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Operation of a Motor Vehicle with BAC Over or Equal to 80 (Over 80)
Unlike impaired driving, the offence of “over 80” does not require proof of impairment of
any kind, only proof that the driver had a concentration of alcohol in their blood exceeding
80 milligrams of alcohol in one hundred millilitres of blood. This alcohol concentration
reading is usually determined from an analysis of breath samples obtained by police and
processed with a breathalyser machine capable of providing such results. These results
can also be obtained by testing a sample of the driver’s blood.
A person under investigation for being over 80 does not get to choose whether they will
provide a breath sample or a blood sample. Only a police officer can choose whether to
demand a blood sample. Moreover, a blood sample may only be sought by the officer if the
officer believes that the person may be incapable of providing a breath sample by reason
of his or her physical condition, or it would be impractical to obtain a breath sample in all
the circumstances. Put differently, a blood sample to determine the concentration of
alcohol in a person’s body is a process of last resort.
Refuse to blow or refuse to provide a breath sample
The offence of refusing to provide a breath sample, either for the roadside screening device or an approved breathalyser machine at the police station is another drinking and driving offence. The consequences of a conviction on only this charge is essentially the same as a conviction for impaired driving or over 80, namely, a criminal conviction, driving prohibition, license suspension and the same insurance consequences. A person convicted of refusing to provide a breath sample may also be convicted of driving while impaired.
The offence of refusing to provide a breath sample, either for the roadside screening device or an approved breathalyser machine at the police station is another drinking and driving offence. The consequences of a conviction on only this charge is essentially the same as a conviction for impaired driving or over 80, namely, a criminal conviction, driving prohibition, license suspension and the same insurance consequences. A person convicted of refusing to provide a breath sample may also be convicted of driving while impaired.
In order to be convicted of failing or refusing a breath sample, the prosecutor must prove
beyond a reasonable doubt that the officer made a valid and lawful demand for the breath
sample, that the defendant failed or refused to produce the required sample of breath and
that the defendant intended to produce that failure. Most breath refusal cases will turn on
whether the officer had a sufficient basis to make the breath demand and whether they
intentionally failed to provide a breath sample. Quite often, a person may fail to provide a
sample due to a medical reason such as an injury or a breathing disorder such as Asthma
which may make it challenging to comply with the officer’s demand for a breath sample.
Approved Screening Device Demand:
In Canada, provincial driving laws, such as the Ontario Highway Traffic Act, grant police the authority to stop and investigate drivers for potential drinking and driving violations. Police may establish checkpoints, known as R.I.D.E. (Reduce Impaired Driving Everywhere), to halt vehicles and assess for signs of impaired driving.
In Canada, provincial driving laws, such as the Ontario Highway Traffic Act, grant police the authority to stop and investigate drivers for potential drinking and driving violations. Police may establish checkpoints, known as R.I.D.E. (Reduce Impaired Driving Everywhere), to halt vehicles and assess for signs of impaired driving.
The power to investigate a motor vehicle driver's sobriety doesn't necessitate the officer
suspecting that the person has consumed alcohol or is impaired by alcohol or drugs at the
start of the investigation. Anyone can be subject to an investigation for drinking and
driving. While the law permits the stopping of an individual for such an investigation, it
does not authorize an officer to demand a roadside breath test without additional
grounds.
To require a person to undergo a roadside breath test, the individual under investigation
must be operating or "in care or control" of a motor vehicle at the time of the
investigation, and the officer must reasonably suspect the person has alcohol in their
system. This suspicion can arise if the person admits to recent alcohol consumption or
displays visible signs of impairment. Even the odor of an alcoholic beverage from the
driver's mouth may be sufficient to initiate a roadside breath test.
Once the officer reasonably suspects alcohol consumption, they may request the driver to
provide a breath sample for analysis using a specialized device. In some cases, the failure
of the police to establish reasonable suspicion may serve as a defense to an over 80 or
refusal to provide a breath sample charge, as an unlawful breath demand could invalidate
subsequent test results.
