Criminal Defence · Driving Over 80 (Criminal Code s. 320.14)

Over 80 Lawyer in Ontario

Reviewed by Fadi Matthew Kazandji, Founding Partner, Kazandji Law · Toronto criminal defence · Last reviewed: July 2026

An over 80 charge in Toronto usually starts the same way: a RIDE lane on a Friday night, a lane change near the Gardiner, or a routine stop that turns into a roadside breath demand. Within a few hours you are handed a 90-day suspension, your car is towed, and you have a criminal charge and a court date. It feels like the machine has already decided your case. It has not. An over 80 prosecution is built on technical evidence and strict procedure, and that is precisely what makes it defensible.

At Kazandji Law, our criminal defence team defends drivers charged with over 80 and related driving offences across Toronto and the Greater Toronto Area. This page explains what an over 80 charge actually is under the 2026 Criminal Code, how breath testing is supposed to work, the real penalties — federal and provincial — and the defences that most often lead to a charge being withdrawn or a reading being excluded. If you would rather talk it through now, call 647-588-3234 for a free, confidential consultation.

One point up front, because it trips people up constantly: over 80 is not the same charge as "impaired driving." Impaired operation under section 320.14(1)(a) is about your ability being affected by alcohol; over 80 under section 320.14(1)(b) is about a number. You can be acquitted of impaired driving and still convicted of over 80 on the same night — or the reverse. They are commonly laid together, and they are defended differently.^[1]

What an "over 80" charge really means

"Over 80" is the everyday name for the offence in section 320.14(1)(b) of the Criminal Code. The provision makes it an offence to have, "within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood."^[1] In the units most people recognize, 80 mg of alcohol in 100 mL of blood is 0.08 — which is why you also hear it called "over 0.08" or "point-oh-eight."

Read that language carefully, because two things in it decide most cases:

• "Equal to or exceeds 80." The threshold is met at exactly 80, not only above it. A reading of 80 is caught; a reading of 79 is not. This is why the precision of the instrument, and the way the samples were taken, matters so much.
• "Within two hours after ceasing to operate." The offence is defined by your BAC in the two-hour window after you stopped driving — not by your BAC at the moment you were behind the wheel. This is the single biggest change Parliament made in 2018, and it reshaped how these cases are fought.

The 2018 "within two hours" reframing

Before December 2018, the old offence (former section 253(1)(b)) was framed around your BAC "at the time of driving," and the Crown relied on a statutory "presumption back" to relate a later station reading to the time of the offence. The current regime, enacted in 2018, changed the structure: the offence is now simply having a prohibited BAC within two hours of operating a conveyance.^[1] In practice this makes the breath reading even more central — the number is close to the whole case — and it narrowed the old "I had a drink after I got home" argument down to a single, tightly defined exception.

The narrow "intervening drink" exception

That exception lives in section 320.14(5). A person does not commit the over 80 offence if all three of the following are true: (a) they consumed alcohol after they stopped driving; (b) after they stopped driving, they had no reasonable expectation that they would be required to provide a breath or blood sample; and (c) their post-driving drinking is consistent, on the science, with a BAC that was under 80 at the time they were actually driving.^[2] This is often called the "intervening drink" or "bolus/post-driving drinking" defence. It is real, but it is deliberately narrow — the "no reasonable expectation of a demand" condition, in particular, defeats the classic scenario where someone drinks after a collision precisely because they anticipate the police. It usually requires supporting evidence and, frequently, a toxicologist. It is not a loophole; it is a precise carve-out that has to be established on the facts.

How breath testing works — and why procedure is everything

You cannot understand an over 80 defence without understanding how the reading is produced. There are two very different devices, and they do two very different jobs.

