Often called the "over 80" charge, this offence does not require any proof that a person's driving was actually affected; it is based entirely on a chemical measurement of blood alcohol or drug concentration. This guide explains how this offence differs from the general impaired driving charge, how it applies to both alcohol and drugs, potential penalties, and what generally happens after this kind of charge in Ontario. It is general legal information, not legal advice about a specific case.
What Is the "Over 80" Offence?
Section 320.14(1)(b) of the Criminal Code makes it an offence to operate, or have care or control of, a conveyance with a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood, commonly referred to as a BAC of 0.08. This offence is often called "over 80" for that reason. Unlike the general impaired driving offence, it does not require any evidence that the person's driving ability was actually affected; exceeding the legal concentration is, by itself, sufficient to establish the offence, regardless of how the person appeared to be driving.
Drug Concentration Limits
The same general approach applies to certain drugs, including THC, the primary psychoactive component of cannabis. Federal regulations set specific blood drug concentration limits, and exceeding them is itself an offence under section 320.14, separate from any general impairment analysis. For THC, there are two tiers: a lower concentration threshold that results in a summary conviction offence, and a higher concentration threshold that results in a more serious hybrid offence. Similar regulatory limits exist for certain other drugs. Because these limits are set out in regulations rather than in the Criminal Code itself, and because drug testing science in this area continues to develop, a criminal lawyer can confirm the specific, current limits applicable to a given substance.
How This Differs From Impaired Driving
The key distinction from impaired driving is what the Crown must prove. Impaired driving requires evidence that the person's ability to drive was actually affected, based on observations such as driving pattern or coordination. The "over 80" and drug-concentration offences instead rely on a specific chemical measurement, meaning a person can be convicted even if their driving appeared entirely normal, provided the measured concentration exceeded the legal limit. The Crown frequently charges both offences together based on the same incident, since the same underlying facts, an officer's observations plus a breath or blood test, can potentially support either or both charges.
Classification and Penalties
This offence carries the same overall penalty structure as general impaired driving, since both are addressed within section 320.14.
Driving Over the Legal Limit at a Glance
- Classification
- Hybrid offence (Crown elects summary conviction or indictment)
- Maximum penalty – indictment
- Up to 10 years imprisonment
- Maximum penalty – summary conviction
- Up to 2 years less a day and/or a $5,000 fine
- Mandatory minimum – first offence
- A fine of at least $1,000 (higher minimums apply at higher measured concentrations)
- Mandatory minimum – second offence
- At least 30 days imprisonment
- Mandatory minimum – third or subsequent offence
- At least 120 days imprisonment
These figures reflect the Criminal Code as of this page's last update. As with general impaired driving, causing bodily harm or death while over the legal limit increases the maximum penalty to 14 years or life imprisonment, respectively. A criminal lawyer can confirm the current state of the law for a specific case.
How Testing Works
Blood alcohol concentration is typically measured using an approved breath instrument at a police station, following an initial roadside screening device test. Drug concentration is generally measured through a blood sample, since breath testing for drugs remains more limited than for alcohol, though roadside oral fluid screening devices are also used to help establish grounds for further testing. The specific procedures followed, including timing requirements and equipment calibration and maintenance records, can significantly affect whether the test results are reliable and admissible in court.
Because this offence depends entirely on scientific measurement, technical issues with how a test was administered, calibrated, or documented can be significant in a way that differs from cases relying primarily on an officer's observations.
Because this charge does not depend on how someone appeared to be driving, a person who is confident they were not visibly impaired should not assume this protects them from conviction if their measured concentration exceeded the legal limit. The two offences rest on entirely different evidentiary foundations.
Possible Defences
Defending this charge often focuses on technical and procedural issues with the testing process, including whether the breath or blood demand was made lawfully and within the required time, whether the testing equipment was properly calibrated and maintained, and whether proper procedures were followed in administering the test. In some cases, evidence about alcohol consumed after driving but before testing, sometimes called a "bolus drinking" or after-the-fact consumption scenario, can be relevant to whether the measured concentration accurately reflects the concentration at the time of driving. A criminal lawyer experienced in this area, sometimes working with a toxicologist, should review the specific testing records before advising on possible defences.
What Happens After This Charge
As with general impaired driving, a person charged with this offence typically faces an immediate roadside licence suspension under Ontario's provincial rules, separate from the criminal process. The criminal case then proceeds through the standard court process, including disclosure of the testing records and equipment maintenance history, before moving toward a resolution or a trial. See our sentencing overview and criminal records overview for more.
The science and legal framework around drug concentration limits, particularly for cannabis, remains an evolving area compared to the long-established alcohol testing regime. Courts continue to consider questions about how accurately blood THC concentration reflects actual impairment at the time of driving, given that THC can remain detectable in the body for a period after any impairing effects have worn off. This makes drug concentration cases, in particular, an area where specialized legal and scientific expertise can matter significantly.
Frequently Asked Questions
Can I be charged even if I felt fine to drive?
Yes. This offence is based on the measured concentration, not on how the person felt or appeared to be driving. Exceeding the legal limit is sufficient on its own, regardless of apparent impairment.
Does this apply to cannabis and other drugs, not just alcohol?
Yes. Federal regulations set specific blood drug concentration limits for certain substances, including THC, and exceeding those limits is an offence under the same general framework as the alcohol "over 80" offence.
Can I be charged with both impaired driving and this offence for the same incident?
Yes, both charges are frequently laid together based on the same incident, since they rely on overlapping but distinct evidence.
What if I drank alcohol after I finished driving but before being tested?
This can potentially be relevant to whether the test result accurately reflects the concentration at the time of driving, though establishing this requires specific evidence and is a complex, fact-specific issue.
How reliable are roadside screening devices?
Roadside screening devices are generally used to establish grounds for further testing at a police station, rather than as the final evidentiary measurement in most cases. The equipment used for the evidentiary breath or blood test is typically different and subject to specific calibration and maintenance requirements.