Driving Over 80 Lawyer Toronto | Excess Blood Alcohol Defence

Composed by Chris Sewrattan, Certified Specialist in Criminal Law. Updated July 2026.

This is legal information, not legal advice. It does not create a lawyer-client relationship. For advice about your situation, contact us for a consultation.

Driving over 80, formally operating a conveyance with a blood alcohol concentration at or over 80 mg of alcohol in 100 mL of blood, is a criminal offence under section 320.14(1)(b) of the Criminal Code. Unlike impaired driving, the Crown does not need to prove your driving was affected: the offence is the reading itself. The case therefore usually rises or falls on the reliability of the breath testing and the lawfulness of the police investigation, and many over 80 charges in Ontario are successfully defended on exactly those grounds.

What is driving over 80 under Canadian law?

Section 320.14(1)(b) makes it an offence to have a blood alcohol concentration at or over 80 mg per 100 mL within two hours of ceasing to operate a conveyance (the Criminal Code's umbrella term for motor vehicles, vessels, and aircraft). The "within two hours" wording, added in 2018, was designed to close off arguments about drinking just before driving. There is a narrow statutory exception where a person drank after driving, had no reason to expect a breath demand, and their concentration is consistent with having been under 80 while driving.

To prove the offence, the Crown relies on breath samples taken on an approved instrument (in Ontario, typically an Intoxilyzer operated by a qualified technician at the station) or, less commonly, blood analysis. The Criminal Code gives those breath readings powerful evidentiary status, but only if the statutory testing conditions in section 320.31(1) were met, including proper system checks and a minimum interval of at least 15 minutes between the two samples.

Penalties for driving over 80 in Ontario

The consequences track impaired driving, with one addition: the mandatory minimum fine climbs with the reading.

First offence: a mandatory minimum fine of $1,000, rising to $1,500 for a reading of 120 to 159, and $2,000 for a reading of 160 or more, plus a driving prohibition of 1 to 3 years.
Second offence: a mandatory minimum of 30 days in jail. Third or subsequent offence: a mandatory minimum of 120 days.
Maximum penalty: 10 years in prison by indictment, or 2 years less a day on summary conviction.

In Ontario, a reading at or over 80, or a refusal, also triggers an immediate 90-day administrative licence suspension and a 7-day vehicle impoundment at the roadside, along with a $550 administrative penalty and a licence reinstatement fee. A conviction adds a Highway Traffic Act suspension (generally 1 year for a first offence), the Back on Track remedial program, ignition interlock, and significant insurance consequences. Ontario's Reduced Suspension with Ignition Interlock Conduct Review Program can shorten the suspension, and its best stream requires a guilty plea and sentencing within 90 days of the offence date, a deadline explained on our impaired driving page.

Possible defences to an over 80 charge

Because the offence is built on a machine result obtained through a chain of police steps, the defences focus on that chain. Depending on the evidence, they may include:

Charter issues: whether the stop, the roadside screening demand, the arrest, the breath demand, and access to counsel under section 10(b) were all lawful. A breach can lead to exclusion of the readings under section 24(2).
Roadside screening reliability: an approved screening device test taken without an appropriate waiting period after a drink, a burp, or something in the mouth can produce a false fail and undermine the grounds for the later breath demand.
Compliance with section 320.31(1): whether the qualified technician conducted the required blank tests and calibration checks, whether the two samples were at least 15 minutes apart, and whether the results agreed within the permitted range.
Disclosure: records relating to the testing, such as the alcohol standard and instrument records that Ontario courts have ordered produced in appropriate cases, can reveal problems not visible in the initial package.
Operation and timing: whether the Crown can prove who was driving and when, which matters because the reading must connect to the two-hour window.
Delay: unreasonable delay under section 11(b) of the Charter and the Jordan framework.

Frequently asked questions

What does over 80 actually mean?

It means having 80 mg or more of alcohol in 100 mL of blood within two hours of driving, as measured by breath or blood analysis. It is a separate criminal offence from impaired driving and does not require any proof of bad driving.

Why am I charged with both impaired driving and over 80?

Police in Ontario routinely lay both charges from one incident because they rest on different evidence: observations of impairment for one, the breath readings for the other. A person is not sentenced twice; if both charges succeed, one is typically stayed.

Can breath readings be wrong?

Breath instruments are treated as reliable only when the statutory testing conditions were met, and problems do occur: mouth alcohol effects, calibration and alcohol standard issues, and procedural mistakes by the operator. Whether a challenge is available depends on the records in your specific case.

Will I go to jail for a first over 80 offence?

Generally no. A first conviction carries a mandatory minimum fine, which increases with the reading, rather than mandatory jail. Jail becomes mandatory for repeat convictions and remains possible where there are aggravating features.

How long will I be off the road in Ontario?

There is an automatic 90-day suspension on being charged. On conviction, the suspension is generally 1 year for a first offence, but Ontario's ignition interlock program can reduce it to as little as 3 months where the strict 90-day plea deadline and other conditions are met.

Do I need a lawyer for an over 80 charge?

Over 80 prosecutions are among the most technical in criminal law, and the viable defences usually sit in the disclosure rather than on the surface of the allegation. A lawyer can obtain and review the testing records and identify Charter issues early.

Charged with driving over 80? Contact us