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Over 80: A Drinking a Driving Offence Explained

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Over 80: A Drinking a Driving Offence Explained

Over 80

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What Does The Term “Over 80” Actually Mean?

As you probably already know, the Canadian criminal law contains several offences that loosely fall under the umbrella of a DUI (driving under the influence). One of those offences is known as Over 80; but what exactly does it mean, and what is it referring to? Simply put, the term Over 80 refers to the offence of operating a motor vehicle (or having care and control of a motor vehicle) while an individual’s blood alcohol concentration (BAC) is equal to, or more than, 80 milligrams of alcohol in 100 millilitres of blood. Therefore, 80 milligrams of alcohol in 100 millilitres of blood is the criminal limit, which we usually refer to as 0.08 (said: point zero eight).

It is important to note that your ability to operate a motor vehicle may not actually be impaired despite your blood-alcohol concentration being in excess of 0.08. However, this is not a relevant consideration for this offence. The offence is completed once an individual’s blood-alcohol concentration is equal to, or in excess of, 0.08 and they operate a motor vehicle (or have care and control of it). Let connect you with a top Toronto Over 80 Lawyer who stays on top of the most current legal issues. 



What Does The Crown Attorney Need To Prove To Convict Me Of Over 80 Where Bodily Harm Or Death Has Resulted?

In situations where an individual whose blood-alcohol concentration is over 80 causes injury or death to a motorist or bystander, then they’re likely to be charged with the more serious offence or Over 80 causing bodily harm, or Over 80 causing death. In either case, the Crown Attorney must prove to the court at trial that the accused individual’s operation of a motor vehicle was a substantial contributing factor to the accident, which resulted in the injury or death of the motorist or bystander. Contrary to popular belief, there is no onus upon the Crown to show evidence that the accused individual drove in a negligent or dangerous manner. The only additional evidentiary requirement imposed on the Crown is to show that the accused individual’s vehicle was a significant cause of the accident that resulted in injury or death. Contact us at, and we'll connect you with a top Toronto Over 80 Lawyer.



Is It Legal For The Crown To Use Evidence Collected By The Police During A Roadside Investigation Against Me In Court?

This is a bit of a tricky question, but the outright answer is no. Technically, any evidence obtained by police during a roadside investigation before the accused was given an opportunity to consult a lawyer cannot be used against them at trial. The law does this to protect Canadians from having conscripted statements used against them at a criminal trial. In this context, a conscripted statement refers to the questions that a motorist is required to answer by law if asked by police. For example, if you’re involved in a traffic accident, then the law requires you to provide police with a response to any questions related to the accident investigation. Even if you haven’t consulted a lawyer yet, you’re still legally obligated to answer their questions. As a result, the law states that your responses to those questions can’t be used at trial against you.

However, evidence obtained from a motorist before they’ve spoken to a lawyer can be used to form the basis for reasonable grounds, which permits the police to demand a breath sample from the suspect individual. In other words, the explanation that a driver provides police as to the reason for the accident can’t be used against them to prove impairment, but can be used to contextualize the officer’s reasonable belief that a crime did occur.

It is important to note that the rule excluding evidence gathered before an accused individual speaks with legal counsel does not apply to any visual observations made by law enforcement at the roadside. In fact, most observations regarding the physical state of the accused (like red eyes, slurred speech, unsteadiness on one’s feet, and an odour of alcohol) made by a police officer can be used against the accused individual at their trial. At, we make it our business to know the best Toronto Over 80 Lawyers and connect you with them. Contact a client service specialist now to take advantage of our free lawyer referral service, and get in contact with a top Toronto Over 80 Lawyer. 



The Cops Showed Up At My House! Are They Allowed To Investigate Me For A DUI Offence If I’m At Home?

