What’s the difference between “over 80” and impaired driving?

If you have been drinking or are found to have been under the influence of drugs while driving, you can be charged with “over 80,” impaired driving or, in some cases, both. There’s a great deal of confusion as to how these charges differ, so in this article, I will clarify the technical differences between the charges, associated penalties, and how each charge is proven in court. I will also explore the advantages of working with an experienced criminal defence lawyer when facing these types of charges.

Being convicted of an alcohol- or drug-related driving charge can derail a person’s life: you may face jail time, significant fines, licence suspension and severe limitations in terms of future employment opportunities.

When I work with clients who are facing impaired driving or “over 80” charges, the advice I give is always tailored to the specifics of their case, with a successful outcome in mind.

I start by getting a detailed account of what happened from the person who’s been charged, so I have a clear understanding of how the events unfolded and the timeline they occurred in. Next, I review all the evidence –– police reports, witness statements and results from the breathalyzer or Intoxilyzer, so I can understand if proper procedures were followed at each step along the way. If they weren’t, I could make a case to have charges withdrawn or reduced. In a recent post, I explored the various defences that can be used when facing alcohol-related driving charges.

It’s important to recognize that not all cases have the prospect of a solid defence, and in some instances, a person’s only option is a guilty plea. Even in these circumstances, a skilled lawyer can negotiate with the prosecutor and the judge to ensure the sentence is within mandatory minimums and the lowest one possible.

Substances causing impairment

The Criminal Code prohibits driving while impaired to any degree by drugs, alcohol, or a combination of both. Penalties for this offence range from a mandatory minimum fine to life imprisonment, depending on the severity of the offence. I have included more detailed information in the penalties section of this article.

The prohibited blood-alcohol concentration (BAC) is 80 milligrams or more (mg) of alcohol per 100 millilitres (ml) of blood.

When it comes to cannabis, there are two prohibited levels for THC, the psychoactive component of cannabis: having between 2-5 nanograms (ng) of THC per ml of blood, and the more serious offence of having 5ng of THC or more per ml of blood.

Having any detectable amount of LSD, psilocybin, psilocin (commonly known as mushrooms), ketamine, PCP, cocaine, methamphetamine or 6-mam (a metabolite of heroin) in your system within two hours of driving is also illegal.

Difference between “over 80” and impaired driving

Impaired driving and “over 80” are two distinct offences under the Criminal Code, and the main difference is how the charges are proven in court.

Driving with more than 80 mg of alcohol for every 100 ml of blood is commonly referred to as an “over 80” charge. Police will lay an “over 80” charge after a driver has provided a breath sample by blowing into an approved device (breathalyzer or Intoxilyzer) that shows a reading exceeding the legal limit.

In defending this charge, I would examine the evidence, including the defendant’s account of what happened, police reports, toxicology results, the person’s history of impaired driving and any videos that were taken at the scene. I need to understand if the police followed proper procedure or if the defendant’s Charter rights were violated at any point. I would also consult a toxicologist to examine whether the evaluation tests were performed correctly and analyzed and that the instruments were in proper working order. If errors have been found at any point in this process, we can have the readings excluded, and the charges may be dropped.

It’s worth highlighting that the courts have recognized that the instruments used to analyze drug or alcohol impairment are not infallible and can sometimes malfunction or produce inaccurate readings.

An impaired driving charge is laid when the driver’s behaviour indicates they are not in control of their actions. Witnesses may report they were weaving in and out of traffic, their speech may be slurred, or they have trouble balancing. They may be under the legal limit, but their reactions are compromised, either by alcohol or drugs, giving the police officer reasonable grounds to conclude they are, indeed, impaired.

Consider a person who has had their first drink of alcohol. They might be “falling over drunk,” but their readings could be very low –– 0.03 or 0.04. It’s clear they don’t have control over their actions, and we wouldn’t want that person driving. In that scenario, they would be charged with impaired driving, but not “over 80.”

Conversely, someone who drinks every day may not show obvious signs of impairment when stopped by police, but after giving a breath sample, their readings might be astronomically high. The science shows that when people have more than 80 mg of alcohol per 100 ml of blood, their reaction times are lower, even if they appear to be in full control.

Proving an impaired driving charge in court typically comes down to the testimony of the police officer, witnesses and the driver. If the witness observed the driver crossing the centre line or otherwise appearing not to be in control of the vehicle and called police to report it, judges are more inclined to believe that witness’s testimony.

Seek help to mitigate penalties

If you’re facing an impaired driving charge, you can help your case by voluntarily seeking treatment for drug or alcohol dependency. It’s essential to demonstrate to the court that you acknowledge the gravity of the situation. Attending Alcoholics Anonymous or Narcotics Anonymous meetings is important and will carry some weight with a judge, but attending a rehabilitation treatment program will have a more significant impact on the sentence you receive.

