Toronto Over 80 Lawyer: Challenging Breathalyzer Evidence

The term "over 80" refers to a specific criminal offence under Canada's Criminal Code. It means having 80 milligrams or more of alcohol in 100 millilitres of blood, often written as a 0.08 blood alcohol concentration (BAC), within two hours after you stopped driving. If you have been charged, an over 80 lawyer in Toronto can review how officers took your breath samples and whether a court can rely on the results.

You do not need to be visibly drunk to face this charge. If a breath test shows a BAC at or above 80 mg within that two-hour window, police can charge you regardless of how well you think you were driving. The concentration in your blood defines the offence, not your driving. Our article on how many drinks put you over 80 explains why no rule of thumb is safe.

What Is an Over 80 Charge and How Does It Differ From Impaired Driving?

Section 320.14(1)(b) of the Criminal Code sets out the over 80 offence. It sits beside a separate offence, impaired driving under s. 320.14(1)(a), which the Crown proves through observations of your ability to drive rather than a number. You can face an impaired driving charge even with a BAC below 80 if your ability to operate the vehicle was affected by alcohol, cannabis, prescription medication or a combination. Police frequently lay both charges together.

Toronto Police Service, the Ontario Provincial Police (OPP) and Peel Regional Police enforce these laws on city streets, the DVP, the 401, the Gardiner Expressway and surrounding highways.

Ontario also applies provincial penalties at a lower level. A BAC between 50 and 79 mg is the "warn range", which brings a roadside licence suspension of 3 days for a first occurrence, 7 days for a second and 30 days for a third or more within five years, with escalating program requirements. The warn range is not a criminal offence, but a Toronto driver can face real consequences well before reaching 80.

How Over 80 Charges Are Investigated in Toronto

Over 80 charges in Toronto tend to start in predictable ways. RIDE check stops are common in the evenings, on weekends and through the holiday season, including near entertainment districts, and our guide covers your rights at a RIDE checkpoint. Late-night traffic stops on King Street, Queen Street or near busy restaurants and bars often lead to investigations. Officers may also spot a driving issue on the 404 or QEW and make a stop. Here is what usually happens:

1. Lawful stop. Police pull a vehicle over for a traffic reason or at a RIDE check stop.
2. Roadside demand. Officers may note signs of alcohol, such as an odour or red eyes, or simply use their authority to demand a breath sample.
3. Screening test. The driver provides a breath sample into an approved screening device (ASD) at the roadside.
4. Arrest. If the screening result is a fail, or the officer otherwise has grounds, officers arrest the driver for over 80 or impaired driving.
5. Transport to a station. Officers take the driver to a police division for formal breath testing.
6. Evidentiary tests. A breath technician takes two samples on the Intoxilyzer 8000C, usually about 15 to 20 minutes apart, to establish BAC for court.

A roadside breath demand no longer requires the officer to suspect that you have alcohol in your body. Under mandatory alcohol screening in s. 320.27(2), an officer with an approved screening device may demand a sample from any lawfully stopped driver. As long as the stop itself is lawful, the demand can be valid. This change significantly expanded police power to test drivers across Ontario.

How the Crown Proves the Reading

At trial, the Crown usually relies on the Intoxilyzer results, the evidence of the officer who operated the instrument and the arresting officer's account of the timeline. Disclosure should include the instrument's test records, its maintenance logs, the officers' notes and any cruiser or breath room video. Our article on how long a breathalyzer can detect alcohol explains why timing matters so much in these cases.

Penalties and Consequences for Over 80

A first over 80 conviction carries a minimum fine that rises with the reading, a Canada-wide driving prohibition and a criminal record. A BAC of 120 mg or more is also an aggravating factor at sentencing under s. 320.22.

On summary conviction, the maximum is 2 years less a day. At the time of the charge, Ontario also imposes a 90-day Administrative Driver's Licence Suspension, a 7-day vehicle impoundment and an administrative monetary penalty. These start immediately and are separate from the criminal case. Our post on the 90-day ADLS suspension explains how that suspension works.

For repeat offences, the Criminal Code mandates jail time. A second offence carries a minimum 30-day sentence, as our page on repeat offences explains, and a third means at least 120 days.

Beyond the courtroom, Toronto residents face wider consequences:

• Insurance. Premiums can rise sharply, and some insurers may refuse coverage. See how long a DUI affects your insurance in Ontario.
• Employment. Background checks can reveal the criminal record.
• U.S. border. A conviction can complicate entry to the United States, where border officers have discretion.
• Immigration. Impaired driving is now "serious criminality", so permanent residents and foreign nationals can face inadmissibility or removal.
• Professional licences. Certain regulated professions require disclosure and may impose discipline.

A single night can affect your driving, your career and your ability to travel for years.

The Process From Charge to Trial

Most over 80 charges in the GTA go to the Ontario Court of Justice. After your release, the case moves through a first appearance, where disclosure begins, followed by a detailed disclosure review. Your lawyer then meets the Crown at a pretrial to discuss weaknesses in the case and any possible resolution, and a judicial pretrial narrows the issues. If the case goes to trial, the judge usually hears Charter applications along with the evidence.

Under R. v. Jordan, 2016 SCC 27, cases in the Ontario Court of Justice should generally be completed within 18 months. Delay beyond that ceiling that is not caused by the defence can lead to a stay of the charge.

Common Defences to an Over 80 Charge

Because the offence is defined by your BAC within two hours after you stopped driving, arguments that you were under the limit at the moment you were driving generally do not help. The focus instead is on whether the samples were lawfully obtained and reliably analysed. Common areas of challenge include:

• The stop. If the stop was arbitrary or unlawful, it may breach s. 9 of the Charter.
• The station demand. A demand under s. 320.28 requires reasonable grounds. If the grounds were weak or missing, the breath results may be challenged under s. 8.
• Right to counsel. Under s. 10(b), you must be told of your right to a lawyer without delay and given a real chance to speak with one before the station tests.
• Instrument records. Gaps in the Intoxilyzer 8000C test records or maintenance logs can raise doubts about the results.
• Procedure and timing. Errors in how the samples were taken or recorded can matter.

Where police obtained evidence in breach of the Charter, a court may exclude it under s. 24(2), applying R. v. Grant, 2009 SCC 32. If a court excludes the breath results, the Crown often cannot prove the over 80 charge. That is what happened in one of our files, where breathalyzer maintenance records questioned at trial left the readings without a foundation and our client was acquitted. If you refused to blow, a different charge applies; see our page on breath test refusal and our answer to whether you can refuse a breathalyzer.

What to Do Right Now After an Over 80 Charge

• Write down the timeline: when you last drank, when you were stopped, when you were tested and when you spoke to a lawyer.
• Keep all paperwork, including the release, suspension and impound documents.
• Do not drive during the 90-day suspension.
• Avoid discussing the case online or with anyone except your lawyer.
• Get advice early, especially if you are a first offender who may qualify for Ontario's reduced suspension program.

If police charged you west or north of the city, our pages for over 80 charges in Mississauga and DUI defence in Markham explain how the local courts handle these cases. In Durham, our page for drivers charged in Oshawa covers how a breath result can be challenged there, and our Ajax page sets out what the Crown must prove in an Ajax over 80 case. First-time accused can also review our first DUI offence page.

Our Toronto team is available 24/7 at 647-370-5179.