In situations where the accused motorist has left the scene and returned home, police are legally entitled to show up at their home and investigate further if they have reasonable grounds to suspect that the accused motorist was operating a motor vehicle while impaired, or while their blood-alcohol concentration was over 80. The extent to which the investigation can continue at the home of the accused motorist will depend upon their willingness to cooperate with the police’s investigation. The police are legally entitled to walk up the driveway and ring the doorbell. However, if the residents of the home ask police to leave, then they must comply, unless they acquired sufficient evidence through other sources to make an arrest for impaired driving or over 80. If, however, police are not asked to leave the property before they’re able to gather the necessary evidence to make an arrest for impaired driving or over 80, then any further evidence that they gather will likely be found to have been obtained legally, or constitutionally. Contact us at, and we’ll put you in touch with the best Toronto Over 80 Lawyer for your case, which is one that you can afford and works well with you.



What’s The Difference Between “Reasonable Grounds To Believe” And “Reasonable Grounds To Suspect”?

In the context of a DUI offence, an officer is required to have reasonable grounds to suspect that the accused individual had alcohol in their body and had been operating (or having care and control) of a motor vehicle within the three preceding hours in order to make a breath sample demand. The law requires police to have objectively discernable facts to support their suspicion or belief, and only after they’ve acquired said facts can their suspicion or belief be considered reasonable in law.

It is important to note that what is meant by reasonable suspicion in this context is regards to the possibility, and not probability, of the event(s) in question occurring. The officer making this assessment must look at the totality of all the circumstances before drawing any conclusions. There are a plethora of observations that a police officer can make that alone, or combined with other observations, are sufficient to support reasonable suspicion on their part.


Odour of Alcohol

There is case law to support that an odour of alcohol emanating from the vehicle being investigated can be sufficient to furnish the officer with reasonable suspicion of impairment, and therefore, the right to demand further sobriety testing from the accused motorist. Some of the case law suggests that the odour need not be strong, nor need it come from the mouth of the driver. Additionally, some case law suggests that even when the driver has denied consuming alcohol, if the odour of an alcoholic beverage is detected by the investigating officer emanating from the vehicle, then this gives them legal grounds upon which to make a roadside screening demand using an ASD. Lastly, in situations where there is no odour of alcohol but where the driver has admitted to consumption, then the grounds exist upon which a roadside screening demand can be made.


Statements made by the accused motorist

When a motorist is pulled over by police, a short conversation between the two usually takes place at the driver’s window. Officers will typically ask motorists short, pointed questions designed to assess whether they’ve consumed any alcohol. The statements made by the motorist in response to the officer’s questions are admissible as evidence only to support the officer’s suspicion of impairment. The statements are not admissible as evidence to be used directly against the accused at their trial.

It is important to note here that if a motorist is questioned by police during a roadside stop regarding their alcohol consumption, they are under NO legal obligation to answer. That being said, if the motorist admits to consuming alcohol, that will be enough to give the officer reasonable suspicion of impairment. Once the officer has reasonable suspicion, they are empowered by law to make a roadside screening demand to have the motorist provide a sample of their breath into an ASD.


Requesting that the driver blow air at the officer

One of the more common investigative tools used by police in DUI investigations is to request the driver of the vehicle to blow air in the face of the officer so as to detect the odour of alcohol. A number of issues arise in this situation: firstly, the driver is not required by the law to comply with the “blow in face” demand made by the officer, and secondly, if the driver complies and the officer detects the odour of alcohol, then that will be sufficient to trigger reasonable suspicion of impairment on the part of the officer.


What if the officer sees an open liquor container in the car?

Simply observing an open liquor container in a motor vehicle is not sufficient evidence to trigger reasonable suspicion of impairment. However, if the officer also detects an odour of alcohol emanating from anywhere inside the vehicle, then that will raise the evidentiary foundation of the officer thereby triggering reasonable suspicion of impairment.


Other indicia of alcohol consumption/impairment

Some additional indicators used by law enforcement to detect if the motorist has been drinking are:

· Erratic/poor driving – usually the motorist is followed by the officer for a period of time during which observations are made regarding their driving.

· Admission of consumption by the motorist – if the driver admits to drinking ANY alcohol prior to driving, then that will be enough to trigger reasonable suspicion of impairment.

· Red/bloodshot/glossy eyes – this is one of the most often cited indicia by police.

· Confusion – if the driver seems confused or disoriented the officers will tend to suspect impairment.

· Slurred/incoherent speech – if a driver is slurring their words, or not making sense, then officers will typically suspect impairment.

