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Charged, or someone you know
The roadside suspension applies before you see a courtroom, whatever happens to the charge later.
Over 80 Charges. The Reading Is Not The End Of It
A breath reading over the legal limit is powerful evidence, but the law attaches strict conditions to it. This page explains what the Crown must establish and where over 80 prosecutions are genuinely contested.
Section 320.14(1)(b) of the Criminal Code makes it an offence to have a blood alcohol concentration of 80 milligrams or more per 100 millilitres of blood within two hours after ceasing to operate a conveyance.
Over 80 Defence
80mg
Concentration Threshold
2Hours
Post-Driving Window
15Min
Minimum Interval Between Samples
20mg
Permitted Variance Between Results
Quick Answer
What does an over 80 charge require the Crown to prove in Ontario?
The Crown must prove you operated a conveyance and that within two hours after you stopped, your blood alcohol concentration was 80 milligrams or more per 100 millilitres of blood, contrary to section 320.14(1)(b). It does not need to prove your driving was affected. The reading is conclusive only if the statutory testing conditions in section 320.31 were met.
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THE CHARGE
What Over 80 Actually Means
Section 320.14(1)(b) of the Criminal Code prohibits having, within two hours after ceasing to operate a conveyance, a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood. The offence is complete on the concentration alone. The Crown does not have to prove that your driving was affected, that you appeared intoxicated, or that anyone was put at risk.
That framing changed in December 2018. Before then, the offence was measured at the time of driving, and the Crown relied on a presumption to relate a later reading back to that moment. Now the offence is measured over a two-hour window after driving ends, with a narrow exception in section 320.14(5) for a person who consumed alcohol after driving in circumstances where they had no reasonable expectation of providing a sample and where the alcohol consumed after driving accounts for the reading. That exception is technical and requires expert evidence to establish.
Over 80 is almost always laid alongside a count of impaired operation under section 320.14(1)(a). The two are prosecuted together but proved differently, and it is common for one to survive scrutiny while the other does not. Where a person is convicted of both arising from the same incident, the second is ordinarily stayed under the rule against multiple convictions.
THE EVIDENCE
How the Crown Proves the Reading
The Crown ordinarily proves the concentration by filing a certificate of a qualified technician. Section 320.31(1) makes the results conclusive proof of the blood alcohol concentration, but only if three statutory conditions were met before each sample was taken: a system blank test showing a result of not more than 10 milligrams, a system calibration check using an alcohol standard that produced a result within 10 per cent of the target value, and the taking of two samples at intervals of at least 15 minutes whose results do not differ by more than 20 milligrams.
Those are not defence arguments; they are the preconditions Parliament wrote into the statute. Where the records do not establish them, the conclusive proof provision does not operate and the Crown must prove the concentration some other way. Section 320.34 sets out what disclosure the Crown must give regarding the instrument, and further material can be sought where there is a reasonable likelihood it is relevant.
Requirement
What the record must show
Why it matters
Approved instrument
The device is on the approved list under section 320.39
Only approved instruments attract the statutory proof provisions
Qualified technician
Designation by the Attorney General is in force
An unqualified operator cannot certify the result
System blank test
Result of not more than 10 milligrams before each sample
Confirms no residual alcohol in the instrument
Calibration check
Within 10 per cent of the alcohol standard target value
Confirms the instrument is reading accurately that day
Two samples, 15 minutes apart
Times recorded on the certificate and in the notes
Guards against mouth alcohol and single-sample error
Agreement within 20 milligrams
The two results are consistent
A wider spread signals a problem with the testing
Timing of the demand
Made as soon as practicable and within the statutory window
Late demands may take the case outside section 320.31
DEFENCES
Where Over 80 Cases Are Contested
The first line of inquiry is the stop. If the detention was arbitrary contrary to section 9 of the Charter, or the search was unreasonable contrary to section 8, everything that follows may be challenged. Since mandatory alcohol screening under section 320.27(2) removed the need for a reasonable suspicion before a roadside demand, the lawfulness of the stop itself has become the more important question.
The second is the right to counsel. Section 10(b) requires that a detained person be informed of the right without delay, be given access to free duty counsel, and be given a reasonable and private opportunity to exercise it before the state gathers evidence from them. A rushed call, a call made within earshot of officers, an unexplained delay in facilitating contact, or a failure to follow up on an expressed desire to speak with a specific lawyer all arise regularly in real files.
