Driving Over 80 in Canada: Charges, Penalties, and Defences
Driving under the influence of alcohol is a serious offence with significant legal implications across the globe. In Canada, the law is particularly stringent when it comes to driving with a blood alcohol concentration (BAC) of over 80. Commonly referred to as the “over 80” offence, this charge carries significant legal and personal consequences.
The severity of these charges underscores the importance of securing experienced legal representation to navigate the complexities of the legal system effectively. It also highlights the need for professional criminal lawyers to achieve the best possible outcome.
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What is Driving Over 80 Charges in Canada?
According to Section Section 320.14(1)(b) of the Canadian Criminal Code, an individual commits an offence if their BAC exceeds 80 milligrams of alcohol in 100 millilitres of blood. This legal threshold is crucial as it defines the limit at which driving becomes unlawful due to alcohol consumption.
Unlike some impaired driving charges that rely on observed impairment, the over 80 charge is solely based on the driver’s BAC, as measured through breathalyser or blood tests. Breathalysers, the more common method, estimate BAC by analysing the driver’s breath, while blood tests provide a direct measurement.
Difference Between Impaired Driving and Over 80
Impaired driving and driving over 80 are two distinct charges under Canadian law, though they both relate to operating a vehicle under the influence of alcohol. Impaired driving is about the effect of alcohol on a person’s ability to drive, while over 80 is a specific BAC limit based on scientific evidence. Both are serious criminal charges, but the Crown must prove different elements for each one.
Impaired driving focuses on the driver’s observable impairment. This charge can be laid if the driver’s ability to operate a vehicle is noticeably affected by alcohol or drugs (or both), regardless of their BAC. Signs of impairment may include erratic driving, slurred speech, or poor coordination.
Driving over 80, on the other hand, is solely based on scientific evidence, i.e. the driver’s BAC. A person can be charged with driving over 80, even if they show no visible signs of impairment. The key factor is that their BAC exceeds the legal limit of 80 milligrams of alcohol per 100 millilitres of blood. This limit applies universally to all drivers, without exceptions for age, experience, or any other factors.
How Can a Police Officer Determine if You Are Over 80?
To determine if a driver’s BAC exceeds the legal limit of 80mg of alcohol per 100ml of blood, police officers follow a specific process:
- Observation and Traffic Stop: The officer observes driving behaviour for signs of impairment, such as erratic driving or traffic violations. During the stop, the officer assesses the driver’s behaviour, appearance, and speech.
- Mandatory Alcohol Screening (MAS): In addition to observing driving behaviour, police now have the authority to demand a roadside breath test from any driver they lawfully stop, even without reasonable suspicion of impairment. This is called Mandatory Alcohol Screening (MAS).
- Field Sobriety Tests: If the officer suspects impairment, they may administer a series of standardised field sobriety tests to evaluate coordination and cognitive abilities.
- Breathalyser Test: If the officer determines that the driver may be impaired based on the field tests, the next step is often to conduct a breathalyser test. An initial breathalyser test is conducted roadside to measure BAC. If it indicates impairment, two additional tests are administered at the police station, 15 minutes apart, to ensure accuracy.
- Arrest and Further Testing: If the BAC exceeds the legal limit of 0.08%, the driver will be arrested and may undergo further testing at the police station. This testing requires the driver to provide two breath samples taken at least 17 minutes apart. The results of these tests are critical as they are admissible in court and are used to confirm the BAC reading.
- Refusal to Provide a Breath Sample: Refusing a breath sample can result in charges of refusal to comply, leading to fines, licence suspensions, and a criminal record, with more severe penalties for repeat offenders.
Police officers in Toronto determine if a driver is over 80 through a combination of initial observations, field sobriety tests, and breathalyser tests. Each step is crucial in establishing reasonable grounds for arrest and ensuring that the legal process is followed correctly.
What Are The Sentences and Penalties for Over 80 Charges?
