does not intend for correct interpretations the law to lead to absurd results.

R. v. Pankovcin, 2020 ONCJ 142

The Ontario Court of Justice case of R. v. Pankovcin resulted in the offender being convicted of an Over 80 offence. The facts of the case were that the offender collided with two parked cars and as a result, blocked a lane of live traffic. The offender then tried to start their car and drive away. The main issue of the case revolved around the act of operating a vehicle and if the offender had the care and control necessary to commit an offence.

There are two ways care and control can be proven in Canadian law. The first, as in this case, is that police can legally assume that anyone in the driver’s seat occupies it for the purposes of driving unless that person can prove that they could not possibly drive. The second manner to prove care and control applies if the first assumption is rebutted and if the Crown can establish that the person was impaired, they had done something involving a vehicle, and their actions created a realistic risk to other people or property. Here, because the offender was impaired and had tried to start their vehicle, they could be assumed to operate the vehicle. [at para 60]

R. v. Lewis, 2021 NSPC 2

The Provincial Court of Nova Scotia case of R. v. Lewis is another example of the application of the care and control concept. In this case, the accused was convicted for an Over 80 offence. They were found in the driver’s seat of a damaged but operational vehicle on the side of the highway. The car was not mobile, but the keys were within reach of the accused. The accused was also under the impression that the police had pulled them over.

Importantly, even though the vehicle belonged to the accused, they had not driven it. Their friend had abandoned the vehicle after the accused had damaged it because of their intoxicated state. Despite these facts, as with the above case, the presumption that the person in the driver’s seat with access to the keys can operate the vehicle applied. The judge went one step further, outlining that the accused’s mistaken perception that they had been pulled over, and the very real possibility that the accused may have driven the car at the time presented a realistic risk to other persons and property. [at para 18] This case demonstrates how seriously Canadian law takes even the possibility of impaired driving.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.