The third is the testing itself, examined against the statutory conditions above. The fourth is delay. If the case has not moved, section 11(b) and the ceilings set in R. v. Jordan may end it, and time attributable to the Crown or to institutional scheduling counts against those ceilings.
Where a breach is proven, exclusion under section 24(2) is not automatic. The court applies R. v. Grant and weighs the seriousness of the conduct, the impact on the accused's protected interests, and society's interest in adjudicating the case on the merits. Some breaches lead to exclusion; some lead to a different remedy; some lead to none.
A word about the numbers
Readings only slightly over the limit are not automatically more defensible, and very high readings are not automatically indefensible. The legal issues are the same. What a higher reading changes is the mandatory minimum fine on a first offence, which rises to $1,500 at 120 milligrams and $2,000 at 160 milligrams, and the weight the reading carries at sentencing.
CONSEQUENCES
Sentence, Licence and Interlock
Because section 320.19 prescribes mandatory minimum penalties, a discharge under section 730 is not available for an over 80 conviction. A first finding of guilt attracts at minimum a $1,000 fine and a driving prohibition of not less than one year. A second attracts a minimum of 30 days imprisonment and a two-year prohibition; a third or subsequent attracts a minimum of 120 days and a three-year prohibition. Ontario then imposes its own suspension under the Highway Traffic Act, requires the Back on Track education or treatment stream, and places an ignition interlock condition on the licence.
Ontario's reduced suspension and interlock streams can shorten the period a driver is off the road, but they operate on defined timelines and require early steps. Insurance consequences are separate again and are set by the insurer, not the court. None of this is a reason to plead guilty quickly; it is a reason to get advice before deciding anything.
THE COURT PROCESS
What Actually Happens on Each Date
1
First appearance
Administrative only. Disclosure is requested or picked up. No evidence is heard, no plea is required, and counsel can usually attend for you under a designation filed under section 650.01 of the Criminal Code.
2
Disclosure review
Counsel reviews the certificate, the instrument records, the officer notes and the video against the statutory requirements, and identifies whether there is an issue worth litigating.
3
Crown pre-trial
Counsel meets the assigned Crown, raises the identified gaps, and explores whether the file resolves or must be tried. Additional disclosure is often requested at this stage.
4
Judicial pre-trial
A judge gives a candid assessment of the issues, estimates trial length, and helps narrow what genuinely needs to be litigated. Trial dates are usually set at or after this stage.
5
Charter application, if any
A written application and factum are filed within the time the court directs, setting out the alleged breach and the remedy sought under section 24(2).
6
Trial
The officers testify and are cross-examined. The Charter application is usually argued as part of the trial rather than separately, and the ruling and the verdict may be delivered together.
Most of this happens without the client needing to be present. You must attend your trial and any plea or sentencing, but the administrative dates can generally be covered by counsel, which matters when a case runs for the better part of a year.
BEYOND THE COURTROOM
Work, Insurance and Travel
For many people the criminal penalty is not the largest consequence of an over 80 conviction. If your work requires driving, a one-year prohibition and an interlock condition can end a job. Commercial drivers face additional consequences under the Highway Traffic Act and its regulations, and a conviction is reported to the driving record regardless of the class of licence held. Employers in regulated industries and those requiring fleet insurance frequently have their own reporting requirements.
Insurance is priced by the insurer, not the court. An impaired driving or over 80 conviction is treated as a major conviction and typically affects premiums for several years, and some insurers decline to renew altogether. There is no judicial remedy for that, which is one reason a defensible charge is worth defending rather than resolving quickly for convenience.
Travel is a separate question. United States admissibility is decided under American law by United States border officers. A single conviction can lead to further questioning, and a Canadian record suspension obtained later does not bind them. Immigration consequences under the Immigration and Refugee Protection Act also arise for permanent residents and temporary residents, since impaired operation is punishable by more than ten years by indictment in its aggravated forms. Anyone who is not a Canadian citizen should raise their status with counsel before any plea is entered.
WHAT COUNTS AS OPERATING
Care and Control Without Driving
People are regularly charged when the vehicle never moved. Section 320.11 of the Criminal Code defines operate, for a motor vehicle, as meaning to drive it or to have care or control of it. A person sitting in a parked car with the keys accessible, or asleep in the driver's seat, can be found to have had care or control even though there was no intention to drive. The rationale is the risk that the vehicle could be set in motion, whether deliberately or unintentionally.
