Beating Driving Over 80 Charge: Common Defences That Actually Work in Court
A charge for driving over 80 can feel like the ground shifting under you. Suddenly there are court dates, a licence suspension, insurance fallout, and the very real possibility of a criminal record. What many people don’t realize is that driving over 80 charge is far from a guaranteed conviction. The Crown has to prove its case to a high standard, and the procedures police must follow when collecting breath evidence are tightly regulated. When something goes wrong, a skilled defence lawyer can often turn that error into an acquittal or a reduction. The defences below are the ones that actually move the needle in Ontario courtrooms.
Charter Breaches: The Most Common Path to an Acquittal
The Canadian Charter of Rights and Freedoms governs every step of a roadside stop and arrest. Police must have lawful grounds to demand a breath sample, must inform you of your right to counsel without delay, and must give you a reasonable opportunity to speak privately with a lawyer before testing. When officers cut corners on any of these steps, the breath readings can be excluded under section 24(2) of the Charter. Without the readings, the Crown’s case typically collapses.
In practice, the breaches most often raised in court include:
- Arbitrary detention where the police lacked reasonable suspicion to make the initial breath demand
- Failure to facilitate the right to counsel before samples were taken at the station
- Unreasonable delay between the driving and the breath tests
- Unlawful entry into a home to make an arrest without a warrant or proper authority
A single successful Charter argument can be enough to end the case.
Challenging the Reliability of the Breath Readings
Instruments approved for use can only be considered accurate when operated properly and maintained on schedule, which is why defense counsel will frequently request maintenance logs, calibration records and technician notes in order to identify issues such as whether an instrument was calibrated within its manufacturer’s window; whether standard alcohol solutions had expired; whether technician followed proper observation period before each test; whether two readings compared within acceptable range etc. Any of these issues could cast serious doubt upon readings obtained through these instruments.
Biology matters too: burping, regurgitation, recent use of mouthwash or residual mouth alcohol can artificially increase readings if an officer did not observe an accused for the necessary length of time before administering the test. Medical conditions like gastroesophageal reflux disease have often been used successfully as defense strategies in such circumstances.
The “Bolus Drinking” and “Last Drink” Defences
Timing is of the utmost importance when it comes to alcohol absorption, so timing your drinking session just before driving could make all the difference in whether your blood alcohol concentration reached legal limit when breathalyzer test administered at station. This defense, known as “bolus drinking”, remains viable under some circumstances despite 2018 amendments to Criminal Code; provided there is credible evidence supporting drinking patterns and timing supported by expert toxicologists – an experienced attorney will know whether your case fits within these current legal parameters.
Identity, Care or Control, and Procedural Defences
Not every Driving over 80 case involves someone actively driving; many charges arise when someone is found sitting in a parked vehicle – often sleeping, sometimes waiting for a ride – without actively being driving themselves. The Crown must still establish care or control; in certain circumstances there may have been clear steps taken by the accused to ensure that their vehicle would not start moving without permission, thus negating any presumptions of care or control and allowing to rebutted with evidence to the contrary.
Procedural defenses also play an integral role. Were breath demands made “as soon as practicable”, samples taken within two hours of driving so as to satisfy the statutory presumption and disclosure complete and timely? Any failure by the Crown to comply with its procedures could result in charges being dropped or postponed.
Why Strategy Matters More Than the Reading
Clients tend to focus on the number on the certificate. While readings matter, what really counts are all of the events leading up to, during, and after breath tests – not simply how high or low your reading was. A 120 mg reading with serious Charter violations could make for an easy case; on the other hand, 90 mg with an impeccable police investigation may require much more work from Erickson Law’s defense team who scrutinize officer notes, video footage, technician’s certificates, timelines, timelines etc minute by minute until we find an angle that gives us success for our clients’ defense cases.
Being charged does not equal conviction, and Crown cases are rarely as solid as they first appear. Here you will find practical examples of defence strategies used successfully by lawyers every week in Ontario courts to secure withdrawals, acquittals, or reduced charges in Ontario courts. Early involvement from an experienced defense attorney gives them more opportunities when it comes to preserving evidence or filing Charter motions; so if you face an Over 80 charge in Toronto or GTA it would be prudent to consult one who has been handling these files for nearly 20 years; they know where weaknesses can be found within their case and know exactly where to look for potential weaknesses within it.
