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The offence of driving "over 80" is found at section 253(b) of the Criminal Code of Canada. The text of the section reads as follows:

253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not ...(b) having consumed alcohol in such a quantity that the concentration in the persons blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
The offence of over 80 is among the most technical crimes contained in the Criminal Code. As an example, the offence requires that over 80 milligrams of alcohol be present in 100 millilitres of blood. Thus, a person could quickly consume several shots of alcohol prior to driving, and be "under 80" at the time of driving, yet "over 80" at the time of testing. This, is known as bolus drinking, and it presents as one of the many technical defences available. In fact, the offence of "over 80" is full of technicalities that result by the very nature of the charge. It is rare, if ever, that an accused has the same blood alcohol level at the time of testing that they had at the time of driving. Despite this, the Courts accept two factual fallacies called the presumption of identity and the presumption of accuracy to support convictions, but do so only if certain technical stipulations regarding the process followed and manner of testing are met. Historically, these stringent technical requirements have enabled a bevy of defences to flourish in the common law.


Despite legislative efforts to curb what were perceived as technicalities, there are still many defences available on charges of over 80 pursuant to section 253(1)(b) of the Criminal Code of Canada. The process begins by a careful examination of the disclosure - all evidence generated against the accused. This will include officers' notes, printouts from the Intoxylizer, investigative actions detailing the timeline, as well as any other evidence such as videos or witness statements. From there, a sequence of events can be gleaned. If necessary, additional disclosure is requested, which may include cellblock video, 911 call logs, dispatch records - whatever is relevant on the specific facts of the specific case. It is rare that the facts of a case don't reveal some defence. The real question is how strong that defence is.


One of the principal elements the Crown must prove on an over 80 charge is that the accused had the "care or control" of the motor vehicle. A significant amount of litigation has centered around this question. In cases where an accused is first engaged by the police on a ride program, or traffic stop, this question is obvious: a person is presumed to be in care and control of their vehicle if they are in the driver's seat. However, in many other cases, the question is not so easily resolved. For example, an accused may be first located outside of their car, sitting on a curb having a cigarette. Are they in care and control of their vehicle at that instant? What of an accused who is sleeping in the back seat of their vehicle? Or reclined in the driver's seat, but with the care running merely for heat during a cold winter storm? What if the keys are nowhere to be found? These, and other situations have all led to acquittals on charges of over 80. There are an infinite number of possible scenarios. A criminal lawyer with strong experience in defending over 80 charges will be able to examine the facts of your case, and assess whether there is a bona fide care and control issue to vet.


The Criminal Code requires that a breath sample taken pursuant to a breath demand must be obtained "as soon as is practicable." This legal term has been the subject of much jurisprudence. In some cases, a sample taken an hour and half late will be considered "as soon as is practicable", in other cases, a sample taken two minutes after the demand is deemed too late. How this term is interpreted will depend greatly on the facts of your particular case.


In many cases, where the police have not followed procedure that's mandated by the case law, a Charter breach will manifest. The Canadian Charter of Rights and Freedoms sets out numerous rights that every individual has. When detained at a traffic stop, or subjected to a breathalyzer demand, these rights are inherently breached. Generally, the courts have tolerated these breaches and held that they are demonstrably justified in a free and democratic society. Put simply, society will tolerate brief detentions, and intrusions into a person's lungs, if it means protected the public from impaired drivers. However, in many cases, the police go beyond the legally accepted limits, and breach a person's Charter rights such that a remedy may be sought from the Court. Typically, in over 80 cases, the remedy sough is the exclusion of the readings themselves. If the readings are no longer permissible evidence, then the Crown's case against the accused falls, yielding an acquittal. Typical breaches may include: an overly long detention, a failure to provide rights to counsel in a timely manner, an excessive use of force, a failure to advise of the charges, a lack of grounds to detain the individual, a lack of grounds to make a breathalyzer demand, amongst many others that must be examined on a case by case basis.