The courts are not forgiving of impaired drivers who cause bodily harm to others. Those who are found guilty often face significant jail time, even when it’s their first offence.

In a recent case, I represented a client who was charged with impaired driving causing bodily harm after he struck another vehicle driven by a man who also had his wife and their young child in the car. The child was not injured, but the woman sustained a severe concussion, as did the man, and he also required numerous surgeries for a broken jaw.

My client enrolled in a residential rehabilitation treatment program for alcohol abuse and was able to demonstrate to the court he regretted his actions and was doing everything he could to address his problem. I successfully negotiated a reduction in his sentence from 1.5 years to 10 months.

In another case, my client was charged with impaired driving after he was observed weaving in and out of the lane on a country road. This case was complex, but I was able to establish that my client was lost and checking Google maps on his phone to try and figure out where he was. After numerous discussions with the Crown and the judge, we negotiated a guilty plea to the lesser offence of careless driving under the Highway Traffic Act. My client lost his licence and received a fine but avoided a criminal record.

Penalties for a first offence, repeat offenders

If it’s your first offence and your BAC is 0.05 or higher, or you fail a roadside sobriety test or violate the zero-tolerance requirements for young, novice and commercial drivers, you will face a three-day licence suspension and a $250 fine under the Highway Traffic Act.

If it’s your second provincial offence within five years, you can expect even harsher treatment. Your licence will be suspended for seven days; you’ll have to pay a $350 fine and will have to attend a mandatory education program.

For third and subsequent offences, drivers will lose their licence for 30 days and have to pay a $450 fine. They will also have to attend a mandatory treatment program, use the ignition interlock device for at least six months once their licence is reinstated and undergo a medical evaluation to determine if they meet the requirements for driving in Ontario.

First offences that result in a criminal conviction –– BAC over 80, refusal to provide a breath sample, or driving while exceeding the legal blood-drug limit –– will result in a minimum one-year licence suspension and a criminal record. Drivers will also have to pay a minimum fine of $1,000 and be required to install the ignition interlock device for at least one year. A person who refuses to provide a roadside breath sample will be treated the same as someone that recorded a BAC of more than 0.08.

On the second criminal offence, a driver would also likely receive jail time, which, depending on the circumstances, I may be able to negotiate with the Crown so that he or she can serve their time on the weekend when it won’t interfere with their job. There are huge repercussions for those convicted a third time, usually involving at least four consecutive months of jail time.

In March of this year, an Ontario man received a $2,200 fine and a one-year driving ban after pleading guilty to impaired driving. The man was previously convicted of impaired driving in 1984, and the judge condemned his “shocking” and “selfish decision,” adding a $660 victim fine surcharge.

In most cases, when a driver receives a second conviction driving, penalties under the Criminal Code come into play, including a minimum of 30 days in jail. In some cases, I have been successful in negotiating with the Crown not to file notices on the previous conviction so that the mandatory minimums don’t apply.

Sometimes a person can reduce the penalties they incur by attending a rehabilitation program for drug or alcohol treatment. In a recent case, my client was charged with his third impaired driving offence. He volunteered to enter a day program in Ottawa and was able to serve his jail sentence on weekends, which allowed him to maintain his job.

Criminal convictions

No matter what age you are or what licence you possess, if you are convicted criminally of impaired driving in court, you can face fines and jail time in addition to:

First offence

  • Licence suspension of at least one year
  • You must attend a mandatory education or treatment program
  • Requirement to use an ignition interlock device for at least one year
  • You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Second offence within 10 years

  • Licence suspension of at least three years
  • You must attend a mandatory education or treatment program
  • Requirement to use an ignition interlock device for at least three years
  • You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Third or more offence within 10 years

  • Lifetime licence suspension, which may be reduced after 10 years if you meet certain criteria
  • You must attend a mandatory education or treatment program
  • Requirement to use an ignition interlock device for at least six years
  • You will need to undergo a mandatory medical evaluation to determine whether you meet the requirements for driving in Ontario

Choose experienced legal counsel

Your best chance of beating an impaired driving or “over 80” charge is by working with a lawyer who understands the intricacies of the law and how to negotiate with the Crown to minimize the impact of an offence. Impaired driving charges are very technical, and penalties are assessed under either provincial regulations or the Criminal Code.

Dealing with the police and the criminal justice system in cases involving impaired driving charges is a serious matter that requires a skilled and experienced legal advocate. I have successfully represented numerous clients by having the charges reduced or dismissed. If you have been charged with impaired driving, call me for a free consultation.

Filed Under
Impaired driving