The consequences of driving over 80 conviction can be severe, including licence suspensions, fines, mandatory alcohol education programs, and even jail time for repeat offenders. This charge serves as a crucial deterrent against drunk driving, emphasising the importance of responsible alcohol consumption and prioritising road safety.
Penalties for First-Time Offenders
First-time offenders face immediate penalties under the Highway Traffic Act, including:
- A 90-day driver’s licence suspension.
- A seven-day vehicle impoundment.
- Mandatory attendance at an alcohol treatment and education program.
- Installation of an ignition interlock device for a minimum of one year.
- A minimum fine of $1,000.
- A one-year driver’s licence suspension.
- Additional fines and fees related to traffic violations and vehicle impoundment.
First-time offenders do not typically face jail time.
Penalties for Second Offence
Penalties increase significantly for a second offence:
- Mandatory attendance at an alcohol education and treatment program.
- A three-year minimum requirement for the ignition interlock device.
- A fine determined by the judge.
- A three-year driver’s licence suspension.
- A minimum 30-day jail sentence.
Penalties for Subsequent Offences
For subsequent offences, the penalties become more severe:
- Continued enrollment in mandatory alcohol education and treatment programs.
- Lifetime requirement for an ignition interlock device on all vehicles driven by the offender.
- Additional fines as determined by the judge.
- Possible suspension of the driver’s licence for 10 years to life, depending on the judge’s criteria.
- A minimum 120-day jail sentence.
These escalating penalties reflect the seriousness with which Canadian law treats repeated impaired driving offences, aiming to deter individuals from reoffending and to ensure public safety. That said, it’s important to note that these are the minimum penalties. Judges have discretion to impose harsher sentences, including up to 10 years imprisonment for an indictable offence.
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What Elements Are Required to Prove an Over 80 Charge?
To secure a conviction for an over 80 charge, the prosecution must establish two primary elements:
Operation of a Motor Vehicle: The prosecution must prove that the individual was either driving or in care or control of a conveyance (which includes motor vehicles, vessels, aircraft, or railway equipment). This means showing that the accused was driving or in a position to set the vehicle in motion.
Intent to Drive: Moreover, the Crown must show that the accused had the intent to drive or was in care or control of the conveyance after consuming alcohol or drugs voluntarily. This means that the individual was aware that they had consumed alcohol and still chose to operate the vehicle.
Blood Alcohol Concentration (BAC): Evidence must demonstrate that the individual’s BAC was over the legal limit of 80 mg of alcohol per 100 ml of blood at the time of driving or within two hours of operating the vehicle. This is typically established through breathalyser or blood test results.
Understanding these elements is crucial for mounting an effective defence. Challenging the accuracy or procedure of BAC testing, or questioning the circumstances of vehicle operation, can be key strategies in defending against an over 80 charge.
How to Defend Against Over 80 Charges in Canada?
Facing over 80 charges in Canada requires a robust defence strategy. Multiple defences can be employed based on the specifics of each case.
Challenging the Police Stop
One key defence against over 80 charges is questioning the legality of the police stop. Under Canadian law, an officer must have reasonable and probable grounds to suspect impairment or a driving offence to initiate a traffic stop. Reasonable grounds could include observable traffic violations, erratic driving, or credible information about the driver’s behaviour.
If it can be demonstrated that the police stop lacked reasonable grounds, any evidence gathered during the stop, including breathalyser results, may be deemed inadmissible in court. This defence focuses on protecting the individual’s rights against unlawful searches and stops, potentially leading to a dismissal of the charges if the stop was not justified.
Faulty Breathalyser Test
One of the most effective strategies is to question the accuracy and reliability of the breathalyser test. Breathalysers can be prone to mechanical faults and operator errors. To challenge the breathalyser results, a defence lawyer may examine the calibration and maintenance records of the device, the training and qualifications of the operator, and the procedures followed during the test.
Possible errors to look for include:
- Outdated or improperly maintained equipment.
- Incorrect test administration.
If any discrepancies are found in the testing process, it can cast doubt on the accuracy of the BAC reading, potentially leading to the evidence being deemed unreliable and inadmissible in court.
