Markham Driving Over 80 Defence Lawyer (Criminal Code s. 320.14(1)(b))

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An over 80 charge is not an allegation about how you drove. Nobody has to say you swerved, sped or missed a light. It is an allegation that a machine says your blood alcohol concentration met or beat 80 milligrams of alcohol in 100 millilitres of blood within two hours of driving. That framing decides the defence. The case will not be won by proving you drove carefully through Markham. It gets won, when it can be won, inside the statute's own rulebook for the breath instrument, inside the two hour window, and inside the process that produced the number.

By Fadi Matthew Kazandji, Founding Partner, Kazandji Law. Updated July 2026.

What an over 80 charge actually alleges

Section 320.14(1)(b) of the Criminal Code makes it an offence to have, within two hours after ceasing to operate a conveyance, a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood. Every word there is doing work. Equal to or exceeding means exactly 80 is enough. Within two hours means the Crown does not have to prove what your level was at the wheel, only what it was inside the window. And blood alcohol concentration means the case is about a measurement, not about driving behaviour.

This is a different offence from impaired operation, which is about whether alcohol or a drug actually degraded your ability to drive. The two are usually charged together after a Markham stop, but they live and die on different evidence. A driver can be acquitted of impaired driving and still be convicted of over 80, and the reverse happens too.

The two hour wording matters because of history. Before December 2018 the offence was tied to your level at the time of driving, and trials filled up with timing arguments about last drinks, slow absorption and what the level must have been earlier. Parliament rewrote the section to close those doors. Under the current law, drinking claims about the minutes around driving no longer move the number, with one exception described next. The practical effect for anyone charged in York Region today is blunt: the defence rarely lives in your drinking story. It lives in the statute's own conditions for the breath readings and in the process the police followed to get them.

The one exception Parliament left open

This is the surviving lane for the classic scenario: you get home rattled after a minor collision, pour a large drink to settle down, and the police arrive an hour later. If the drinking genuinely happened after driving, if you had no reason to expect a demand when you poured it, and if the arithmetic of what you drank fits a legal level at the wheel, the exception can apply.

All three conditions must hold, and the third is where most attempts fail. It is a mathematical claim about absorption and elimination, and it almost always needs a forensic toxicologist to support it. Timing, receipts, witnesses and bottle counts suddenly matter enormously. If your case looks anything like this, do not give a statement about your drinking to anyone before you get legal advice, and start writing down the timeline now, privately, while the details are still sharp.

From the R.I.D.E. line to the breath room

Most Markham over 80 files start the same way: a York Regional Police officer at a R.I.D.E. checkpoint or a routine stop demands a roadside breath sample. Since late 2018 that demand needs no suspicion at all if the officer has an approved screening device in hand at a lawful stop, and a suspicion based demand remains available where the officer reasonably suspects alcohol in your body. The roadside stage has its own law, its own failure points and its own charge if you say no, and we cover every demand in detail on our Markham breath sample refusal page.

For the over 80 charge itself, the roadside result is only a doorway. A fail on the screening device gives the officer grounds to arrest and to make an evidentiary demand under s. 320.28, which is where the real evidence gets made: two samples on an approved instrument at the station, taken by a qualified breath technician, or blood samples where breath testing is impracticable. The screening device result never convicts anyone of over 80. The station readings do. That is why the defence audit concentrates on the breath room, the instrument and the paperwork behind the printout, which brings us to the rulebook.

The machine's own rulebook, straight from the statute

Parliament did something unusual in s. 320.31(1) of the Criminal Code. It wrote out the exact conditions under which breath readings become conclusive proof of your blood alcohol concentration. If the Crown meets every condition, the number wins. If any condition wobbles, the shortcut to conviction wobbles with it. Here is the rulebook, condition by condition.