Section 320.35 creates a presumption: a person occupying the seat or position ordinarily occupied by a person who operates the conveyance is presumed to have had care or control unless they establish that they did not occupy that seat for the purpose of setting it in motion. That presumption can be rebutted, and the two questions that matter are whether the person occupied the seat for a purpose other than driving, and whether in the circumstances there was a realistic risk of danger.
This is why an alternate plan matters so much in these cases. Evidence that a taxi or rideshare had been booked, that a friend was on the way, that the person had arranged to sleep in the vehicle in a location where they intended to remain, or that the keys were deliberately placed out of reach, all bear directly on the analysis. If any of that applies to your situation, tell counsel at the first meeting, and preserve the booking records or messages that support it before they are deleted.
ACTING FOR YOU
A Practical Assessment
We ask for the full disclosure package: officer notes, the certificate of analysis, the instrument printout and maintenance logs, the booking video, the call log for counsel access, and any in-car video. We read it against the statutory checklist and tell you frankly whether there is an issue worth litigating or whether the file is better resolved. Some over 80 cases are genuinely defensible. Some are not, and you are entitled to hear that plainly rather than pay for a trial that was never going to work.
Over 80 matters may be conducted by Lexaltico LLP or referred to experienced criminal defence counsel within our LexKonnect consortium where the trial requirements or scheduling call for it. Any referral arrangement is disclosed to you in writing before it takes effect and complies with Rule 3.6-6.1 of the Law Society of Ontario's Rules of Professional Conduct. Your interests decide who carries the file.
Common Questions
Frequently Asked Questions
What does an over 80 charge require the Crown to prove in Ontario?
The Crown must prove you operated a conveyance and that within two hours after you stopped, your blood alcohol concentration was 80 milligrams or more per 100 millilitres of blood, contrary to section 320.14(1)(b). It does not need to prove your driving was affected. The reading is conclusive only if the statutory testing conditions in section 320.31 were met.
Can a breathalyzer result be wrong?
Approved instruments are reliable when properly maintained and correctly operated, which is why the Code requires a system blank test, a calibration check against an alcohol standard, two samples at least fifteen minutes apart, and agreement between them within twenty milligrams. Where the records do not establish those conditions, the statutory proof provision does not apply.
What is the two-hour rule?
Since December 2018 the offence is committed if the prohibited concentration existed at any point within two hours after you ceased operating. There is a narrow exception in section 320.14(5) for drinking after driving where you had no reasonable expectation of being tested and the post-driving alcohol accounts for the reading, but it requires expert evidence.
Can I get a discharge for an over 80 conviction?
No. A discharge under section 730 of the Criminal Code is unavailable where the offence carries a minimum punishment, and section 320.19 prescribes minimum penalties for impaired operation and over 80. That is one reason these charges are worth reviewing carefully before any plea is entered.
How is over 80 different from impaired driving?
Impaired operation under section 320.14(1)(a) requires proof that your ability to operate was impaired to some degree by alcohol or a drug. Over 80 under section 320.14(1)(b) requires only the concentration. They are usually charged together, proved by different evidence, and a person may be acquitted of one and convicted of the other.
Does the 90-day roadside suspension count toward my one-year prohibition?
No. The 90-day administrative suspension is imposed by Ontario under the Highway Traffic Act and is separate from the criminal driving prohibition imposed on conviction under section 320.24. They are different measures under different statutes and the administrative period is not credited against the criminal one.
Should I get the disclosure before deciding what to do?
Yes. No honest assessment is possible without the officer notes, the certificate of analysis, the instrument records, the video and the counsel access log. Nothing is decided at your first appearance, and requesting disclosure is the ordinary first step defence counsel takes.
What happens if I am found not guilty of over 80 but guilty of impaired?
You are sentenced on the impaired operation count, and the same mandatory minimum penalties under section 320.19 and driving prohibition under section 320.24 apply. The practical consequences are largely the same, which is why both counts usually need to be addressed rather than only the one supported by the reading.
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If you contact us
If you are in danger
If you or a child are in immediate danger, call 911.
