What Is an Over 80 Charge?
An over 80 charge is laid under section 320.14(1)(b) of the Criminal Code. It is an offence to operate a motor vehicle — or to have care or control of a motor vehicle — while having a blood alcohol concentration (BAC) equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood.
Unlike impaired driving, which requires the Crown to prove that alcohol or a drug impaired the accused’s ability to drive, over 80 is a strict threshold offence. The Crown does not need to show any signs of impairment. If the BAC reading is at or over 80 milligrams, the offence is made out regardless of how the accused appeared or drove.
Over 80 is a hybrid offence, meaning the Crown can proceed by indictment (maximum 10 years imprisonment) or by summary conviction. Most first offences are prosecuted summarily. The offence carries mandatory minimum penalties that escalate with prior convictions and with higher BAC readings.
How BAC Is Measured
Blood alcohol concentration is measured in two stages. At the roadside, police use an approved screening device (ASD) to obtain a preliminary reading. The ASD result is not used as evidence of the accused’s BAC at trial — it serves only to establish reasonable grounds for a further demand.
If the ASD registers a fail, the officer makes a demand for the accused to provide breath samples into an approved instrument at the police station. Approved instruments in Ontario include the Intoxilyzer and the DataMaster. The accused provides two breath samples, taken at least 15 minutes apart. These evidentiary readings are what the Crown relies on to prove the over 80 charge.
Section 320.31(1) of the Criminal Code creates a presumption: the results of the approved instrument are presumed to be accurate unless the accused can raise a reasonable doubt about reliability. Challenging the instrument’s results requires technical evidence — maintenance records, calibration logs, and in some cases testimony from a toxicologist.
Timing matters. Under section 320.14(1)(c), it is also an offence to have a BAC at or over 80 milligrams within two hours of ceasing to operate a motor vehicle, unless the accused consumed alcohol after driving and had no reasonable expectation of being required to provide a sample. This provision was added by Bill C-46 in 2018 to address the “intervening drink” defence.
Over 80 vs. Impaired Driving vs. Refusal
Police frequently lay multiple charges arising from the same traffic stop. Understanding how these offences differ is important because the available defences are different for each.
| Offence | Criminal Code | What Crown Must Prove | Mandatory Min. (1st) | Max Penalty |
|---|---|---|---|---|
| Over 80 | s. 320.14(1)(b) | BAC at or above 80mg/100ml | $1,000 fine | 10 years |
| Impaired driving | s. 320.14(1)(a) | Ability to drive impaired by alcohol or drug | $1,000 fine | 10 years |
| Refuse breath sample | s. 320.15 | Failure or refusal to comply with demand | $2,000 fine | 10 years |
| Over 80 (BAC 120–159mg) | s. 320.14(1)(b) | BAC between 120 and 159mg/100ml | $1,500 fine | 10 years |
| Over 80 (BAC 160mg+) | s. 320.14(1)(b) | BAC at or above 160mg/100ml | $2,000 fine | 10 years |
Penalties for Over 80 in Ontario
The penalties for an over 80 conviction escalate based on two factors: the number of prior convictions and the BAC reading.
First offence. The mandatory minimum is a $1,000 fine under section 320.19 of the Criminal Code. If the BAC reading was between 120 and 159 milligrams, the minimum fine increases to $1,500. If the reading was 160 milligrams or above, the minimum fine is $2,000. There is no mandatory jail time for a first offence. The court also imposes a minimum one-year driving prohibition under section 320.24.
Second offence. The mandatory minimum is 30 days imprisonment. There is no fine-only option for a second impaired driving offence. The court imposes a minimum two-year driving prohibition.
Third or subsequent offence. The mandatory minimum is 120 days imprisonment with a minimum three-year driving prohibition. Courts regularly impose sentences well above the minimum for third-time offenders.
Causing bodily harm. Under section 320.2, operating a motor vehicle while over 80 and causing bodily harm carries a maximum of 14 years imprisonment. Causing death under section 320.21 carries a maximum of life imprisonment.
Beyond the Criminal Code penalties, an over 80 conviction results in a criminal record, significantly increased insurance premiums, mandatory participation in Ontario’s Back on Track remedial program, and a requirement to install an ignition interlock device before full licence reinstatement.
Common Defences to Over 80 Charges
Over 80 charges are defended differently from impaired driving charges because the case turns on the reliability of the breath instrument readings, not on the accused’s behaviour.
Rising BAC (bolus drinking). If the accused consumed alcohol shortly before driving, their BAC may have been below 80 milligrams at the time of driving but risen above the legal limit by the time the breath samples were taken at the station. A toxicologist can calculate the likely BAC at the time of driving based on the amount consumed, timing, body weight, and absorption rates. This defence challenges whether the accused was actually over 80 at the time of driving, not at the time of the test.
Instrument reliability. The approved instrument must be properly maintained and calibrated. Defence counsel obtain the maintenance and calibration records for the specific instrument used, including the alcohol standard solution test results taken before and after the accused’s breath samples. Discrepancies in calibration, expired alcohol standards, or documented instrument malfunctions can undermine the presumption of accuracy under section 320.31.
Right to counsel. Under section 10(b) of the Charter, the accused has the right to retain and instruct counsel without delay and to be informed of that right upon detention. If the police failed to inform the accused of the right to counsel, or failed to provide a reasonable opportunity to contact a lawyer before the breath samples were taken, the breath results may be excluded under section 24(2) of the Charter.
