Over 80 Charges in Ontario

The short answer

Over 80 means having a blood alcohol concentration of 80 mg or more per 100 mL of blood within two hours after you stopped driving, as set out in s. 320.14(1)(b) of the Criminal Code. People often call this limit 0.08, because it refers to a blood alcohol concentration of 0.08 percent.

The Crown does not need to prove that you were impaired, because the reading itself is the offence. You can feel completely fine and still be charged. That is why over 80 cases usually turn on how the samples were taken and recorded, rather than on how you appeared to the officer. See our impaired driving page for an overview.

The two-hour rule

The test is your blood alcohol level within two hours after driving, not at the exact moment you were driving. This rule came in with the 2018 changes to the Criminal Code.

In practice, breath tests at the station often happen an hour or more after the stop. The two-hour window means those readings can still be used, as long as the samples were taken properly and within the time allowed.

The exception for drinking after driving

There is a narrow exception for people who drank after they stopped driving (s. 320.14(5)). It applies only if all of the following are true:

• Drinking after driving: You drank alcohol after you stopped driving.
• No reason to expect a test: You had no reason to expect that police would ask you for a sample.
• Consistent reading: What you drank after driving fits your reading and shows you were under 80 while driving.

The exception usually does not apply after a collision or after contact with police, when a test was likely. For example, someone who parks, goes inside and has drinks at home hours later, with no reason to expect police, may fit. Someone who leaves a crash scene and drinks at home will not.

How breath testing works

At the station, a qualified technician takes two breath samples on an approved instrument. The samples must be taken at least 15 minutes apart, and the instrument runs its own checks before and after each sample. The results are printed on a test record, and the lower of the two readings is usually the one that matters. If any of these steps was not followed, the reliability of the result can be challenged.

Minimum fines

For a first offence, s. 320.19 sets minimum fines based on the reading:

• 80 to 119 mg: The minimum fine is $1,000.
• 120 to 159 mg: The minimum fine is $1,500.
• 160 mg or more: The minimum fine is $2,000.

A first conviction also brings a court driving prohibition of 1 to 3 years and an Ontario licence suspension of at least 1 year. A second or later offence carries minimum jail. See second impaired driving offence.

What happens after you are charged

1. Roadside penalties: Ontario imposes a 90-day suspension and a 7-day impoundment right away.
2. First court date: Your lawyer can appear and request disclosure.
3. Disclosure review: Your lawyer reviews the breath records, the instrument checks and the video.
4. Resolution or trial: The case either resolves or goes to trial on the issues raised by the evidence.

Possible defences

Over 80 cases often turn on technical issues:

• The demand: Police may not have had lawful grounds for the roadside or station demands.
• Right to counsel: Police may not have told you of your right to a lawyer, or given you a real chance to use it before the station tests (Charter s. 10(b)).
• Testing procedure: The instrument checks, the time between samples or the operator's steps may not have been done properly.
• The two-hour window: The samples may not have been taken in time.
• Drinking after driving: The exception in s. 320.14(5) may apply.

See impaired driving defences in Ontario.

Over 80 vs impaired driving

These are different charges. Impaired driving (s. 320.14(1)(a)) requires proof that alcohol or drugs impaired your ability to drive, even slightly. Over 80 requires proof of the reading.

Police often lay both charges for the same incident. However, you cannot be convicted of both for the same driving.

Effects beyond the sentence

An over 80 conviction is a criminal record. It can increase insurance costs for years, affect jobs that involve driving, and cause problems at the U.S. border. Because the maximum is 10 years by indictment, it can also make a permanent resident inadmissible for serious criminality.

Common situations

Over 80 charges in Peel Region often follow a holiday checkpoint, a routine traffic stop for speeding, a minor collision in a parking lot or a call from another driver who reported unusual driving. In many of these cases, the person charged felt fine and did not believe they were over the limit. Because the offence depends on the reading rather than on how a person feels, the focus of the defence usually shifts to whether the reading was obtained lawfully and recorded accurately.

Possible outcomes

What to do now

• Write down exactly what you drank and when, including anything after you stopped driving.
• Keep any receipts that show the times of purchases.
• Do not drive until your suspension has ended and your release papers allow it.

Why the officer's notes matter

Even though impairment does not need to be proven for over 80, the officer's notes still matter. They record the reasons for the roadside demand, the time of driving, the time of each breath sample and when you were told about your right to a lawyer. Any gap or inconsistency between the notes, the video and the instrument printouts can raise questions about whether the samples were lawfully obtained.

How we can help

We can review the breath records, the timeline and the police video, and test every step of the case. Call (647) 223-1980 for a free consultation.

Frequently asked questions