The roadside screening device vs. the evidentiary instrument

At the roadside, an officer typically uses an approved screening device (ASD) — a handheld unit that gives a pass/warn/fail-type result used to form grounds. Under section 320.27(1), an officer who has reasonable grounds to suspect you have alcohol in your body and operated a vehicle in the preceding three hours may demand a roadside breath sample or physical coordination tests.^[3] Since 2018, section 320.27(2) also permits mandatory alcohol screening: if the officer already has an ASD with them during a lawful stop, they may demand a roadside sample without needing a specific suspicion that you have been drinking.^[3] The ASD result is generally a screening tool, not the evidence that proves the charge.

The number that actually founds an over 80 charge comes from an approved instrument (an evidentiary breath-testing machine, such as an Intoxilyzer-model instrument) operated at the station by a qualified technician. The rules that govern that testing are set out in section 320.31 of the Criminal Code, and they are strict.^[4]

What section 320.31 actually requires

Section 320.31(1) provides that the results of an approved-instrument analysis are conclusive proof of your BAC only if a specific set of conditions is met. Where the two results differ, it is the lowest reading that counts. The statutory conditions include:^[4]

• A system blank test before each sample whose result is not more than 10 mg of alcohol in 100 mL of blood (confirming the instrument is not carrying over alcohol from a previous test or the ambient air);
• A system calibration check before each sample whose result is within 10% of the target value of an alcohol standard certified by an analyst (confirming the instrument is reading accurately against a known standard);
• An interval of at least 15 minutes between the two samples; and
• Two results that, rounded down to the nearest multiple of 10 mg, do not differ by more than 20 mg of alcohol in 100 mL of blood (confirming the readings are consistent with each other).

Every one of these is a place a defence can be built. If the blank or calibration checks are missing or out of tolerance, if the samples were not properly spaced, if the two readings diverge too far, or if the maintenance and certification records for the instrument or the alcohol standard cannot be produced, the "conclusive proof" status of the reading is in play — and without that reading, an over 80 prosecution often has nothing left.

Over 80 penalties in Ontario: the federal charge

Over 80 is a hybrid offence, meaning the Crown chooses whether to proceed by summary conviction (less serious) or by indictment (more serious). The maximum penalties in section 320.19 are ceilings for the worst cases, but the minimum penalties are what make even a first over 80 charge so serious: they apply on any conviction and cannot be waived by the judge.^[5]

The mandatory minimum fine rises with the reading. Under section 320.19, a first-offence over 80 conviction carries these minimum fines, keyed to your BAC:^[5]

Two further points that matter in practice:

• Repeat offences escalate to mandatory jail. The minimum on a second offence is 30 days' imprisonment, and on each subsequent offence 120 days' imprisonment, regardless of whether the Crown proceeds summarily or by indictment.^[5]
• A conviction brings a mandatory driving prohibition. Under section 320.24, on a first offence the court must impose a driving prohibition of not less than one year and not more than three years (longer for repeat offences), on top of any other penalty.^[6] This is a federal, Canada-wide prohibition, and it is separate from the provincial licence suspension described below.

There is a critical takeaway here: because the minimum fine and the minimum prohibition are locked in by statute on any conviction, the way to protect a driver is almost always to attack whether there should be a conviction at all — not to hope for leniency at sentencing.

The separate Ontario penalties: 90-day suspension, impound, and interlock

Alongside the criminal charge, Ontario imposes its own administrative penalties under provincial law — and these start immediately, long before your case is ever decided in court. This surprises many people: you can be penalized by the province while you are still presumed innocent of the criminal charge, because the two systems are separate.

According to the Government of Ontario, a driver caught at a BAC of 0.08 or more (or who fails or refuses a testing demand) faces, on a first occurrence:^[7]

• an immediate roadside 90-day licence suspension;
• a 7-day vehicle impoundment;
• a $550 penalty and a mandatory 8-hour education course; and
• a licence reinstatement fee to get your licence back.