Unlawful stop or detention. The police must have a lawful basis to stop the vehicle and a lawful basis to demand a breath sample. If the initial stop violated section 9 of the Charter (arbitrary detention), or if the officer lacked reasonable grounds to make the breath demand, the resulting evidence may be excluded.
Procedural failures. The Criminal Code prescribes specific procedures for breath testing — including the requirement for two samples taken at least 15 minutes apart and the requirement that the samples be taken as soon as practicable. Failure to follow these procedures can affect the admissibility of the results.
Can Over 80 Charges Be Dropped or Reduced?
Yes. Over 80 charges can be withdrawn by the Crown, reduced to a non-criminal alternative, or result in an acquittal at trial.
The most common favourable resolution is a reduction to careless driving under the Highway Traffic Act. Careless driving is a provincial offence, not a criminal charge — it does not result in a criminal record. The Crown may agree to this resolution where the defence raises issues that make the over 80 charge difficult to prove, such as toxicological evidence showing the accused was likely under the legal limit at the time of driving, instrument reliability problems, or Charter violations. For more on this type of resolution, see our guide on DUI reduced to careless driving.
Charges can also be withdrawn entirely where the Crown determines the evidence is insufficient to proceed. This may occur where the breath demand was unlawful, where there were serious procedural failures, or where Charter arguments would likely succeed at trial.
At trial, the accused may be acquitted if the Crown cannot prove beyond a reasonable doubt that the accused’s BAC was at or over 80 milligrams at the time of driving, or if the breath instrument results are excluded from evidence due to Charter violations.
What Happens After an Over 80 Charge
After being charged with over 80, several things happen immediately under Ontario’s administrative regime, separate from the criminal proceedings.
Immediate licence suspension. Under the Highway Traffic Act, a person charged with over 80 faces an automatic 90-day administrative driver’s licence suspension (ADLS). This suspension begins at the roadside and is separate from any driving prohibition imposed upon conviction.
Vehicle impoundment. The vehicle the accused was operating may be impounded for seven days at the owner’s expense.
Ignition interlock. Ontario’s ignition interlock program requires convicted impaired drivers to install a device on their vehicle that tests their breath for alcohol before the vehicle will start. The duration of the interlock requirement depends on the number of prior offences and the stream the convicted person is placed in. For a first offence, the interlock period is typically one year following the driving prohibition period.
Insurance consequences. An over 80 conviction results in dramatically increased automobile insurance premiums. Many insurers will cancel the policy entirely, requiring the convicted person to obtain high-risk insurance at significantly higher rates for several years.
Criminal record. An over 80 conviction is a criminal offence and results in a criminal record. This can affect employment, professional licensing, volunteer opportunities, and international travel — particularly travel to the United States, which treats Canadian DUI convictions as grounds for inadmissibility.
How We Defend Over 80 Cases
Defending an over 80 charge begins with a thorough review of the Crown’s disclosure. The disclosure includes the officer’s notes, the approved instrument printout, maintenance and calibration records, video footage (if available), and any witness statements.
Toxicological analysis. Where the defence involves rising BAC or questions about the accused’s BAC at the time of driving, we retain a toxicologist to calculate the accused’s likely blood alcohol level based on the drinking pattern, timing, body weight, and known absorption and elimination rates. Toxicological evidence has been used to resolve over 80 charges where the BAC at the time of driving was likely below the legal limit, even though the reading at the station was above it.
Instrument records. We obtain and review the complete maintenance history of the approved instrument used, including calibration checks, alcohol standard solution tests, and any documented malfunctions. Gaps in maintenance, expired solutions, or readings outside acceptable tolerance can undermine the presumption of accuracy.
Charter scrutiny. Every stage of the interaction with the police is examined for Charter compliance: the reason for the traffic stop, the basis for the ASD demand, whether the accused was informed of the right to counsel, whether a reasonable opportunity to contact counsel was provided, and whether the breath samples were taken as soon as practicable.
Representative Results
The following are representative cases from our practice involving over 80 and impaired driving charges:
- R v. M.H. — Client in Simcoe, Ontario was charged with impaired care or control of a motor vehicle and had a reading of 160 milligrams of alcohol in 100 millilitres of blood. As a result of difficulties proving the case and violations of the accused’s rights advanced by the defence, the case resolved on a plea to careless driving under the Highway Traffic Act, which allowed the accused to keep his driver’s licence and avoid a criminal record.
- R v. D.Y. — Client was acquitted of impaired driving after a two day trial at 1000 Finch Court in Toronto. The Crown could not prove that my client was impaired at the time of a car accident occurring and that alcohol caused the accident.
Representative work; case names anonymized. Past results do not guarantee future outcomes.
Related Offences
Over 80 charges are frequently accompanied by other driving offences. Impaired driving under section 320.14(1)(a) is often charged alongside over 80 arising from the same traffic stop. Refusing to provide a breath sample under section 320.15 carries a minimum fine of $2,000 for a first offence — higher than the minimum for over 80. Care or control charges are laid where the accused was not driving but was in a position to put the vehicle in motion. Dangerous driving may be charged alongside impaired driving where the manner of driving was particularly hazardous.
For a comprehensive overview of all impaired driving offences and their penalties, see our DUI charges and DUI penalties guides.