Insufficient Evidence of Impairment
Another defence strategy is to argue that there is insufficient evidence of impairment. For an over 80 charge, the Crown must prove beyond a reasonable doubt that you were impaired at the time of driving. Simply having alcohol or drugs in your system is not enough; the prosecution must show how these substances impaired the individual’s ability to operate the vehicle safely.
If you are facing impaired driving charges, it is crucial to consult with a qualified criminal defence lawyer. They can challenge ambiguities or weaknesses in the prosecution’s evidence, such as:
- Lack of clear observations of impairment from the arresting officer.
- Inconsistencies in the officer’s testimony or reports.
- The absence of physical evidence of impairment, such as erratic driving, was captured on video.
By highlighting these gaps, the defence can argue that the prosecution has not met the burden of proof, potentially leading to a dismissal of the charges.
Charter Rights Violations
A powerful defence against over 80 charges is arguing that the police violated your rights under the Canadian Charter of Rights and Freedoms ,. Key Charter rights relevant to over 80 cases include:
- Right to be Informed of the Reasons for Arrest: The accused must be promptly informed of the reasons for their arrest.
- Right to Legal Counsel: The accused has the right to consult with a lawyer without delay.
- Right to be Free from Unreasonable Search and Seizure: Any search or seizure must be conducted reasonably and lawfully.
Violations of these rights can have significant implications for the case. For example, if the accused was not informed of their right to a lawyer, or if there were unreasonable delays in granting access to legal counsel, the evidence obtained during that time may be excluded from the trial.
Testing Delays
According to the Criminal Code, BAC tests should be conducted within two hours of the last time the accused operated the vehicle to ensure the results accurately reflect the BAC at the time of driving.
A defence lawyer can argue that:
- Delays in Testing: If the BAC test was conducted significantly late, the results might not accurately represent the BAC at the time of driving, raising doubts about the validity of the charge.
- Impact on BAC Levels: Alcohol levels in the blood can change rapidly. Delays can result in BAC readings that are higher or lower than they were when the person was driving.
Delays in BAC testing can be a significant factor in driving over 80 cases. By highlighting these delays, the defence can argue that the BAC evidence is unreliable and should be excluded from the case, which could lead to a dismissal of the charges.
Why Hire a Lawyer for Over 80 Charges in Canada
Facing over 80 charges in Canada carries serious consequences, making professional legal representation crucial for navigating these charges effectively.
- Extensive Knowledge of Over 80 Laws: Lawyers possess extensive knowledge of impaired driving laws, specifically the regulations around over 80 charges. Their understanding of the legal nuances ensures that they can apply the law effectively to individual cases.
- Strategic Defence Planning: Lawyers develop strategic defence plans tailored to the specifics of over 80 charges. They can identify weaknesses in the prosecution’s case, such as faulty breathalyser tests or procedural errors, and use these to build a strong defence. Even if a conviction is unavoidable, a lawyer can work to negotiate for reduced penalties or alternative sentencing options.
- Challenging Evidence: A lawyer’s proficiency in challenging evidence is vital. They can question the accuracy and reliability of breathalyser results, the legality of the traffic stop, and any potential violations of the accused’s rights. This can lead to the exclusion of critical evidence and possibly the dismissal of charges.
- Navigating Legal Procedures: The legal procedures for over 80 charges are complex and must be meticulously followed. Lawyers ensure that all procedural requirements are met, preventing delays and procedural errors that could negatively impact the case.
Contact an Experienced Criminal Lawyer
Driving over 80 is a serious charge with severe consequences, including fines, licence suspensions, and potential jail time. If you or someone you know is facing over 80 charges, it is essential to seek the advice of an experienced criminal defence lawyer as soon as possible.
Contact Pyzer Criminal Lawyers for a free case evaluation and consultation. We are available 24/7 to provide the support and guidance you need during this challenging time. Trust our experienced team to fight vigorously for your best interests and to help you navigate the legal process with confidence.
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