These are administrative, not criminal — but they are real, and they land right away. Then, if you are convicted of the criminal over 80 charge, Ontario adds its own post-conviction consequences on top of the federal prohibition. For a first conviction, the province imposes a licence suspension of at least one year, a mandatory education or treatment program, and installation and use of an ignition interlock device for at least one year. Repeat convictions carry three-year suspensions, longer interlock requirements, mandatory medical evaluations, and — at the third and fourth convictions — the possibility of a lifetime suspension.^[7]

Ontario also runs a "warn range" scheme for readings between 0.05 and 0.079, which is below the criminal threshold but still triggers short administrative suspensions and penalties.^[7] If your reading was in that band, you are not facing an over 80 criminal charge, but you may still be dealing with a provincial suspension — and it is worth getting advice about that too.

What happens after an over 80 arrest, step by step

Knowing the sequence helps you see where a defence gets built. Most over 80 files in the Greater Toronto Area move through the same stages in the Ontario Court of Justice.

1. The stop, the screening, and the demand

Almost every over 80 case begins with a vehicle stop — a RIDE checkpoint, a traffic infraction, or a stop after a report of poor driving. The officer forms grounds (or uses mandatory alcohol screening), makes a roadside ASD demand, and, if that is failed or the officer otherwise has grounds, makes a formal demand for evidentiary breath samples. How and when each demand was made, and whether the officer had the legal authority for it, is frequently the whole case.

2. The station: two breath samples and the right to counsel

You are taken to the station, where a qualified technician takes two samples on an approved instrument at least 15 minutes apart. At the point of arrest or detention your right to counsel under section 10(b) of the Charter is engaged — you must be advised of your right to a lawyer and given a genuine, private opportunity to speak with one before the breath tests, and in some circumstances a second consultation is required. A breach here can lead to exclusion of the breath readings.

3. The roadside suspension and release

The province's 90-day suspension and 7-day impound are applied on the spot. On a straightforward first over 80 charge, most people are released on an appearance notice or undertaking with a court date. Where there is a collision, injuries, a prior record, or related charges, a bail hearing may be required, and arriving with a workable release plan matters.

4. Disclosure

Your lawyer obtains disclosure — the Crown's evidence. The Crown's constitutional duty to disclose all relevant material comes from the Supreme Court's decision in R. v. Stinchcombe.^[8] In an over 80 case, disclosure should include the officers' notes and grounds, the ASD and instrument records, the qualified technician's certificate and the printouts showing the blank tests, calibration checks and both readings, the maintenance and certification records for the instrument and the alcohol standard, and any in-car or booking-area video. A meticulous review of this material is where most winning over 80 defences begin.

5. Crown pre-trial, Charter applications, and trial

Most cases involve a Crown pre-trial where your lawyer tests the strength of the reading and the procedure and explores resolution. If the case does not resolve and there are viable issues, it proceeds to trial — very often built around a Charter application to exclude the breath readings, or a challenge to whether the section 320.31 conditions for "conclusive proof" were met. From first appearance to conclusion, a contested over 80 case commonly takes several months.

Common over 80 defences

Over 80 cases are won on detail, and the right strategy depends entirely on the disclosure in your specific file. The issues our lawyers most often raise include:

