Two numbers matter in an over 80 case, and neither of them is the one on your speedometer. The first is 80, meaning 80 milligrams of alcohol in 100 millilitres of blood. The second is two, as in the two hours after you stopped driving. Most of what follows in the court process comes back to whether the Crown can properly link those two numbers to you.
An over 80 charge doesn’t require proof that you were driving badly, slurring your words, or impaired at all. You can feel entirely fine and still be charged. That is why people are often shocked by it, and why the details of how the tests were demanded and carried out get so much attention.
This is general information about Ontario and federal law, not legal advice on your particular case. Your own situation may raise issues not covered here.
Screening Tests and Evidentiary Tests Are Different Things
People use the word “breathalyzer” for everything, but there are two distinct stages, and they do different jobs.
The roadside screening device is the small hand-held unit. It gives a result such as pass, warn or fail. A fail doesn’t prove an offence. It generally gives the officer grounds to believe an offence was committed and to demand further testing.
The approved instrument is the larger machine, usually at a police station, operated by a qualified technician. It produces the actual readings that the Crown relies on in court.
So a person might fail at the roadside and then blow readings lower than expected at the station, or the reverse. The roadside result is generally used to justify the next step, while the station readings are the evidence of your blood alcohol concentration.
When Police Can Demand a Sample at the Roadside
Section 320.27 of the Criminal Code gives police two routes.
Under subsection (1), an officer who has reasonable grounds to suspect that you have alcohol in your body, and that you operated a conveyance within the preceding three hours, can demand that you perform physical coordination tests and provide a breath sample into a screening device. The classic basis is an odour of alcohol or an admission that you had a drink.
Under subsection (2), known as mandatory alcohol screening, no suspicion is required. An officer who has an approved screening device on hand, and who is lawfully exercising a power, can demand a sample from a driver who is operating a motor vehicle. A RIDE checkpoint on a Friday night near Queen Street or a routine traffic stop for a burned-out tail light can both qualify as a lawful exercise of police powers.
Both routes require you to comply immediately and to go with the officer if needed. In R. v. Breault, the Supreme Court of Canada dealt with a case where a person’s refusal to provide a sample was found not to be an offence, in a dispute over the requirement that the testing be immediate. The law expects promptness from both sides, and if there was a real delay in getting a device to the scene, your lawyer will want to look at it.
You also generally cannot insist on calling a lawyer before blowing into a roadside device. Courts have accepted limits on the right to counsel at this stage, because the process is meant to be brief. That changes once you have been arrested. At that point, you must be told about your right to counsel and given a reasonable opportunity to use it.
The Warn Range and What It Does Not Mean
A result between 50 and 79 milligrams is commonly called the warn range. It is not a criminal offence on its own for a fully licensed adult driver. In Ontario, however, it triggers administrative penalties: a 7-day licence suspension and a $250 penalty on a first occurrence, with an education course, and escalating to 14 days and $350, then 30 days, $450 and a six-month interlock requirement on a third.
Drivers aged 21 or under, novice drivers, and commercial drivers operate under zero tolerance. For them, any alcohol at all can bring consequences. If you drive a transport truck out of a Brampton yard, a small amount of alcohol may affect your licence, even though it wouldn’t produce a criminal charge. It may also raise employment issues.
What the Offence Says and How It Is Proved
Section 320.14(1)(b) makes it an offence to have, within two hours after ceasing to operate a conveyance, a blood alcohol concentration equal to or over 80 milligrams per 100 millilitres of blood.
Notice what the wording does. The offence isn’t limited to the moment you were behind the wheel. It looks at the two-hour window after you stopped driving. This was designed to deal with arguments about how alcohol was absorbed and how fast it left the body.
“Operate” can be broader than people think. Under section 320.35, if you are found in the seat ordinarily occupied by the driver, you are presumed to have been operating the vehicle unless you establish that you were not there for the purpose of setting it in motion. Sleeping it off in the driver’s seat of a parked car at a plaza on Steeles is the classic hypothetical, and it can cause real trouble. Whether you can rebut that presumption will depend on your facts.
The Code makes breath readings powerful evidence if certain conditions are met. Under section 320.31(1), the results of the analyses are conclusive proof of your blood alcohol concentration at the time of testing if:
- a system blank test before each sample shows no more than 10 mg, and a calibration check is within 10% of the target value of a certified standard
- at least 15 minutes pass between the samples
- the results, rounded down to the nearest 10 mg, differ by no more than 20 mg
The lower reading is the one that counts.
