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A charge of driving 80 and over is a serious criminal matter, and contacting a lawyer as early as possible is an important first step.
An “80 and over” charge is based primarily on evidence of blood alcohol concentration rather than on whether a driver appeared visibly impaired. These cases can therefore depend heavily on how police obtained the breath or blood samples, whether the statutory requirements governing alcohol testing were followed, whether the approved instrument procedures were satisfied, and whether any Charter breach affected the admissibility of the evidence.
A driving 80 and over lawyer in Toronto can review the police stop, alcohol-screening demand, approved-instrument testing, disclosure and timing of the investigation to determine whether the Crown can prove an offence under section 320.14(1)(b) of the Criminal Code.
Igor Vilkhov is the founder and principal lawyer of Vilkhov Law. He graduated from the University of Windsor Law School, where he focused on criminal law, and practises criminal defence in Toronto and throughout the Greater Toronto Area.
In an 80-and-over case, the numerical breath readings are only one part of the prosecution's case. The surrounding investigation, the lawfulness of police demands, the testing procedure and the evidence required to establish blood alcohol concentration must also be examined. Igor approaches criminal cases by scrutinizing the Crown’s evidence and assessing whether constitutional, procedural or evidentiary issues provide a basis to challenge the charge.
Benson (“Ben”) Wilson is a criminal defence lawyer at Vilkhov Law whose practice focuses exclusively on criminal defence. He earned his J.D. from the University of Ottawa after completing undergraduate studies in Global and International Studies at Carleton University.
Ben represents accused persons throughout the criminal process, including disclosure review, Crown discussions and trial preparation. In alcohol-driving cases, careful examination of the police investigation and breath-testing evidence can be important in determining whether the statutory requirements were satisfied and whether the Crown can establish the charge beyond a reasonable doubt.
Vilkhov Law represents clients facing 80 and over and related impaired driving charges in Toronto and across the GTA. Early legal advice can help identify evidentiary or Charter issues, address immediate licence consequences and establish a defence strategy before the case advances through the court process.
Driving 80 and over falls under the impaired driving provisions of the Criminal Code, but no proof of actual impairment is required. Under section 320.14(1)(b) of the Criminal Code, a person commits an offence if, within two hours of ceasing to operate a conveyance, they have a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood, or a blood drug concentration at or above the level prescribed by regulation.
Section 320.14(5) sets out limited exceptions, including where you consumed alcohol or drugs only after you stopped driving, where you had no reasonable expectation of being asked for a sample, or, for alcohol specifically, where your consumption pattern is consistent with a blood alcohol concentration that was below 80 mg while you were actually driving. The only proof the Crown needs is that your blood alcohol or drug concentration met or exceeded the prescribed level within the two-hour window.
Under section 320.11 of the Criminal Code, a conveyance includes a motor vehicle, a vessel, an aircraft, or railway equipment.
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Driving 80 and over requires no proof of actual impairment, only that your blood alcohol or drug concentration met or exceeded the prescribed level within two hours of driving. Impaired driving, under section 320.12(1)(a) of the Criminal Code, instead requires the Crown to prove that your ability to operate the conveyance was actually impaired by alcohol or drugs.
If police stop you, they can demand a roadside breath sample. Refusing can result in a separate charge for failing to provide a sample. If you register over the legal limit, your licence will typically be suspended for 90 days and your vehicle impounded for seven days, in addition to any criminal charge.
You will typically be released directly by police. If a serious accident, injury, or death occurred, you may instead be held for a bail hearing, which must take place within 24 hours of arrest or as soon as possible thereafter. Under the ladder principle, reaffirmed in R. v. Antic, 2017 SCC 27, the least restrictive bail conditions must be imposed unless the Crown shows they are not appropriate. Experienced bail counsel can hold the Crown to that standard.
Your lawyer will request full disclosure of the Crown's evidence, including the maintenance and calibration records for the breath testing equipment used in your case, which are frequently a focus of the defence in these matters. A Crown pre-trial (CPT) and, in some cases, a judicial pre-trial (JPT) will follow. If the Crown proceeds by indictment and the matter goes to trial, you will be asked to elect your mode of trial.
Alcohol-impaired driving that does not cause bodily harm or death carries the following mandatory minimum penalties, in addition to the applicable maximum:
| Circumstance | Mandatory Minimum |
|---|---|
| First offence, BAC 80–119 mg | $1,000 fine |
| First offence, BAC 120–159 mg | $1,500 fine |
| First offence, BAC 160 mg or more | $2,000 fine |
| First offence, refusal to provide a sample | $2,000 fine |
| Second offence | 30 days imprisonment |
| Third or subsequent offence | 120 days imprisonment |
Beyond these mandatory minimums, the maximum penalty is up to 2 years less a day and/or a $5,000 fine on summary conviction, or up to 10 years if the Crown proceeds by indictment. A conviction also carries a mandatory driving prohibition, the length of which depends on whether you have prior convictions, and may include a requirement to complete a remedial alcohol or drug education or treatment program.
Being charged with driving 80 and over is a stressful experience that can affect your daily life and livelihood. A lawyer can:
Yes. Driving 80 and over does not require proof that you felt or appeared impaired, only that your blood alcohol or drug concentration met or exceeded the legal threshold within two hours of driving.
Refusing a lawful demand for a breath or blood sample is itself a separate criminal offence, carrying the same mandatory minimum fine as a first offence at the highest BAC level, and can result in penalties similar to a conviction for driving 80 and over.
A licence suspension typically applies administratively at the roadside, separate from any criminal penalty, and a further driving prohibition applies on conviction. The length of any prohibition depends on your record and the specific circumstances.
Yes. Common issues include the reliability and calibration of the breath-testing equipment, whether the two-hour testing window was observed, and whether your Charter rights were respected during the stop and testing process. Whether any of these apply depends on the specific facts of your case.
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