• No lawful basis for the stop or the demand (Charter s. 8 and s. 9). If the detention was arbitrary, or the officer lacked the reasonable suspicion required for a section 320.27(1) roadside demand (in a non-mandatory-screening case), the samples that flowed from it are vulnerable. Section 8 protects against unreasonable search and seizure, and a breath sample taken without lawful authority is exactly that.
• Denial of the right to counsel (Charter s. 10(b)). Were you promptly advised of your right to a lawyer and given a real, private opportunity to exercise it before the breath tests? Delays, a denied second consultation, or questioning before counsel can ground exclusion.
• Instrument and procedure challenges under s. 320.31. We scrutinize whether the blank tests and calibration checks were done and were within tolerance, whether the samples were at least 15 minutes apart, whether the two readings were within 20 mg of each other, and whether the maintenance and certification records support the "conclusive proof" the Crown relies on. Since R. v. St-Onge Lamoureux, the way to raise a reasonable doubt about a reading is generally to show the instrument was malfunctioning or was operated improperly — which is a documentary and technical fight, and one we take on directly.^[9]
• The intervening-drink exception (s. 320.14(5)). Where the facts genuinely support it — post-driving drinking, no reasonable expectation of a demand, and a toxicological analysis consistent with a sub-80 BAC while driving — this statutory exception can defeat the charge.^[2]
• Delay-based applications (Charter s. 11(b)). If the case takes too long to get to trial, the ceilings set in R. v. Jordan may support a stay of proceedings.^[10]
• Exclusion of evidence (Charter s. 24(2)). Where a Charter breach is established, the court applies the three-part test from R. v. Grant: the seriousness of the state's Charter-infringing conduct, the impact on the accused's protected interests, and society's interest in a trial on the merits. In over 80 cases, exclusion of the breath readings usually ends the prosecution.^[11]

These are issues that may be available — not guarantees. No responsible lawyer promises a result before reviewing the disclosure. What we promise is a rigorous, honest assessment and a defence built around the specific evidence in your case.

Common myths about over 80 charges

"The machine says I'm over, so I'm guilty." Not so. The reading is only "conclusive proof" if the strict conditions in section 320.31 were met, and it can be excluded entirely if it was obtained in breach of the Charter. The number is the start of the analysis, not the end of it.

"Over 80 and impaired driving are the same charge." They are different offences. Over 80 (s. 320.14(1)(b)) is about your BAC; impaired operation (s. 320.14(1)(a)) is about your ability being affected. You can beat one and be convicted of the other.

"I wasn't drunk, so the charge can't stick." Over 80 does not require any visible impairment at all. It is a number-based offence — if a valid reading is at or over 80, whether you seemed fine is legally beside the point.

"I'll just have a drink after I get home and blame that." The intervening-drink exception in section 320.14(5) is narrow. It requires, among other things, that you had no reasonable expectation of a breath demand — which rules out drinking after a crash to muddy a reading, and generally needs expert evidence.

"The 90-day suspension means I've already lost." The provincial 90-day suspension is an administrative penalty that is separate from the criminal case. It does not decide the criminal charge, and it does not mean a conviction is inevitable.

"It's a first offence, so a lawyer can't change much." A first over 80 conviction carries a mandatory fine, a mandatory one-year driving prohibition, a one-year interlock requirement, and a permanent criminal record. Because those minimums are fixed, the value of a defence is greatest early — before a conviction is entered.

What to do if you have been charged with over 80

1. Say as little as possible. Be polite and provide identification, but exercise your right to remain silent. Do not try to explain how much you had to drink.
2. Exercise your right to counsel. Ask to speak with a lawyer as soon as you are detained or arrested, and before the breath tests if you can.
3. Write down everything you remember while it is fresh — the time of the stop, what was said, when each demand was made, how long you waited, whether you spoke to a lawyer, and the timeline of the breath tests.
4. Keep all your paperwork — the suspension notice, the release documents, the impound paperwork, and any Ministry of Transportation correspondence. Save relevant receipts.
5. Do not post about the case online and do not discuss the details in writing with friends.
6. If you are not a Canadian citizen, tell your lawyer immediately — an over 80 conviction can carry immigration consequences, so avoiding a conviction may matter even more.

Why choose Kazandji Law for your over 80 defence

Kazandji Law is a Toronto criminal and family law firm built on a proactive, no-nonsense approach with a genuine personal touch. Over 80 cases reward preparation — a working command of Charter litigation, a close reading of the qualified technician's records and instrument printouts, and the judgment to know when to run a section 8 or 10(b) application and when to press a section 320.31 challenge. Our team brings that preparation to every driving file, whether it is a first over 80 charge with a reading just over the line or a more serious matter involving a high BAC, a refusal, or a collision.