Statutory condition	Why it matters to the defence
Two breath samples on an approved instrument	One reading is never enough. Both samples, and everything about how each was taken, are reviewable.
Taken by a qualified technician	The technician's qualification and conduct are part of the Crown's case, and the breath room video often tells its own story.
A system blank test producing no more than 10 milligrams	The instrument must show it was reading clean air as clean before your samples counted.
A system calibration check within 10 percent of the target	The machine has to prove its own accuracy on the day, not in general.
Samples at least 15 minutes apart	Spacing protects against contamination and one off anomalies. Timing is checkable against the logs.
Results within 20 milligrams of each other	Two readings that disagree too much prove the process was not reliable that night.
The lowest reading is the one that counts	Whatever survives the audit, you are sentenced on the lower number, which also matters for the fine ladder below.

The word conclusive is exactly why this table is the heart of a Markham over 80 defence. Parliament traded certainty for compliance: the Crown gets an unbeatable number only if the process behind it was clean. So we check every row against the disclosure, reading by reading, log by log, minute by minute. Most files survive the audit. The ones that do not tend to collapse quickly.

The fine ladder is indexed to your reading

Sentencing on a first over 80 conviction starts with a mandatory minimum fine that scales with the concentration the instrument reported. The Criminal Code sets the floors, and the lowest of your two readings is the number that places you on the ladder.

Blood alcohol concentration	Minimum penalty, first offence
80 to 119 milligrams	$1,000 fine
120 to 159 milligrams	$1,500 fine
160 milligrams or more	$2,000 fine

Those are floors, not ceilings. The charge is hybrid, with exposure up to 10 years on indictment. A second conviction carries a minimum of 30 days in jail and each conviction after that carries a minimum of 120 days. A first conviction also brings a federal driving prohibition of one to three years under s. 320.24.

Ontario then runs its own track. A first criminal conviction means a provincial suspension of at least one year, at least a year of ignition interlock once you requalify, and the Back on Track remedial program. Within a 10 year window the ladder steepens: a second conviction brings at least a 3 year suspension with at least 3 years of interlock and a medical evaluation, a third brings a lifetime suspension reducible after 10 years, and a fourth is lifetime with no way back. Insurance sits on top of all of it, and for most working drivers in Markham the insurance and licence consequences dwarf the fine itself.

What already happened at the roadside

By the time anyone is reading charge screens, Ontario has already acted. Registering 80 or more, or failing or refusing a demand, triggers an immediate 90 day administrative driver licence suspension, a 7 day impoundment of the vehicle you were driving, and a $550 administrative penalty, plus a reinstatement fee before your licence comes back. Those figures reflect Ontario impaired driving rules as updated on January 2, 2026, and they apply every time, not just the first.

This administrative layer runs completely apart from the Newmarket prosecution. Winning the criminal case later does not undo it, and losing it does not shorten it. Two practical warnings. First, the impound attaches to the vehicle regardless of who owns it, so a spouse's car or an employer's van sits in the pound at the owner's cost. Second, the 90 day suspension is real, and driving on it is a separate offence that turns one legal problem into two. If that temptation is live, read our Markham driving under suspension page before you touch a key.

How we attack the number in York Region files

Because the readings become conclusive only when the statute's conditions are met, an over 80 defence is an audit before it is an argument. Here is where the audit looks.

• The instrument's paper trail. Within the disclosure framework the Supreme Court has set for breath cases, we pursue the records that bear on whether this instrument, on this night, did what the statute demands: the test records, the technician logs, the calibration and blank checks around your samples.
• The realistic attack lanes. Since the Supreme Court's decision in St-Onge Lamoureux, vague it must be wrong arguments are dead. What lives: evidence the instrument malfunctioned, evidence it was operated improperly, and failures of the statutory conditions themselves. That work is technical and document driven, which suits us fine.
• The two hour arithmetic. The offence is defined by a window. When did driving actually end, when were the samples actually taken, and can the Crown prove the window closed around your readings? Timestamps, dispatch logs and witness evidence answer that, and sloppy timelines create real issues.
• The stop and the demand. The Supreme Court has recently patrolled both the limits of police stop powers and the immediacy requirements of roadside demands. An unlawful stop or a defective demand can poison everything that follows it.
• Your right to counsel. At the station, section 10(b) of the Charter is fully engaged before the evidentiary samples. Cut off calls, no privacy, steering you away from your chosen lawyer, unexplained delay: these are the breach patterns that lead to exclusion applications under the Grant framework.
• Delay. The Jordan ceiling presumptively caps an Ontario Court of Justice prosecution at 18 months from charge to the end of trial. Breath cases are supposed to be simple. When they drag, that becomes your issue to raise.

