Impaired Driving

Over 80

[Updated 2014-04-09]

The offence of Over 80 requires the Crown to prove beyond a reasonable doubt that your Blood Alcohol Concentration (B.A.C.) was over the legal limit (80 mgs of alcohol/ 100 mls of blood) while you were either operating or in care or control of a motor vehicle. In order to prove this charge, the Crown will usually rely on an analysis of samples of your breath taken from you during breath tests conducted by a qualified Intoxilyzer technician using an approved instrument (normally an Intoxilyzer 8000C). In rare circumstances, a blood sample will be taken if there is some reason why you are unable to provide breath samples. You do not have the right to choose which test you want to take.

Over 80 is a very technical charge and there is plenty of room for error by the police both during their investigation and later while testifying at your trial. From the time you are first observed to be driving or in care or control, through to the breath tests and right up until you are released from police custody, there is a very specific and detailed protocol that the police must follow. Your defence lawyer’s job is to expose mistakes made by the police and sometimes even by the Crown Attorney conducting your trial. In order to maximize your chances of success, you need a trial lawyer experienced in conducting drinking and driving cases.

Although there are countless issues that may come up throughout your case, there are generally three lines of defence for an Over 80 charge:

1) Establish that one or more of your rights under the Canadian Charter of Rights and Freedoms have been breached and that as a result, the breath readings should be excluded from evidence or, in some circumstances, that the charges against you should be stayed (meaning that the charges against you will not be permitted to proceed).

Examples of the types of Charter breaches that could result in your breath tests being thrown out are:

a) Your right to be free from unreasonable search and seizure (section 8 of the Charter)
Remember that you were forced to give self-incriminating evidence in the form of breath or blood samples and the Crown Attorney will need to rely on this evidence in order to prove an Over 80 case. In order for the taking of your breath or blood to be lawful, the police had to have the requisite grounds to demand that you provide your breath or to seize your blood. An unlawful strip search could lead to the charges against you being stayed.

b) Your right to not be arbitrarily detained (section 9 of the Charter)

When you are in police custody, you are being deprived of your liberty. The police had to have a lawful reason to stop you and then to detain you throughout the course of their investigation.

c) Your right to counsel (section 10 of the Charter)
Except in very specific circumstances, you have the right upon arrest or detention to be immediately advised of your right to speak with a lawyer of your choice without delay and to speak to this lawyer in order to obtain comprehensible legal advice.

d) Your right to have your trial held within a reasonable time (section 11(b) of the Charter)

There are a number of issues that can arise in relation to these and other rights guaranteed under the Charter.

2) Raise a reasonable doubt regarding compliance with the Criminal Code.

Because no one took a sample of breath or blood from you at that time you were actually driving or in care or control of a motor vehicle, it is impossible for the Crown Attorney to prove you were over the legal limit at the operable time without one of two things:

a) Expert evidence relating the breath test results taken at the police station (or blood tests usually taken at a hospital) back to the time of driving. This expert evidence will rely on a number of assumptions that will have to be proven beyond a reasonable doubt.

b) Reliance on an evidentiary shortcut contained in the Criminal Code of Canada that requires a judge to conclude that the breath test results are an accurate reflection of your B.A.C at the time you were driving or in care or control of a motor vehicle. In order to rely on this shortcut, the judge must be satisfied that a number of prerequisites were proven beyond a reasonable doubt. It is your lawyer’s job to raise a reasonable doubt with respect to the proof of any of these prerequisites

If the breath or blood test results cannot be related back to the time of driving or care or control, there is no evidence of what your B.A.C was at the operable time and no case against you.

3) Establishing “Evidence to the Contrary” and thereby raising a reasonable doubt that the breath or blood test results are an accurate representation of your B.A.C at the time your were driving or in care or control. Evidence to the Contrary is normally presented in the following ways.

a) The “Last Drink Defence”
This defence involves raising a reasonable doubt with respect to whether you were over the legal limit at the time of driving without questioning the accuracy of the breath test results. This would be the case in a situation where you consumed a significant amount of alcohol in a short period of time just before driving (what is known as “bolus drinking”) so that at the time of driving, the alcohol had not yet been absorbed into your blood.

b) Challenging the accuracy of the breath test results:
This defence involves calling evidence to the contrary in order to raise a reasonable doubt regarding the accuracy of the breath test results.

If your first breath test took place within two hours of the time you were found to be driving or in care or control of a motor vehicle, the evidence to the contrary must raise a reasonable doubt that either the breath testing instrument was not functioning properly or that the breath technician did not operate it properly.

If the first test occurred outside of two hours from when you were found to be driving or in care or control, there is no legal requirement to show that there was anything wrong with the breath testing process. In these circumstances, you could raise a reasonable doubt as to the accuracy of the breath test results by calling evidence of your alcohol consumption leading up to the time you were observed to be driving or in care or control of a motor vehicle. Evidence of your consumption and body weight, combined with the evidence of an expert toxicologist who would calculate your Blood Alcohol Concentration (BAC) at the operable time based on this evidence, could raise a reasonable doubt if this evidence is consistent with your BAC being under the legal limit at the operable time.