If testing occurs more than two hours after you stopped driving, the law doesn’t throw the case out. Section 320.31(4) provides that, where the reading is at least 20 mg, your blood alcohol within the two-hour window is conclusively presumed to be the reading plus 5 mg for each full 30-minute interval beyond two hours. Timing can therefore change the number the Crown relies on.
“As soon as practicable” also matters. Under section 320.28, a demand for station samples must be made as soon as practicable, and the samples are to be provided as soon as practicable as well. Unexplained gaps in the timeline are something a lawyer will want to examine. This does not mean as fast as humanly possible, but it does call for reasonable promptness.
Where the Legal Issues Tend to Be
Every case is different, and many have no obvious flaw. Still, these are questions a defence lawyer will commonly ask after going through disclosure.
- The stop. Why were you pulled over, and was it lawful?
- The grounds. Was there a reasonable suspicion, or a device on hand for mandatory screening? Did a fail or other evidence support the demand for station testing?
- Right to counsel. After the arrest, were you properly informed and given a real chance to call a lawyer, including the lawyer you asked for?
- Search and seizure. Under section 8 of the Charter, were the samples lawfully obtained?
- Timing. What does the timeline show between driving, demand and test?
- Instrument records. Do the blank tests, the calibration checks and the certificate all line up? Section 320.34 requires the Crown to disclose certain information about the instrument and its testing.
- Identity and driving. Can the Crown prove you were the one operating the vehicle, particularly after a collision or when the police arrived later?
If a Charter breach is established, the court may exclude the evidence under section 24(2), though that isn’t automatic. The court weighs how serious the breach was, its impact on you, and society’s interest in a decision on the merits. Knowing these points helps you understand the process, but only a review of your disclosure can show whether any of them applies.
The “I Drank Afterward” Scenario
Section 320.14(5) sets out a narrow exception that addresses post-driving drinking. You are not guilty of the two-hour offence if all of the following are true:
- you consumed alcohol after you stopped operating the vehicle
- you had no reasonable expectation that you would be required to provide a sample
- your consumption is consistent with your blood alcohol concentration as determined under the Code and with having been below 80 at the time of driving
The second requirement is often the tricky one. Someone who had a minor collision and then drank at home while waiting for police to arrive may have difficulty showing they had no such expectation. This exception also calls for credible evidence, which often means receipts, witnesses and, in some cases, a toxicologist’s report.
Refusing Is Not a Way Out
A common piece of bad advice is that you should refuse to blow, as if the absence of a reading ended the case. It doesn’t. Section 320.15 makes it an offence to fail or refuse to comply with a demand, knowing that it has been made, without reasonable excuse. On a first offence, the minimum fine is $2,000, which is higher than the minimum fine for a low-end over 80 reading. Ontario also treats a refusal the same as a fail for the immediate 90-day suspension and 7-day impoundment.
A reasonable excuse might include a genuine medical inability to provide the sample, but that claim needs evidence. Saying you were scared or that you wanted a lawyer first will usually not be enough. If there is a real reason you could not provide a sample, tell the officer at the time and get a medical opinion soon after.
Penalties Tied to the Reading
For a first offence, the mandatory minimum fine depends on the number:
| Reading | Minimum fine |
|---|---|
| 80 to 119 mg | $1,000 |
| 120 to 159 mg | $1,500 |
| 160 mg or more | $2,000 |
Second and later offences bring mandatory jail, starting at 30 days and rising to 120 days for each later offence. A driving prohibition of one to three years is mandatory on a first offence, with longer terms on repeat offences, and Ontario’s licence suspension and interlock program applies on top of it. In some cases, the Crown may seek a higher sentence because of a high reading, a collision or children in the car.
What to Do If You Have Just Been Charged
Start a written timeline today: when you last drank, what you drank, when you stopped driving, when you were stopped, when the demand was made, when you called a lawyer, and when you blew. Include who else was there and any place where there might be video. Memories fade quickly, and small details about the clock can matter a great deal.
Keep any receipts. Don’t discuss the evening online. Mark your fingerprint and court dates, and take note of the interlock program’s 90-day requirement if keeping your licence is critical to your job. If you aren’t a citizen, raise your immigration status right away, since an over 80 conviction may be treated as serious criminality.
You can read how we approach these matters on our impaired driving and DUI page. For a review of your papers and the options available, feel free to reach out to our office. Over 80 charges are technical and every outcome depends on the evidence, so it helps to have someone go through the numbers with you line by line.