None of this requires a jury speech. It requires disclosure pressed for early, read closely and checked against the statute line by line. That is the whole defence philosophy on a number case: make the Crown prove its machine earned the word conclusive.

The Newmarket path for a Markham over 80 charge

Markham has no criminal courthouse, so every over 80 file from a Markham stop is prosecuted at the Newmarket courthouse at 50 Eagle Street West, which houses the Ontario Court of Justice and the Superior Court of Justice for all of York Region. After release you will have a first appearance date, and routine appearances now commonly proceed virtually, which spares you most of the physical trips up Yonge Street.

The real rhythm of the case is disclosure, then review, then a Crown pre trial where positions get tested, then either resolution or trial dates. Between those beats we are requesting the instrument records, watching the breath room video against the technician logs, and rebuilding the two hour timeline. Resolution discussions are also where the audit pays off quietly: Crowns price files based on risk, and a file with a documented condition problem or a Charter issue is priced differently than a clean one. If the case should be fought, we fight it. If it should be resolved, the work makes the resolution better.

What actually happens in the breath room

Clients remember the roadside vividly and the station as a blur, which is unfortunate, because the station is where the case against them was built. The sequence usually runs like this. You arrive under arrest and are booked. You are told about your right to counsel and given a phone room to speak with a lawyer in private. Then the qualified technician takes over: two breath samples on the approved instrument, separated by at least 15 minutes, each producing a printed result. Somewhere in there you may be asked questions you do not have to answer. Eventually you are released with a stack of paperwork: the charge documents, the suspension notice, the impound information and a first court date.

Everything in that sequence is evidence, for one side or the other. The booking video shows your balance and speech, which cuts whichever way the truth cuts. The phone room timing shows whether your counsel rights were honoured before the samples. The instrument's records show whether the statutory conditions were met. Our first requests in every file aim at that hour of footage and paper, because the difference between a clean process and a compromised one is almost never in anyone's memory. It is in the timestamps.

Two practical notes if your night was recent. Keep every page you were handed, photographed and backed up. And write down what you remember of the station in order, including the times on the wall clock if you saw them. Small details corroborate large arguments.

The two hour window is a fact fight, not a formality

The offence is measured from when you ceased to operate the vehicle, and that moment is not always obvious. A driver stopped live at a Highway 7 R.I.D.E. line has a clean endpoint. A driver found beside a parked car on a side street, or at home after a neighbour reported a collision, does not. When driving ended is a fact the Crown has to prove, and it anchors everything: whether the samples landed inside the two hour window, and whether the innocent after drink exception is even arithmetically possible.

So we rebuild the timeline forensically. Dispatch records show when the call came in. The officer's notes and the cruiser video show when the stop began. Bar receipts, phone records and witnesses fill the gap between last driving and first contact. Then we place the two breath samples on that line and check the window the statute actually requires, because a timeline that looks tidy in a synopsis often develops gaps under documents. Where testing slips late, or where the endpoint of driving is genuinely uncertain, the Crown's tidy number case stops being tidy, and those are exactly the files that resolve differently.

This is also why we tell clients to write their own timeline immediately, private and for counsel only. You know things the disclosure does not, and in a window based offence, minutes are ammunition.

