John Erickson has successfully represented individuals charged with drivinig over 80 offences throughout Toronto, the GTA, and southern Ontario for almost two decades. Driving over 80 refers to when an individual exceeds 80 milligrams of alcohol per 100 millilitres of blood.
Driving while intoxicated or impaired refers to driving a motor vehicle while under the influence of any mind-altering substance such as alcohol, prescription or illegal drugs, or sleep deprivation; such driving convictions don’t require evidence showing actual poor driving; rather it just needs to prove a breath sample reading exceeded legal threshold plus evidence which was admitted; that alone can secure conviction of conviction of those charged.
At this stage, the hard work begins. Most over 80 cases don’t succeed by contesting the science behind a breathalyzer; rather, they do so by scrutinizing how police collected evidence in the first place; if your Charter rights were breached at any point during your detention or at the station, even breath samples may never see court.
Call (416) 363-3612 or write to info@ericksonlaw.ca to book your free consultation today with an experienced DUI defence lawyer in Toronto.
Erickson Law provides criminal defence in Toronto for impaired driving (DUI) offences including:
∙ Can I Be Convicted of Driving Over 80 if I Was Not Driving When Police Arrived?
∙ What Is the Difference between Driving Over 80 Charge and an Impaired Driving Charge?
∙ What Happens to My Licence after I Am Charged with Driving Over 80?
∙ Should I Refuse the Breathalyzer if I Think I Will Fail?
∙ How Soon Should I Contact a Lawyer after Driving Over 80 Charge?
What the Crown Actually Has to Prove in Driving Over 80 Case
Driving Over 80 is defined as having more than 80 milligrams of alcohol per 100 millilitres of blood while operating or in care or control of a motor vehicle. In order for prosecution to succeed, each element must be proven beyond reasonable doubt: that you were operating or in care or control of a vehicle; two breath samples were collected within the legal window and analyzed on an approved instrument by a certified technician; and your readings exceeded legal limits.
Every element creates an opportunity. An effective defense does not revolve around whether or not someone was drinking; rather it must consider whether the Crown can show that all necessary steps were legally completed by using evidence collected legally from sources.
Charter Challenges Are the Backbone of Most Driving Over 80 Defences
The Canadian Charter of Rights and Freedoms governs police interactions with citizens, and impaired driving investigations fall under its purview. An “Driving over 80” reading occurs when your blood alcohol concentration exceeds 80 milligrams per 100 millilitres; but its usefulness to the Crown depends on it being obtained legally by officers; otherwise, section 24(2) of the Charter may include exclusion of breath samples as punishment – without these readings, over 80 prosecutions often falter.
Below are the eighty most frequently litigated Charter sections in recent cases.
Section 8 – Unreasonable Search or Seizure
An officer seizing your breath sample may violate your rights if there was no valid legal basis to demand that sample, or it was taken without complying with legal procedures and was done so unlawfully. Any readings can then be disregarded.
Section 9 – Arbitrary Detention
Police need reasonable suspicion that alcohol is present in your body for roadside screening demands and reasonable and probable grounds for evidentiary breath tests. When police escalate without meeting this legal threshold, detention becomes arbitrary.
Section 10(b) – Right to Counsel
Once detained, you must be informed immediately of your right to consult a lawyer and given ample opportunity to do so. Any delays, failure to provide privacy during conversations or attempts by authorities to rush off calls constitute grounds for legal challenge.
Challenging the Breath Sample Itself
Even when police follow proper procedure, breath samples can still be challenged. Approved instruments cannot always deliver accurate readings; as well as, qualified technicians operating the device must adhere to certain protocols in order for this device to operate reliably. An “Driving Over 80” reading refers to having more than 80 milligrams of alcohol per 100 millilitres of blood; this figure depends on what procedure was followed when producing it.
Samples should be collected as soon as practicable and at least 15 minutes should pass between them. A technician must observe you closely before testing, making sure you did not belch, regurgitate or place any substance into your mouth that might affect its readings. Furthermore, any instrument must have been calibrated and maintained appropriately with records to back this up; any failure to meet any one of these requirements could alter or falsify their accuracy as readings attesting to your blood alcohol concentration when driving can disprove their accuracy.
Impairment Charges Are Not Just About Alcohol
Many visitors to our firm are surprised at just how broad impairment offences can be. Driving while intoxicated or impaired refers to any mind altering substances or states – alcohol, prescription or illegal drugs and even sleep deprivation may impact driving behavior.
That breadth becomes crucial when an over 80 reading is combined with allegations of drug impairment or when officers gather evidence based on physical observations and breath readings near threshold. Each layer of allegation requires separate consideration and opens potential paths of defense.
The Care or Control Defence
Many are often surprised to learn that you can be charged with a Driving over 80 offense even without driving a vehicle yourself. An “over 80” offense occurs when you have more than 80 milligrams of alcohol per 100 millilitres of blood; simply being in care or control of any vehicle in this state counts; even if they never move. Courts have broadly interpreted “care or control”, such as sitting in your parked car, sleeping on its driver’s seat or waiting with keys in hand for someone.
Care or control charges are disputable; if there was no intention to drive and no plausible risk that it would start moving, an effective defence may succeed. Facts become critical here: where your keys were kept, whether the engine was running, alternative transportation arrangements made and what you told an officer are all evidence pieces in court proceedings.
Why Choose Erickson Law for Your Driving Over 80 Defence
Experience in all levels of legal practice. John Erickson has worked as both a Crown prosecutor and defence practitioner. With nearly two decades of experience on both sides, he understands how prosecutors construct driving over 80 case and where those cases may be vulnerable.
Pre-trial motion experience that yields results. Our past clients have successfully seen driving over 80 charges dropped or stayed following successful pre-trial applications – such as motions to exclude breath samples, challenge unlawful entry onto private property and raise unreasonable delays under section 11(b) of the Charter. Every case depends on its own facts but our track record demonstrates what a disciplined motion practice can accomplish.
Affordable legal representation that doesn’t sacrifice quality. Erickson Law offers free initial consultations and works on a block fee billing structure so you know your costs upfront; payment plans may also be available.