This website is not an emergency service. Enquiries sent through a form here are read during
business hours and a reply may take up to one business day.
Using this website, submitting a form, sending an email or speaking to us on the telephone does
not make us your lawyers. That relationship arises only when the firm has
confirmed in writing that it has agreed to act, a conflict search has been completed, and a
retainer has been signed.
Confidentiality of enquiries
Do not send confidential or sensitive information through this website or by email until we have
confirmed in writing that we can act for you. Information sent before that point is
not treated as confidential and may prevent us from acting for you, or for
someone else, in a connected matter.
Response times
We aim to reply within one business day. Contacting us does not guarantee a reply within any
particular period, does not oblige the firm to act, and does not stop, extend or satisfy
any limitation period, filing date or court deadline.
Our telephone line
Our line is answered 24 hours a day, every day of the year. Outside office hours calls are taken
by our intake service, who record your details and pass them to the firm. A lawyer responds during
the next business day, or sooner if the matter is urgent. Answering the telephone is not the same
as giving legal advice, and no relationship arises from that call.
Who we are and how we are regulated
Law Society of Ontario
Lexaltico LLP is regulated by the Law Society of Ontario under the
Law Society Act, R.S.O. 1990, c. L.8. All lawyers practising in
Ontario through the firm are members in good standing.
Law Society of Alberta
Alberta matters are handled by lawyers licensed with, and in good standing with, the
Law Society of Alberta. A lawyer licensed in Ontario is not thereby licensed in
Alberta, and the reverse is also true.
Immigration regulation
Immigration consulting is provided by Regulated Canadian Immigration Consultants
in good standing with the College of Immigration and Citizenship Consultants under the
College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29,
s. 292.
Lawyers, paralegals and consultants
Not everyone at the firm is a lawyer.
Licensed paralegals in Ontario may act only within the scope the Law Society
permits, which does not include most family, estate or criminal matters.
Immigration consultants are regulated by the College, not by a law society,
and are not lawyers.
Law clerks and managers support files but do not give legal advice.
Each page and biography states which applies. Ask at the outset who will handle your matter and
under which licence.
Languages
We serve clients in thirteen languages. Every page of this website is written and published in
English. Where anything is provided in another language, the English
version governs in the event of a difference. If you need an interpreter, tell us when
you book and we will arrange one.
Fees
The initial assessment
The complimentary 15 minute initial assessment is a brief introductory
conversation. It does not include a review of your documents and does not constitute
legal advice.
The firm charges a fee for substantive consultations, including in civil litigation,
criminal defence and immigration matters. The firm may waive that fee at its discretion.
Any fee is disclosed in advance and credited in full toward your account if you retain the
firm.
Referral fees
Where we refer a matter to another firm, including through LexKonnect, we comply with Rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct. Any referral fee is set out in the Law Society’s standard referral agreement, signed by you before the referral proceeds, and no fee is payable to us unless and until the receiving firm has been paid for its work. You are never obliged to accept a referral and are free to retain any firm you choose. No referral arrangement affects the independent professional judgment of any lawyer at this firm.
What is published on this site
Calculators and estimators
They produce estimates from what you type and cannot know the rest. They do not
account for the terms of your contract, statutory exceptions, or the discretion a court will
apply. Do not make a decision on a number produced by a calculator.
Past results
Any outcome described happened on its own facts, before its own decision maker,
under the law as it stood at the time. Past results do not predict or guarantee the result of any
other case.
Reviews and testimonials
Reviews shown here are written by third parties and published on platforms we do not control. Each
describes one person’s experience of one matter. They are not a promise, a
prediction or a guarantee about any other matter.
Links to other websites
This site links to regulators, courts, government sources, professional associations and social
platforms, all operated by others. We do not control them, we are not responsible for
their content or accuracy, and a link is not an endorsement.
Other notices
Limitation periods
Failure to start a proceeding within the applicable limitation period may permanently bar
your claim. In Ontario the general period is two years from discovery
under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
Shorter periods apply to many claims. Seek advice promptly. Nothing on this website extends a
limitation period.
Accessibility
We aim to meet the Accessibility for Ontarians with Disabilities Act
and WCAG 2.1 Level AA. If any part of this site prevents you from reaching us, telephone
+1 416 333 6200 or write to
hello@lexaltico.com and we will provide the information
in another format, at no charge.
