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Summary: “Over 80” means you’re alleged to have had a blood alcohol concentration of 80 milligrams of alcohol in 100 millilitres of blood, or more, within two hours of driving. It’s a criminal offence under section 320.14(1)(b) of the Criminal Code, and you can be charged even if you drove perfectly and showed no outward signs of impairment, because the charge is about the reading, not your driving. But a number over the limit is an allegation, not a conviction. The Crown still has to prove every step of the investigation was done lawfully, and that’s where our criminal defence lawyers at Karapancev Law focus a defence.
What “Over 80” Actually Means
Over 80 is set out in section 320.14(1)(b) of the Criminal Code. It makes it an offence to have a blood alcohol concentration at or above the legal limit, 80 mg of alcohol in 100 mL of blood, within two hours after you stopped driving. It turns on the measured concentration itself.
That’s a key point people miss. You don’t have to look drunk, drive badly, or feel impaired to be convicted of Over 80 (excess blood alcohol). The Crown isn’t trying to prove how you drove. It’s trying to prove a number.
A reading between 0.05 and 0.079 sits in Ontario’s “warn range.” That isn’t a criminal Over 80 charge, it triggers administrative penalties under the Highway Traffic Act, like a short roadside licence suspension. The criminal threshold starts at 80.
Over 80 vs. Impaired Driving, Two Different Charges
Over 80 and impaired driving are related, but they’re distinct offences, and they’re frequently laid together on the same arrest.
Impaired driving, under section 320.14(1)(a), is about effect: the Crown has to show your ability to operate a vehicle was affected to any degree by alcohol or a drug. Here, evidence like erratic driving, slurred speech, or poor balance matters.
Over 80 is about concentration. The Crown can prove it without any evidence that you seemed impaired at all, the breath readings do the work. That’s why you can be acquitted of one charge and convicted of the other, or face both from a single stop. Understanding the legal alcohol limit for driving in Ontario is the starting point for either.
What the Crown Has to Prove
To convict you of Over 80, the Crown must establish, beyond a reasonable doubt, that:
- You operated a conveyance (as defined in section 320.11, most commonly a motor vehicle), or had care and control of it; and
- Within two hours of doing so, your blood alcohol concentration was at or above 80 mg per 100 mL.
The Crown usually proves the reading using the presumption in section 320.31 of the Criminal Code. Two breath samples taken on an approved instrument by a qualified technician can be treated as conclusive proof of your BAC, but only if strict conditions were met, including a system blank test, a calibration check against a certified alcohol standard, and the required interval between samples. That presumption is powerful. It’s also conditional, and those conditions are exactly what a defence examines.
There is also a narrow exception. Under section 320.14(5), the offence may not apply where you consumed alcohol only after you stopped driving and had no reasonable expectation you’d be asked for a sample, the “intervening drink” scenario. Think of someone who drives home, then pours a few drinks at home, and is tested well after the fact.
The Consequences of a Conviction
An Over 80 conviction carries mandatory consequences, even on a first offence. It means a criminal record, a fine set by law, and a mandatory driving prohibition. Higher readings, repeat offences, or cases involving a collision or injury can bring more serious penalties, including the possibility of jail.
There are provincial consequences too. Under the Highway Traffic Act, you’re looking at a licence suspension and, in most cases, the ignition interlock program before you can drive normally again. A criminal record can also affect employment, travel to the United States, and professional licensing. Because penalty provisions in this area continue to shift, the specifics of any given case are best confirmed with a lawyer rather than assumed.
How an Over 80 Charge Is Defended
A breath reading over the limit is not the end of the case. Over 80 charges are regularly challenged on procedural, technical, and constitutional grounds. Our lawyers start by reviewing the full disclosure, the officer’s notes, the breath technician’s certificate, the instrument’s maintenance and calibration records, the alcohol standard used, and any video, line by line.
Common lines of defence include:
- The stop and the demand: Since December 2018, mandatory alcohol screening under section 320.27(2) lets police demand a roadside breath sample without suspicion you’d been drinking, but the stop itself must still be lawful. A roadside “fail” only leads to arrest; the reading the Crown relies on comes from the evidentiary test at the station.
- Charter compliance: Was your right to speak with a lawyer without delay under section 10(b) respected before the samples were taken? Was there an arbitrary detention (section 9) or an unreasonable search (section 8)? Where a breach is established, the readings can be excluded under section 24(2), and without them, an Over 80 case often collapses.
- Instrument reliability: Expired alcohol standards, calibration discrepancies, a documented malfunction, or gaps in the technician’s procedure can undermine the section 320.31 presumption.
Knowing your legal rights when taking a breathalyzer matters here. And whatever you do, don’t refuse the test to avoid a reading, refusing to provide a breath sample is a separate criminal offence, and it strips away most of the defences a reading would have given you.
A Strong Defence
Being charged with Over 80 is stressful, and it’s easy to assume a reading over the limit means there’s nothing to be done. That’s not how these cases work. The Crown has to prove every element, a lawful stop, a lawful demand, respect for your Charter rights, and a reading obtained through proper procedure on a properly maintained instrument.
Our criminal defence lawyers at Karapancev Law, the firm founded by Alexander Karapancev, build a defence on a thorough examination of your case, the stop, the demand, the testing, and the evidence gathered against you. We hold the Crown to its burden and pursue every available defence. If you’ve been charged with Over 80 in Toronto, Brampton, Newmarket, or anywhere in the Greater Toronto Area, the best thing you can do right now is get advice early, before your first court date.
Contact Karapancev Law for a confidential consultation.