Five mistakes Markham drivers make in week one

• Driving on the 90 day suspension. The most expensive shortcut in Ontario driving law. It is a separate charge, it complicates every future courtroom conversation, and York Region officers see it constantly. Solve transportation instead, and see our driving under suspension page if you already made this mistake.
• Calling the police to explain. There is no version of the follow up phone call that helps. Statements get noted, and the knowledge gaps in a Crown file have a way of getting filled by the accused personally.
• Posting about the night. Social media is disclosure you write against yourself. Say nothing online, and ask friends who were with you to do the same.
• Pleading guilty for convenience. A plea entered to make it go away locks in the fine, the prohibition, the suspension, the interlock and the record before anyone has read the instrument records. The audit costs you a consultation. The plea costs you years.
• Missing the paperwork deadlines. The administrative suspension, the impound release and Ontario's reduced suspension interlock stream for eligible drivers all run on strict clocks. Bring every document to counsel in week one so nothing lapses by default.

None of these mistakes is fatal on its own, but each one narrows the road. The pattern in the files that end well is boring and consistent: quiet client, early counsel, complete paperwork, aggressive disclosure.

Under 22, novice or commercial? Your number is zero, not 80

The 80 milligram line is only part of the Ontario picture, and in a commuter city full of young drivers and delivery fleets it is worth being precise. Ontario applies a zero tolerance rule to drivers who are 21 or under, to holders of G1, G2, M1 and M2 licences regardless of age, and to drivers of vehicles requiring an A to F class licence, vehicles requiring a Commercial Vehicle Operator Registration, and road building machines. For all of them, the legal blood alcohol number while driving those vehicles is zero, full stop.

A novice or young driver caught with any alcohol aboard faces an immediate roadside suspension of 7 days for a first occurrence, 14 days for a second and 30 days for a third, with monetary penalties and, on conviction, a fine that runs from $60 to $1,000 plus licence consequences under the novice system that can include cancellation. None of that requires anyone to be near 80. The same driver can then face the full criminal over 80 machinery on top if the readings are high enough, which is how a 20 year old with a G2 can leave one Markham stop with administrative suspensions, novice sanctions and a criminal charge stacked together.

For families, the practical message is straightforward. If your son or daughter has been stopped, the file needs the same document driven review as any adult case, plus attention to the novice licence fallout that adults never see. Bring all of it to the consultation, because the licence side often has deadlines that pass while everyone worries about the criminal side.

Commercial drivers carry a version of the same double exposure: the zero rule while working, the 80 rule while driving personally, and an employer relationship that rarely survives silence. How and when to inform an employer is a strategy conversation to have with counsel early, not a form letter.

Over 80, impaired and refusal: one stop, three different fights

A single Markham traffic stop can produce up to three separate charges, and they fail in completely different ways. Over 80 is the number case described on this page. Impaired operation is the observation case, about your driving, your speech, your balance and the officer's opinion of your ability. Refusal is the process case, about a demand and your response to it. The law limits how many convictions can arise from the same transaction, which becomes practical leverage when multiple counts are on the table.

Strategy differs accordingly. If your stop produced several counts, start with our Markham DUI lawyer page for the whole first 24 hours picture, then our Markham breath sample refusal page if you are charged with failing to comply. For the province wide treatment of the number offence, see our Ontario driving over 80 page.

Why Markham drivers call Kazandji Law

Kazandji Law defends over 80, impaired and refusal files across York Region from our Thornhill office at 7191 Yonge Street, Suite 310, minutes from Markham, with offices in Toronto at 180 John Street, Unit 320, in North York and in Oakville. Founding partner Fadi Matthew Kazandji built the driving practice on document work: instrument records read line by line, timelines rebuilt to the minute, and Charter applications brought when the process failed. Number cases reward that temperament.

The firm also covers the provincial side of Ontario driving law, from careless driving at the York Region provincial offences court to licence consequences after conviction, so your case gets planned across every forum it touches. See the full Markham criminal defence practice, then call. The consultation is free, and the earlier it happens the more of the audit trail still exists.

Markham driving over 80 FAQ

This page is general legal information for Ontario drivers, not legal advice about your specific situation. Criminal Code provisions described here are current to May 26, 2026, and Ontario administrative penalty figures reflect ontario.ca as updated January 2, 2026. Every case turns on its own facts. Kazandji Law, 180 John St, Unit 320, Toronto, ON M5T 1X5. Free consultation: 647-588-3234.