Driving 80 and Over

Driving 80 and over is an offence that must be taken seriously. The first step is contacting a lawyer.

What is driving 80 and over?

Driving 80 and over comes under the “impaired driving” section of the Criminal Code of Canada, yet no proof of actual impairment is needed to make out the elements of the offence. Instead, under section 320.14(1)(b) of the Criminal Code of Canada, a person commits an offence if after two hours of ceasing to operate a conveyance, such as a motor vehicle, they have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood or a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation.

The exceptions to this offence are found under section 320.14(5) of the Criminal Code and are as follows:

• If you consumed drugs or alcohol after ceasing to operate your conveyance (motor vehicle);
• After ceasing to operate your motor vehicle, you had no reasonable expectation that you may be required to provide is breath or blood sample; and
• With respect to alcohol only, your alcohol consumption was consistent with your blood-alcohol concentration as determined by a blood or breath sample and that during the time you were operating your motor vehicle, your blood alcohol concentration was less than 80 mg of alcohol in 100 mL of blood.

The only proof that is required is that you had a blood alcohol concentration equivalent to more than 80 mg of alcohol in 100 mL of blood or a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug.

What is considered a “conveyance”?

Under section 320.11 of the Criminal Code, a conveyance refers to:

• a motor vehicle;
• a vessel;
• an aircraft; and
• railway equipment

Driving 80 and over versus impaired driving:

Driving 80 and over requires proof that within two hours of having ceased operation of a conveyance such as a motor vehicle, your blood alcohol level is either equal to or exceeds 80 mg of alcohol in 100 mL of blood or a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation. This requires no proof of actual impairment while driving.

Impaired driving under section 320.12(1)(a) of the Criminal Code, on the other hand, requires proof that you consumed alcohol or drugs and that you then assumed care and control over a vehicle which was impaired by your consumption of drugs and/or alcohol.

Arrest and bail:

If the police stop you, they have a right to ask for a roadside breath test. If you refuse, you could be charged with refusing to provide a breath sample. If you blow over the legal limit, the police will suspend your license for 90 days and impound your car for seven days. There are also financial penalties involved.

Typically, you will be released directly by police. That being said, if a serious accident, injury, or death occurred, then you may be held for bail. If you are held for bail, you will be brought in front of a judicial official within 24 hours of your arrest. Not only will contacting a lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.

If you are brought to court for bail, a lawyer can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and the best criminal lawyer can explain their role and adequately prepare them for court.

Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”

The Crown may consent to your release based on the plan. If they have concerns about the plan, the circumstances of the offence, your chance of reoffending, your ability to follow conditions (especially if you have breached bail before), et cetera, they may contest your bail. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified.

There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:

• • Whether you are a flight risk (primary ground);
  • Whether you pose a threat to the public (secondary ground); and
  • Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).

The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.

As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:

• • Supervision through sureties;
  • Curfews or house arrest, including ankle monitoring;
  • Refraining from use of drugs and alcohol;
  • Mandatory counselling;
  • No contact with certain individuals; and/or
  • Restrictions on where you can travel.

When making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.

If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a lawyer maximizes your chances of being released.

It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.

Awaiting trial:

Once you are released by police or a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.

A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence.

In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.

A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case and the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. In fact, negotiations with the Crown can be crucial in impaired driving cases and a lawyer is best placed to have these discussions. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.

If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.

There can be a number of court appearances before a case is set down for trial or resolved. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.

If the Crown chooses to proceed by indictment, and the case goes to trial, there will come a time when you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, by a judge alone in the Superior Court, or by a judge and jury in the Superior Court. Making your election is a strategic decision. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.

Consequences if found guilty:

Driving 80 and over can affect your daily life and livelihood. While you may face a maximum sentence of two years less a day and/or a fine of up to $5,000 if the Crown proceeds summarily, you may also face a maximum of 10 years in prison if the Crown proceeds by indictment. You will face minimum fines, the amount of which depends on your blood alcohol level. Furthermore, you will face a driving prohibition, the length of which depends on whether you have committed the offence previously. You may also attend drug and alcohol counselling.

A lawyer can evaluate your case and obtain the best possible outcome in the circumstances.

It’s vital to hire a lawyer

Being charged with a criminal offence, such as driving over 80, is a stressful and tolling experience. It is important to seek professional advice from a lawyer about your rights from the beginning.

A lawyer can also do much more. They can:

• Work to secure your release with the most favourable conditions;
• Help you navigate the criminal justice system;
• Ensure that the Crown meets its disclosure obligations;
• Identify systematic or administrative errors in the criminal process, including Charter rights violations;
• Speak to the Crown on your behalf, negotiate, and advise you of your options;
• Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
• Gather further evidence to support your version of the events;
• Obtain a more lenient sentence in the event a guilty plea or conviction is entered.

All criminal cases are complex and fact specific. We have provided general information about how driving over 80 cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.