As a result of lobbying efforts by Mother's Against Drunk Driving, as well as Parliament's recent efforts to institute a "tough on crime" policy, the penalties for impaired driving offences are stiff - even for first time offenders. The case law has developed over the years and the Courts often speak of the "carnage" on the highways caused by impaired driving and over 80. These types of cases account for a large percentage of court time used, due in no small part to the complexity of the issues involved, but also the mandatory minimum punishments that must be imposed upon conviction for over 80.


For a first time offender conviction of driving while "over 80" contrary to section 253(1)(b) of the Criminal Code of Canada, there is a mandatory minimum fine of $1000.00. This means that regardless of the offender's background, or general good character, they will have a criminal record. The fine can be significantly higher, depending on the readings generated. The Criminal Code mandates that the aggravating range for sentencing on an over 80, is 160. This means that anyone with blood alcohol readings in excess of 160 may not be given the minimum fine, and could face a whole range of higher penalties, including jail.

It must be stressed that the imposition of a Criminal Code fine is not the same as a ticket a person gets under the Highway Traffic Act. A fine under the Criminal Code means the offender is entered into CPIC - and thus, has a criminal conviction on their record. In contrast to many other offences that objectively carry higher degrees of moral turpitude (such as theft, assault, or even sexual assault) the existence of the mandatory minimum fine means that there is no way to avoid having a criminal record, other than to be acquitted of the offence. For this reason, it is imperative that anyone charged with driving while over 80 consult with a criminal lawyer at the earliest opportunity.


Upon conviction for a first time offence of over 80 contrary to section 253(1)(b) of the Criminal Code, the Court must impose a mandatory driving prohibition for a minimum period of one year. For a second offence, the minimum prohibition increases to two years, and for a third offence, the minimum prohibition increases to three years. Depending on the facts of a particular case, the offender may not be entitled to the mere minimum. The driving prohibition operates throughout Canada, and is not specific to your province. In fact, some jurisdictions in the United States have reciprocal enforcement provisions, and enforce Canadian prohibition orders. It should also be noted that the driving prohibition encompasses any motor vehicle, such as a car, motorcycle, motor boat - even a ride-on lawnmower.


In addition to a driving prohibition pursuant to the Criminal Code, an offender convicted of driving while over 80 will also be subjected to a driving suspension. This suspension is mandated by the Highway Traffic Act - a provincial piece of legislation. The suspension is imposed in addition to the prohibition, and carries a host of other stipulations. For example, a person may be given a one year driving prohibition, but be subjected to a two year driving suspension. Moreover, the provincial authority, pursuant to the Highway Traffic Act, may also required that anyone convicted of over 80 register in a "Drive Safe" or "Back on Track" program prior to being able to operate their motor vehicle. Unfortunately, the criminal courts do not have the jurisdiction to modify these provisions. Without proper legal advice, these additional, collateral penalties often come as a surprise at the end of the driving prohibition period, just as the accused attempts to re-instate their licence.


Even first time offenders face the possibility of a jail term on a charge of driving while over 80. This, however, is relatively rare and generally reserved to cases where there has been a fatality or bodily harm caused by the driving. In contrast, however, a second time offender faces a mandatory minimum jail sentence of thirty days, and a third time offender faces a mandatory minimum jail sentence of 120 days. These mandatory minimums operate so long as the Crown files the Notice of Increased Penalty.


Paul Lewandowski has successfully defended hundreds of clients charged with over 80. Whether it be by having breathalyzer readings excluded by way of Charter motion, or an elegant "as soon as is practicable" fact-based argument, there are usually avenues of attack that require careful examination to ensure an accused's rights are properly protected. If you have been charged with over 80, contact Paul Lewandowski for a consultation immediately.


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Paul Lewandowski Professional Corporation
200 Elgin St,
Ottawa, Ontario, Canada,
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