Introduction

This article focuses on the offence found under s. 320.14 (b) of the Criminal Code – namely driving with an excess blood alcohol level (or concentration) (“BAC”).  Prior to a change to DUI Law in December of 2018, the offence was occurring where someone’s blood alcohol level exceeded 80 mg of alcohol in 100 mil of blood.  The offence was informally (and sometimes formally in court) referred to as “Over 80”.  After the change, the offence is triggered where someone’s BAC “is equal to or exceeds” 80 mg of alcohol in 100 ml of blood.  Sometimes, the offence is now referred to as “80 plus” or “80 and over”.    In this article, I will refer to it as what most people in the public might understand it to be, which is “Over 80”, even though that description is technically not correct any longer.

In this article, I will provide answers to frequently asked questions about the offence of Over 80. I have been a Toronto Over 80 Lawyer for over 11 years, and a large portion of my practice is dedicate to defending DUI charges. 

What is 320.14 Criminal Code?

If you’ve been charged with an Over 80 offence, you will receive paperwork from the police, usually an Undertaking to a Peace Officer, on which you will see that you have been charged with “Impaired Driving”, and a number will be referenced on your paperwork.  That number usually reads “s. 320.14” or “cc 320.14”.   “CC” stands for the Criminal Code of Canada.

The number refers to the section of the Criminal Code that creates the offence for certain DUI charges. One you receive this paperwork, your first step is to schedule a consultation with a Toronto Over 80 Lawyer, or a DUI Defense Lawyer in Toronto.

Section 320.14 of the Criminal Code outlines a few of the main DUI charges in Canada, including the 80 and Over (or former Over 80 charge).  The section reads, in part:

“Everyone commits an offence who

  • (a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
    • (b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood”

If you’ve been only charged with the offence of Over 80, your paperwork should note “s 320.14(b). 

What is over 80 mg Criminal Code?

The offence of Over 80 means that the police have determined that your BAC is at or exceeds 80 mg of alcohol in 100 ml of blood.  In short, by collecting particles of your breath into an “approved instrument” or breathalyzer machine, the machine has determined that you have a quantity of alcohol in your system that exceeds the legal limit prescribed by the Canadian government.

Once the police determine this, you will be charged with the offence of Over 80, and will be well advised to contact a Toronto Over 80 Lawyer or a DUI Defense Lawyer in Toronto.

Is Over 80 a criminal record?

Being charged with Over 80 does not necessarily entail a criminal record. However, being found guilty of the offence does. 

The offence of Over 80, like all other DUI charges in Canada, are contained in the Criminal Code of Canada.  This means that they are crimes, not provincial offences (like speeding tickets or parking violations). 

What is the penalty for Over 80?

The penalty for a Over 80 charge in Ontario, Canada, will depend on a number of things, including:

  • The breathalyzer readings you produced
  • Whether you are a first time or repeat offender
  • Whether there was an accident or bodily harm that ensued

Generally speaking, however, for first time offenders, the following are the prescribed penalties:

  • A minimum fine of $1,000-$2,000
  • A victim fine surcharge of 30% of your fine
  • A minimum 12 month driving prohibition

A fine as a sentence in Canada is considered a criminal conviction, which involves a permanent criminal record.  A Toronto Over 80 Lawyer can speak to you about ways to potentially avoid a conviction.  You should consult with a DUI Defense Lawyer in Toronto right after being charged, as time is of the essence.

Is DUI the same as over 80 in Ontario?

A DUI can include the offence of Over 80, but Over 80 charges are not the only DUI offense in Canada.  A DUI can include:

  • Impaired driving – by alcohol or drug
  • Impaired driving – Over 80
  • Impaired Driving – Excess Drug in System
  • Refusing a breath sample

Depending on which DUI offence you’ve been charged with, the Crown Attorney must prove different things in court. This can be confusing for a lay person and you will want to speak to a Toronto Over 80 Lawyer about your particular charge, and what the Crown must prove in order for you to be found guilty, as that will dictate how you should go about defending your charge(s).

TORONTO DUI LAWYER – ANDREW CAPTAN

How long after my last drink can I drive?

The law does not dictate, per se, how long you have to wait before driving following your last drink. For example, someone may have a can of beer and drive immediately without committing a DUI or Impaired Driving offence.  The legal issue that is relevant, and what a Toronto Over 80 Lawyer will look for in your case, is whether you were over the legal limit (Over 80) within two hours of stopping driving.  Why?  As you’ll recall, s. 320.14(b) states the following:

subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood

In theory, you could be under the legal limit while driving, and become over the legal limit after you finish driving and still be liable for a DUI offence.  Every case is different, and it is important for a DUI Defense Lawyer in Toronto to review your disclosure to determine if your BAC lines up with the “timing” requirement set out in the Criminal Code

How many beers is 80 milligrams of alcohol?

Reaching the criminal legal limit of 0.08 mg of alcohol in 100 ml of blood by will depend on your body weight, gender, amount and type of alcohol consumed, amongst other factors.  On average though, a typical adult male would consume around four, 12-ounce beers over the span of two hours to reach the legal limit.

The best way to ensure you are not over the criminal legal limit is to not drink and then drive at all

Is “80” a high alcohol level?

The answer to this question, which I often get as a Toronto Over 80 Lawyer, depends on the framework through which you are answering it. 

From a social perspective, perhaps the answer is no – as you may not exhibit signs of impairment at this BAC.

From a legal perspective, because 0.08 mg of alcohol in 100 ml of blood is the criminal legal limit, surely it can be considered a “high” BAC.  High enough that if you are caught by the police and register readings of 80 mg, you will be charged with Over 80 and require a DUI Defense Lawyer.

From a criminal law perspective, once your readings reach 120 mg, you will be at the “statutorily” aggravating level, which, in plain English, means that your punishments will tend to increase in severity, as compared with lower readings.

What is the best defense for a DUI?

Focussing just on the charge of Over 80, these are offences that require careful planning and skill to win, since the police will have already gathered evidence that your BAC is in excess of the limit, otherwise you would not be facing this charge.  The Judge at a trial will usually see a Certificate of the Qualified Breath Technician, stating your BAC, and will know what your readings are.  So how do Toronto Over 80 Lawyers and DUI Defense Lawyers in Toronto defend and win these cases?  Some of the more common methods would include the following:

  • Arguing that their client was not afforded a reasonable opportunity to consult with counsel prior to the breath readings
  • Arguing that the police arbitrarily detained the client prior to the seizure of their breath samples
  • Arguing that there are issues proving the identity of their client as being the driver
  • Arguing that the breathalyzer test results were unreliable
  • Arguing that the client was arrested illegally and that the demand for the breath samples was therefore illegal was well

How much does it cost to fight a DUI charge in Toronto, Ontario?

Every DUI Defense Lawyer in Toronto, and every Toronto Over 80 Lawyer, may charge different fees for a DUI or Over 80 charge.  Fees range from $4,000 to $15,000, on average, and will depend on whether your case is resolved without a trial or requires a trial to complete.  Some lawyers charge hourly, and other Over 80 Lawyers charge by flat fee.  You are entitled to know how your fees will be billed, and this should be reduced in writing by way of a Retainer Agreement.  If a Over 80 Lawyer in Toronto is unwilling to reduce their fees to writing, that would be a red flag.

Andrew Captan – Experienced Toronto Over 80 & DUI Defense Lawyer

For a free and honest initial consultation about your Over 80 charge, contact Andrew Captan at (647) 878-6355, at andrew@captanlaw.com or at his website HERE.

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