We appear in the Ontario Court of Justice and Superior Court locations across the Greater Toronto Area — including the criminal courts in downtown Toronto — and we defend over 80 charges wherever they arise: downtown Toronto, North York, Scarborough, Etobicoke, Markham, Vaughan, Richmond Hill, Brampton, Hamilton, Newmarket, and beyond. Our Toronto office is located at 180 John St., Unit 320. You can meet our team, review our case results, and explore our full range of driving offence defence services — from impaired driving and drug-impaired driving to refusing a breath sample.

Frequently asked questions

What does "over 80" mean in Ontario?

"Over 80" is the common name for the offence in section 320.14(1)(b) of the Criminal Code: having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood (that is, 0.08) within two hours of driving. It is a federal criminal offence, and it is separate from the offence of impaired driving.

Is over 80 the same as impaired driving?

No. Impaired operation under section 320.14(1)(a) is about your ability to drive being affected by alcohol or a drug. Over 80 under section 320.14(1)(b) is about your BAC being at or over the legal limit, regardless of whether you appeared impaired. They are frequently charged together, but they are distinct offences, and it is possible to be convicted of one and acquitted of the other.

What is the minimum penalty for a first over 80 conviction?

For a first offence, the Criminal Code sets a mandatory minimum fine of $1,000 where the BAC is 80 to 119, rising to $1,500 for a BAC of 120 to 159 and $2,000 for a BAC of 160 or more. A conviction also carries a mandatory driving prohibition of at least one year and, in Ontario, a mandatory ignition interlock requirement of at least one year. These minimums apply on any conviction and cannot be waived.

Can I go to jail for over 80?

A first over 80 offence carries a mandatory minimum fine rather than mandatory jail, though the maximum is up to two years less a day (summary) or up to 10 years (indictment). A second offence carries a mandatory minimum of 30 days in jail, and each subsequent offence a mandatory minimum of 120 days, no matter how the Crown proceeds.

What is the 90-day licence suspension?

In Ontario, a driver who registers a BAC of 0.08 or more (or who fails or refuses a testing demand) receives an immediate roadside 90-day licence suspension, plus a 7-day vehicle impoundment and a $550 penalty. This is an administrative provincial penalty that starts right away and is separate from the criminal charge — it applies even though you are still presumed innocent in court.

Do I have to plead guilty if the breathalyzer says I was over 80?

No. A breath reading is only "conclusive proof" of your BAC if the strict conditions in section 320.31 of the Criminal Code were met — including the blank tests, the calibration checks, the 15-minute spacing, and consistency between the two samples. And even a valid reading can be excluded if it was obtained in breach of your Charter rights. Many over 80 charges are defended successfully without any admission of guilt.

How does the breath test actually work?

At the station, a qualified technician takes two breath samples on an approved instrument at least 15 minutes apart. Before each sample, the instrument runs a system blank test (which must read no more than 10 mg) and a calibration check against a certified alcohol standard (which must be within 10% of the target value). If the two results differ, the lower one is used. If any of these steps was missed or was out of tolerance, the reliability of the reading can be challenged.

What is the "within two hours" rule?

Since 2018, the over 80 offence is defined by your BAC within two hours after you stopped driving, not by your BAC at the exact moment you were at the wheel. This makes the breath reading central to the case and narrows the situations in which after-the-fact drinking can be raised as a defence.

What is the "intervening drink" defence?

Section 320.14(5) provides a narrow exception: you do not commit the offence if you drank only after you stopped driving, you had no reasonable expectation at that point that you would be asked for a breath or blood sample, and the science shows your BAC while actually driving was under 80. It is a genuine defence but a limited one, and it usually needs expert toxicology evidence to succeed.

Will an over 80 conviction give me a criminal record?

