What Does “Over 80” Mean in Canada?

The meaning of “Over 80”

“Over 80” is a common name for the blood-alcohol-concentration offence in section 320.14(1)(b) of the Criminal Code. The current provision makes it an offence, subject to a statutory exception, to have a blood alcohol concentration equal to or greater than 80 milligrams of alcohol in 100 millilitres of blood within two hours after ceasing to operate a conveyance.

The legal threshold is therefore expressed as 80 mg of alcohol per 100 mL of blood. It is often described conversationally as a BAC of 0.08.

Why the two-hour period matters

The offence is not drafted simply as “driving while over 80.” It addresses a person’s blood alcohol concentration within two hours after ceasing to operate. Parliament also created a limited statutory exception for certain post-driving alcohol consumption. The exception has specific requirements and should not be assumed to apply merely because alcohol was consumed after driving.

Because timing is part of the statutory framework, the chronology of driving, police interaction, demands, alcohol consumption, and breath or blood sampling can be important.

Over 80 versus visible impairment

A BAC-based allegation is legally distinct from an allegation that a person’s ability to operate was impaired. A person does not have to display dramatic signs of intoxication for the Crown to pursue a BAC-based charge. Conversely, an impaired-operation allegation can involve evidence of impairment even where the case is not based on a BAC at or above 80 mg.

This is one reason an accused may see more than one impaired-driving count on charging documents.

How BAC evidence is obtained

Depending on the circumstances, an alcohol investigation may involve an approved screening device at the roadside followed by evidentiary breath samples on an approved instrument. Blood samples can arise in other circumstances. The Criminal Code contains detailed rules governing demands and the evidentiary use of samples.

Defence review can include the timing of samples, police notes, videos, certificates and printouts, instrument-related disclosure, the wording and legality of demands, and compliance with applicable statutory requirements.

Higher BAC readings and sentencing

For a first offence under section 320.14(1)(b), the Criminal Code establishes higher minimum fines for specified BAC ranges. A BAC of at least 120 mg but below 160 mg carries a higher statutory minimum than the general first-offence minimum, and a BAC of at least 160 mg carries a higher minimum again.

Sentencing is fact-specific, and criminal penalties are only one part of the potential consequences. Ontario licensing consequences may also apply.

Getting advice about an Over 80 charge

A breath-test number should not be evaluated in isolation. The legal assessment may require review of the entire investigation, including the basis for police action, demands, timing, testing procedure, disclosure, and Charter compliance.

If you are facing an Over 80 allegation, LZZ Defence can review the evidence and explain the issues that apply to your case. This article is general information and is not legal advice.