Impaired vs Over 80 – What’s the Difference?

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Impaired vs Over 80

In Canada, the two charges commonly associated with drunk driving are impaired driving, section 253(1)(a) of the Criminal Code, and over ’80, section 253(1)(b) of the Criminal Code.  These charges carry the same penalties and are often laid together and the accused may be found guilty of both although a conviction can be entered for only one of the charges at a time.

While to a lay person the two charges appear the same, they do have important differences which require different methods of proof on the part of the prosecution and different defences on the part of the accused.

Simply put, the offence of impaired driving consists of operating a motor vehicle, vessel or aircraft while your ability to do so is impaired by alcohol or drug.  Notice that this offence does not necessarily involve alcohol, a person may be charged with impaired driving if his ability to drive is impaired by drugs as well.

In case of impaired driving, we are not really concerned with the level of alcohol in the accused’s blood but only with the effect of alcohol or other intoxicating substance on the accused’s ability to drive.  In other words, some people may be impaired even with low level of alcohol in their system while others may not be impaired eventhough the level of alcohol in their blood far exceeds the legal limit.

In order to prove the charge of impaired driving the Crown has to show that the accused’s ability to drive was impaired and this is normally done through observations of police officers and other witnesses which normally focus on the manner of driving, balance, speech and other signs or indicia of impairment.

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It is very common at the impaired driving trial to hear testimony of the police officer reciting the following observations, which lawyers often refer to as “boiler plate” signs of impairment: red, bloodshot and watery eyes, slurred speech, difficulty with balance and bizarre or eratic driving.  While each of these signs sounds bad enough on its own and taken together they present a grave picture of a drunk driver out of control, it often turns out that probing by an experienced defence counsel reveals that such observations are either untrue or groundless or have innocent explanation which has nothing to do with impairment.  In many cases, the video recordings of the accused following the arrest is of great assistance to the defence as often times such recordings are sharply at odds with the officers’ reported observations.

The charge of over ’80, on the other hand, is only invoked in the cases involving alcohol and has nothing to do with impairment.  In other words you can be as sober as you want, however, if the Crown can prove that the concentration of alcohol in your blood exceeded the legal limit at the time of driving, you are guilty of this offence.  The legal limit in Canada is 80 milligrams of alcohol in 100 millilitres of blood, hence the common name of the charge – over ’80.

The level of alcohol in blood is determined by breath tests or, in certain cases, by blood tests.  In case of breath tests, an accused person has to supply at least two suitable samples into a special instrument designed to analyze such breath samples and determine the concentration of alcohol in his blood.  The question then is how do the police figure out what is your blood/alcohol level at the time of driving, after all the tests are performed some time later, already after an individual is placed under arrest and transported to the police station.  Well, unfortunately the law in this area provides for certain presumptions in favour of the prosecution and one of them is that if the first of the two breath tests is taken within two hours after the time of driving, the lowest level of alcohol determined by the two breath tests is deemed to have been the same at the time of driving unless the accused can present some evidence to the contrary which is accepted by the court.

How do you do that?  In some cases, the defence is one of bolus drinking, i.e., if the accused consumed a large amount of alcohol within fifteen minutes prior to being stopped, his blood/alcohol level at the time of driving may be less than 80 mg in 100 ml of blood but by the time of testing it may rise to the results obtained by the tests.  In order to advance this defence you need to engage a toxicologist who will determine based on the information supplied by you whether, based on your age, sex, weight, height, type and quantity of alcohol consumed and time of such consumption, you were in fact under the legal limit at the time of driving.

In other cases, the improper operation of the instrument used to obtain your breath samples or its malfunction can throw the results of tests in doubt.  Here, again, an expert toxicologist has to be consulted to determine whether there are any problems with the instrument or the way it was operated by a breath technician.

If the samples of breath are obtained later than two hours from the time of driving, the Crown has to engage its own toxicologist to “read back” the results to the time of driving, i.e., the toxicologist would calculate what the blood/alcohol level at the time of driving should have been based on the results of breath tests.  The toxicologist’s opinion is subject to certain assumptions which can be successfully challenged by an experienced defence counsel in many cases.

Although at the first glance it seems that once your breath samples are obtained and the results are over the legal limit your case is finished, in many cases it is very far from truth.  Apart from the situations described above, there are ways of challenging admissibility of the results as evidence against you either under the Criminal Code or the Canadian Charter of Rights and Freedoms.

For example, the Criminal Code provides for certain conditions under which the certificate confirming results obtained within two hours can constitute evidence of your blood/alcohol level at the time of driving.  One of such conditions is that the breath tests should be administered as soon as practicable and if the defence shows that this was not the case, the results may not be admissible to prove your guilt.

Under the Charter, every person has certain rights which have to be observed in cases where the police wants to obtain the person’s breath samples.  For example, the police have to have reasonable and probable grounds to demand breath samples from an individual, such individual has the right to consult a lawyer prior to providing breath samples, etc.  If the person’s rights under the Charter are breached, the defence can request that the breath sample results be excluded from evidence.

Without breath sample results the prosecution has no case against you on the charge of over 80 since these results are the main piece of evidence on this charge.  Accordingly, once the results are excluded from evidence, this charge must necessarily be dismissed.

The above information is definitely not exhaustive but clearly illustrates how technical and complex the drinking and driving charges are and why it is so important to be represented by an experienced impaired driving lawyer if you intend to fight them.

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Author: Ernst Ashurov

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