It is important to note that the above indicators are not sufficient on their own to raise a reasonable suspicion of impairment. Rather, they usually need to be accompanied by a more determinative indicator, such as admission or odour. That is not a hard and fast rule, however, as the body of law in this area is somewhat conflicted. At, we'll ensure that you hire the right Toronto Over 80 Lawyer for your case.



How Does The Crown Attorney Prove The Existence Of Reasonable Suspicion At Trial?

The Canadian Charter of Rights and Freedoms requires that the evidence collected by the officer from the roadside stop be legally obtained. If it is not, then the evidence is inadmissible at trial. For the officer to legally obtain the evidence of impairment (breath sample into the ASD), he or she must have had a reasonable suspicion that the motorist was impaired, or had consumed alcohol before driving. Without reasonable suspicion, the officer is not legally empowered to make a roadside breath demand.

This means that at the trial of the accused individual, the Crown Attorney must have the officer articulate the foundation for their reasonable suspicion of impairment. This is done through direct-examination, as the officer is typically a Crown witness. In forming reasonable suspicion, the officer is entitled to rely on their personal observations of the motorist, as well as the observations of witnesses that may have been communicated to them. The court will then determine whether the grounds upon which the officer relied to make the roadside breath demand were objectively reasonable, and sufficient in law. If they are, then the roadside breath demand is valid, and the trial continues. If not, then the Crown’s case may be unwinnable. Contact us at, and we'll connect you with a top Toronto Over 80 Lawyer.



Under What Circumstances Can Police Demand That I Participate In Additional Roadside Sobriety Testing?

The Criminal Code clearly articulates the grounds upon which an officer can demand that a motorist submit to roadside sobriety testing. That is, once police have reasonable grounds to suspect (aka reasonable suspicion) that a motorist has been operating a motor vehicle (or having had care and control of that motor vehicle) within three hours of the consumption of alcohol, then they’re empowered to demand that the motorist submit to roadside sobriety testing.

In addition to the evidentiary standard required of officers, the issue of timing is also heavily regulated. Timing in this context refers to the exact moment that the officer makes the roadside sobriety demand of the motorist. The Criminal Code requires officers to issue the roadside breath demand as soon as that officer forms a reasonable suspicion that the motorist is impaired, or has consumed alcohol within the three preceding hours. That said, the exact circumstances of each case will be assessed by the court to determine if any delays in making the roadside breath demand were reasonable. For example, delays that result from securing the safety of law enforcement officers at the scene, or the readying of the ASD will be considered reasonable in the circumstances.

Once the police officer at the scene issues the breath demand to the motorist, then the motorist is obliged by law to respond (yes or no) forthwith to the demand, and if they agree, the test must be administered immediately thereafter. As a general rule, there shouldn’t be a delay in administering the breath test once the motorist has agreed, however, there are certain exceptions to this rule. For example, short delays that are used by officers to further investigate the scene, or to attend to other accident victims, are not considered unreasonable delays in law. Another common exception to the delay rule is where the officer at the scene has reason to believe that the motorist has consumed alcohol within 15 minutes prior to the officer making the demand, or where there’s reason to believe that the motorist has vomited in the past 15 minutes. In these scenarios, the delay is justified because of the possible presence of mouth alcohol, which is well-known to cause higher readings for those not actually over 80.

In addition to how and when a roadside breath demand is made, the identity of the officer making the demand is of great importance. The Criminal Code stipulates that only the officer who formed the grounds to issue the demand is legally entitled to make the demand. The exception to that rule is, however, that if the officer who originally formed the grounds for the demand communicated those exact grounds to another officer, who then made the breath demand on that basis.

With all that you have at stake, don't risk an Over 80 conviction just to save money on legal fees. You'll end up paying more in the end. At, we specialize in connecting you with the right lawyer for your matter. Whether you have a language barrier, financial constraints, or lack of transportation, we'll ensure you're connected with the right Toronto Over 80 Lawyer who speaks your language, is affordable, and lives in your area.  We encourage you to call us anytime, 24/7, to get a Toronto Over 80 Lawyer Referral. We're available by phone at (416) 419-6959, or online at, or click the button below for our referral form.