The results of the roadside screening test may indicate a "pass," "warn," or "fail." The
machine is calibrated to register a failure when a person has over 100 milligrams of
alcohol in 100 milliliters of blood. Failing the roadside test is not admissible evidence in a
person's trial for an over 80 charge.
Evidence of a failed test does not establish the actual alcohol level in the person's blood; it
is used to justify a further demand for a breath sample into an "approved instrument"
capable of providing an accurate blood alcohol level reading. Once a driver fails the
roadside breath test, the officer is permitted to arrest the driver for the offense of driving
with over 80 mg of alcohol in their body. An arrest for an over 80 charge may also lead to
an arrest for impaired driving if the driver exhibits clear signs of impairment in their
driving behavior or physical observations. Subsequent tests at the police station may be
used as evidence in their trial for a drinking and driving
Can I speak to a lawyer before I give a breath sample?
Upon arrest, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their legal situation prior to providing a breath sample at the station. The police have an obligation to advised a detained individual of the availability of a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. If the police fail to advise a person under arrest of these constitutional rights, or fail to provide the person under arrest an opportunity to contact counsel, the failure to do so may result in the exclusion of the defendant’s alcohol level readings obtained at the police station. This exclusion of evidence would likely result in an acquittal at trial.
Upon arrest, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their legal situation prior to providing a breath sample at the station. The police have an obligation to advised a detained individual of the availability of a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. If the police fail to advise a person under arrest of these constitutional rights, or fail to provide the person under arrest an opportunity to contact counsel, the failure to do so may result in the exclusion of the defendant’s alcohol level readings obtained at the police station. This exclusion of evidence would likely result in an acquittal at trial.
The right to consult with counsel is not an absolute right at the time of a roadside demand
for a breath sample. Recent case law developments suggest that in some circumstances, a
person required to provide a roadside breath sample may have a right to consult with
counsel prior to providing a breath sample if the roadside breath testing machine is not
readily available and there will be a delay in getting the machine to the person under
investigation. In some instances, the failure to permit consultation with a lawyer prior to
providing the roadside sample may result in the exclusion of the sample and any
subsequent evidence.
Each situation is fact specific. An experienced criminal lawyer who regularly defends
drinking and driving cases will be able to provide you with an opinion on whether or not
your constitutional rights have been violated by the police during the course of their
investigation.
What are the consequences for a drinking and driving conviction?
The punishments for operation while impaired, driving with a blood-alcohol level over the legal limit and failure to comply with a demand to provide a breath or blood sample are all identical. These are hybrid offences, and whether they are prosecuted by indictment or summary conviction there is a minimum fine of $1,000 for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for each subsequent offence. If the Crown prosecutes by indictment, the maximum term of imprisonment is five years, and a maximum term of 18 months’ imprisonment is prescribed on summary conviction. If bodily harm is caused, no matter which offence is charged, the offence is an indictable one with a maximum term of 10 years’ imprisonment. If death is caused, the offence is indictable and the maximum term is life imprisonment.
The punishments for operation while impaired, driving with a blood-alcohol level over the legal limit and failure to comply with a demand to provide a breath or blood sample are all identical. These are hybrid offences, and whether they are prosecuted by indictment or summary conviction there is a minimum fine of $1,000 for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for each subsequent offence. If the Crown prosecutes by indictment, the maximum term of imprisonment is five years, and a maximum term of 18 months’ imprisonment is prescribed on summary conviction. If bodily harm is caused, no matter which offence is charged, the offence is an indictable one with a maximum term of 10 years’ imprisonment. If death is caused, the offence is indictable and the maximum term is life imprisonment.
A minimum fine consequence for any drinking and driving offence means that a person
convicted of any of these offences will have a permanent criminal record. All drinking and
driving offences carry a mandatory license suspension of at least 12 months.
Given the numerous consequences of a drinking and driving conviction, it is important to
consult with a lawyer in order to identify possible defences to the allegations.
For further information on Drinking and Driving related charges and other driving related
offences, contact us now.
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