Yes. Over 80 is a criminal offence, and a conviction results in a criminal record that can affect employment, professional licensing, and travel — U.S. border officers, in particular, treat impaired-driving-related offences seriously. Because the record and the mandatory penalties follow automatically from a conviction, avoiding the conviction is usually the central goal of the defence.

Can I drive for work while my over 80 case is ongoing?

The immediate provincial suspension applies regardless of your job, and options are limited while the 90-day suspension is in effect. After a conviction, Ontario's ignition interlock and reduced-suspension programs may allow some drivers to return to the road sooner under conditions. The best way to protect your ability to drive is to deal with the charge itself early — speak to a lawyer about your specific situation.

How much does an over 80 lawyer cost?

Fees depend on the complexity of the case and whether it resolves early or proceeds to a contested trial with Charter applications and possibly expert evidence. Kazandji Law offers a free initial consultation and will give you a clear picture of the process and the likely cost before you decide anything.

Sources & legal references

1. Criminal Code of Canada (R.S.C. 1985, c. C-46), s. 320.14 (operation while impaired; over 80 in s. 320.14(1)(b); "within two hours"), as enacted by S.C. 2018, c. 21: laws-lois.justice.gc.ca/eng/acts/c-46/section-320.14.html.
2. Criminal Code, s. 320.14(5) (exception — alcohol; the "intervening drink" carve-out): laws-lois.justice.gc.ca/eng/acts/c-46/section-320.14.html.
3. Criminal Code, s. 320.27 (roadside testing demand on reasonable suspicion; mandatory alcohol screening in s. 320.27(2)): laws-lois.justice.gc.ca/eng/acts/c-46/section-320.27.html.
4. Criminal Code, s. 320.31 (evidentiary breath testing: approved instrument, qualified technician, system blank and calibration checks, 15-minute interval, lowest result as conclusive proof): laws-lois.justice.gc.ca/eng/acts/c-46/section-320.31.html.
5. Criminal Code, s. 320.19 (punishment for over 80: hybrid; maximum 10 years by indictment; summary maximum $5,000 and/or 2 years less a day; minimum $1,000 first offence, 30 days second, 120 days subsequent; minimum fines of $1,500 for BAC 120–159 and $2,000 for BAC 160+): laws-lois.justice.gc.ca/eng/acts/c-46/section-320.19.html.
6. Criminal Code, s. 320.24 (mandatory driving prohibition on conviction: first offence one to three years): laws-lois.justice.gc.ca/eng/acts/c-46/section-320.24.html.
7. Government of Ontario, "Impaired driving" (0.08+ penalties: immediate roadside 90-day suspension, 7-day vehicle impoundment, $550 penalty, 8-hour course; warn range 0.05–0.079; post-conviction one-year suspension and one-year ignition interlock for a first conviction), updated Jan. 2, 2026: ontario.ca/page/impaired-driving.
8. R. v. Stinchcombe, 1991 CanLII 45 (SCC) (Crown's duty of disclosure): canlii.org/en/ca/scc/doc/1991/1991canlii45.
9. R. v. St-Onge Lamoureux, 2012 SCC 57 (constitutionality of the breath-testing scheme; limited grounds to challenge instrument reliability): canlii.org/en/ca/scc/doc/2012/2012scc57.
10. R. v. Jordan, 2016 SCC 27 (presumptive ceilings for unreasonable delay under Charter s. 11(b)): canlii.org/en/ca/scc/doc/2016/2016scc27.
11. R. v. Grant, 2009 SCC 32 (three-part test for exclusion of evidence under Charter s. 24(2)): canlii.org/en/ca/scc/doc/2009/2009scc32.

Disclaimer: This page provides general legal information about Canadian and Ontario impaired-driving and "over 80" law and is not legal advice. Laws, penalties, and administrative rules change, and how they apply depends on the specific facts of your case. For advice about your situation, contact a lawyer. Contacting Kazandji Law does not create a solicitor-client relationship until a retainer is signed.