Over 80

Over 80 is a drunk driving charge where a person who has more than 80 mg of alcohol in every 100 mg of blood while driving can be convicted of over 80.

It is also an offence to have care and control of a motor vehicle when you have a blood alcohol content of over 80 mg.


The maximum penalty for an over 80 conviction is 5 years in jail and a mandatory minimum 1 year driving prohibition.


Because “over 80” is one of the most common charges laid, throughout the years lawyers have developed many defences for this drunk driving charge. Even if a person is found to have illegal blood alcohol content, the prosecutor must still prove this beyond a reasonable doubt.

Because the breath samples taken by the police are a search without a warrant there is a very strict and time sensitive process that must be followed by police in collecting evidence for a drunk driving offence.

How do I get convicted of the drunk driving charge of “over 80”?

The prosecutor must prove that a person is either driving or in care and control of a motor vehicle before that person is convicted of the drunk driving offence of “over 80”. Before someone is convicted of the drunk driving offence of “over 80” while having care and control of a motor vehicle, the prosecutor must show that s/he did something associated with the vehicle in circumstances that pose a risk of the vehicle being set into motion and a risk of danger to the general public.

My breathalyzer readings are over 80, shouldn’t I just plead guilty?

Pleading guilty is a decision to be made by the accused and only the accused. However, it is important that a person is very well informed about the consequences of pleading guilty by an experienced impaired driving lawyer beforehand.

Even if a person has breathalyzer readings over the legal limit, this must still be proved by the prosecution. The prosecutor must also prove that the evidence was collected in a way that did not violate a person’s Charter rights.

Many people feel that there is no way to defeat breathalyzer readings and plead guilty to an offence that they can be acquitted of simply because they did not have adequate legal advice. Pleading guilty should never be a first choice of a person charged with any offence, especially impaired driving.

A skilled defence lawyer will often exploit failures of the crown to prove a case and because of this, no one should plead guilty until s/he has received proper legal advice.

If a person decides to plead guilty to impaired driving or any

other drunk driving offence it is best to do so within 90 days of the offence as this could potentially reduce the penalty of a conviction.

A person that pleads guilty within 90 days is more likely to qualify for the early stream of the ignition interlock program and resume driving within 3 months.

What does it mean to have care and control of a vehicle?

Whether or not someone has care and control of a motor vehicle is determined on a case by case basis. If a person is found to be in the driver’s seat of a vehicle they are presumed to be in care and control of that vehicle . In order for an impaired person to be found guilty of having care and control of a vehicle, the prosecutor must show that that person deliberately did something that had a risk of putting the vehicle in motion in a situation that the vehicle would be a danger to the public .

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

Because both of these offences fall under drunk driving, they are often confused with each other. Over 80 is simply a technical charge that has to do with how much alcohol is in a person’s system while he or she is driving. A person can have more alcohol than the legal limit in his/her blood without being impaired or even showing any signs of impairment. Committing this offence is strictly scientific and uses a very objective standard.

In contrast, proving the offence of impaired driving does not have anything to do with the amount of alcohol in your blood, instead it is based on how the alcohol in your blood is affecting your ability to drive. A person’s ability to drive can be impaired even though s/he has an amount of alcohol below the legal limit in his/bloodstream. The drunk driving offence of impaired driving is proved by evidence of observation. Evidence of poor driving, lane straddling, and swerving often point toward impaired driving. Additionally, observations of the driver such as slurred speech, unsteadiness, bloodshot eyes, and alcohol scented breath are offered to prove impaired driving.

If a person is found guilty of both of these offences as a result of the same incident, the law only allows for him/her to be convicted of one of the offences due to the Kienapple principle.

If I am convicted of impaired driving, is there any way I can avoid the 1 year license suspension?
In some circumstances entering into the remedial measures program and then agreeing to have an ignition interlock device installed in a vehicle can reduce a person’s driving prohibition from one year to 90 days. The remedial measures program in Ontario is called “back on track”.

How do I fight the drunk driving charge of “over 80”?

If a person is charged with the drunk driving offence of “over 80” some of the available defences include:

1) An identity defence – This is a defence that is available when the prosecution cannot prove who was driving the car.

2) Bolus drinking defence – Sometimes a person does not have a blood alcohol content over 80 at the time s/he is driving, but because of recent drinking the blood alcohol content will be over 80 by the time a breathalyzer test is administered. If the prosecutor cannot prove a person’s blood alcohol content at the time of driving that person will be found not guilty of the offence.

3) Denial of rights to counsel – If a person is not properly given his/her right to speak to a lawyer, the evidence that the police obtained may be excluded from the trial.

4) Timing Defence – There are requirements that police act “forthwith” and “as soon as practicable” when asking for a sample of a person’s breath. Also there is a requirement that samples be obtained less than two hours after the offence is alleged to have happened.

5) Denial of other rights – The Charter or Rights and Freedoms lists many different rights available to everyone person in Canada. If someone’s rights under the Charter is violated a lawyer can ask the court to exclude any evidence obtained from a trial. Some of these rights include:

a. Right to trial on without unreasonable delay – Sometimes because of the court resources or other issues in the prosecutor’s office, a person’s matter will not go to trial within a reasonable time. If the delay in a matter being set for trial is an unreasonable delay, the court can order that the prosecution of the charge if prevented from continuing. This is called a stay of charges.

b. A right against police taking your breath sample without following the proper procedure – Police need reasonable grounds to believe that a person has consumed alcohol before they ask that person to provide a breath sample into an approved roadside screening device. This means that a police officer cannot ask for a person’s breath without first having some sign that that person has consumed alcohol. If this is done a court may find that that person’s rights were violated and the evidence obtained should be excluded from the trial.

c. A right to not to be stopped without police following the proper procedure – police cannot stop a person and search him/hersimply because they have a hunch that person is doing something illegal. However the Highway Traffic Act allows for police to stop a person randomly to check that the person is following driving related laws. If the police stop a person because they have a hunch that that person might be carrying drugs and then discover that the person is driving drunk, the evidence that is obtained may be excluded from the trial in some cases.

d. A right to have access to or copies of the evidence that police have collected in their investigation including video recordings and police notes. The law gives a person a right to “full answer and defence” and this cannot be accomplished without first seeing all the evidence that is being offered to convict a person. Failure to provide this evidence can result in the court preventing the prosecution from prosecuting charges. This is called a stay of charges.

e. A right against abuse and use of excessive force by police – If police are unnecessarily violent or harsh and humiliating in dealing with a person that is being detained or arrested, a court can find that that person’s rights to “life, liberty, and security of the person” have been violated and any evidence that was obtained as a result should be excluded from the trial.

Take the Next Step

If you or someone you know has been charged with any drunk driving offence, it is important that you retain an experienced lawyer to defend you. A charge like this can have life changing consequences. Lakin Afolabi is an experienced lawyer in London, Ontario who has successfully defended people charged with drunk driving offences. He can be reached 24 hrs a day on his mobile.

Lakin Afolabi LPC blog material is screened for authenticity as of the date of posting and accurately reflects the law to the best of our knowledge. Because the nature of the legal landscape is ever-changing we do not guarantee the future accuracy or completeness of this blog material past the date of posting. This material is not a replacement for advice received from our team of legal professionals. Any action you take upon the information on this website is strictly at your own risk.