Over 80
"Over 80" is shorthand for the criminal offence of operating a conveyance with a blood alcohol concentration of 80 milligrams of alcohol or more per 100 millilitres of blood. The offence is set out in section 320.14(1)(b) of the Criminal Code. Unlike the related offence of impaired driving, an "over 80" charge does not require proof of impaired ability — only that the BAC was at or above the threshold within two hours of operating the conveyance.
Under mandatory alcohol screening, police can demand a roadside breath sample from any lawfully stopped driver, with no need to suspect impairment. Failing or refusing to provide the sample is a separate criminal offence under section 320.15, and it carries the same penalties as an over 80 conviction.
How BAC is measured
BAC for criminal purposes is measured using an approved evidentiary breath testing instrument at the police station. Two samples are required, taken at least fifteen minutes apart. The lower of the two is used in court. Roadside approved screening device readings are not used to prove BAC at trial — they only provide grounds to demand the evidentiary samples.
Penalties on conviction
Over 80 carries mandatory minimum penalties. First offence: minimum $1,000 fine plus a 12-month driving prohibition. Second offence: minimum 30 days imprisonment plus a 24-month driving prohibition. Third or subsequent offence: minimum 120 days imprisonment plus a minimum 36-month driving prohibition. Higher BACs trigger increased mandatory minimums on a first offence — at 120 to 159 mg, the minimum fine rises to $1,500; at 160 mg or higher, it rises to $2,000. Causing bodily harm or death while over 80 attracts much steeper penalties (up to 14 years and life imprisonment respectively).
Collateral consequences
Beyond the criminal penalty, an over 80 conviction triggers a host of collateral consequences in Ontario: mandatory ignition interlock on licence reinstatement; mandatory completion of the Back on Track education or treatment program; significantly increased insurance premiums — often for several years; a permanent criminal record; restrictions on entry to the United States; and immigration consequences for non-citizens.
Defences
Common defences in an over 80 case include: Charter challenges to the lawfulness of the stop, screening demand, arrest, or right-to-counsel implementation; timing challenges (breath samples must be taken as soon as practicable, and within strict timing windows); instrument-based challenges (calibration, maintenance, qualified technician issues); evidence to the contrary in narrow statutory circumstances under section 320.31; and procedural defects in the certificate of analysis or related documents.
How Mass Tsang fights over 80 charges
The DUI lawyers at Mass Tsang LLP have over 30 years of combined experience defending impaired driving and over 80 charges across the Greater Toronto Area. Every file is examined for procedural, evidentiary, and Charter-based defences. For a deeper look at the law, see our blog posts on the over 80 rule and on how to fight an impaired driving charge.
Related glossary terms
