What Does Impaired Driving Mean?

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]

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.

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.