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DUI - Impaired Driving - Over 80

In Canada, the term DUI (driving under the influence) is used widely by people in everyday parlance, but is actually not a term that is used in the criminal law. There are, in fact, several types of DUI offences that are articulated by the Criminal Code of Canada, like:

  • Impaired Operation.
  • Over 80.
  • Care and Control.
  • Refuse to Provide Breath Sample.   

The area of criminal law dealing with DUIs is very technical and complicated. It requires a criminal practitioner to have specialized knowledge that is above and beyond the scope of the regular criminal law. At, we know who the best Toronto DUI Lawyers are, and we’ll find the right one for you based on your exact needs. You should never plead guilty or try and represent yourself when facing charges of drinking and driving. The potential consequences of a drinking and driving charge can affect your ability to work, travel and secure future employment. Additionally, the potential sanctions if convicted will definitely affect your ability to drive, your independence, and your overall wellbeing. Let connect you with a top Toronto DUI Lawyer who stays on top of the most current legal issues. 

What's A DUI?

Impaired Driving Explained:

Impaired driving, or impaired operation of a motor vehicle, is basically as it sounds: operating a motor vehicle while one is impaired by alcohol or drugs. So in terms of what the Crown Attorney has to prove in order to establish guilt, they’ll need to prove that the driver’s ability was impaired by alcohol or a drug at the time in question. Proof of impairment can obviously be supplied by a breathalyser test, but evidence of erratic driving, as well as observations of laboured physical movement by the accused, can also supply the necessary evidence. So for example, evidence from witnesses that they saw the accused drive erratically and weave in and out of the lanes may be used to support an inference of impairment. So too can personal observations of the accused which tend to reveal indicia of impairment, such as an odour of alcohol coming from the accused’s breath, red/bloodshot eyes, unsteadiness on their feet, and slurred speech. Contact us at, and we'll connect you with a top Toronto DUI Lawyer.

Over 80 Explained:

Operating a motor vehicle while your blood-alcohol content is over 80 milligrams in 100 milliliters of blood is the full, technical term for this offence. So as you may be able to tell from the full term, this offence is based on the concentration of alcohol in your blood while operating a motor vehicle. Therefore, unlike the offence of impaired driving, this offence doesn’t require the Crown Attorney to tender any evidence of impairment. All the Crown Attorney needs to show is that the accused (driver) in question had a blood-alcohol concentration exceeding 80 milligrams of alcohol in 100 milliliters of blood. Obtaining the accused’s blood-alcohol concentration is done through the use of a breathalyser machine.

Care and Control Explained:

Having care and control of a motor vehicle while your ability is impaired by alcohol or drugs is the full, technical term for this offence. Basically, this offence makes it a crime to get drunk and have care and control of a car. The main issue that’s looked at for this offence is whether an individual’s interaction with the vehicle posed a present danger, or a risk of danger, of the vehicle being set in motion. The Criminal Code also provides for a legal presumption, which states that when a person is in the driver’s seat of a motor vehicle, that person is said to be in care and control of that motor vehicle. This is actually very significant, because it creates a reverse onus on the accused: the accused will have to provide evidence that they were not in care and control of the vehicle. The most common scenario of someone being charged with this offence is where an individual had too much to drink and went and laid down in their car. A lot has to do with the location of the keys, and whether they were in the ignition or in some other spot, but basically the court will determine guilt based on the likelihood that the accused may have driven the car. Contact us at, and we'll connect you with a top Toronto DUI Lawyer.

Refuse to Provide Breath Sample Explained:

Unlike most crimes, this offence doesn’t require you to actually do anything. In fact, it’s the exact opposite – it’s based entirely on your refusal to comply. There are two separate stages in a DUI investigation where an accused person can “refuse”: at the roadside with an ASD, or back at the police station with the Intoxilyzer breathalyser. The roadside ASD is the device that police use when they pull over a motorist suspected of impaired driving/over 80. If police suspect that you have alcohol in your blood, they’ll demand that you provide a sample of your breath into an Approved Screening Device (ASD). If you refuse, you’ll be arrested for the offence of Refusing to Provide Roadside Breath Sample. The Intoxilyzer breathalyser is a large machine that is housed at the police station. Once the accused has been arrested for a DUI offence, they’re transported back to the police station where an officer will demand that they provide two samples of their breath into the breathalyser machine. If you refuse, you’ll be arrested for the offence of Refusing to Provide Intoxilyzer Breath Sample. The consequence of conviction for this offence carries with it the same penalties that apply to impaired driving, over 80 and care and control. 

Stopping Motorists Suspected of Impaired Driving

In Ontario, the Highway Traffic Act (HTA) empowers police to stop and investigate drivers who they suspect may be impaired by alcohol or drugs. The HTA doesn’t require police to have a reasonable suspicion that the driver may be impaired before stopping them. As long as the officer’s main reason for stopping the vehicle was to check the driver’s sobriety, then they’re acting within the bounds of the law.

The law also provides police with the power to set up roadside checkpoints for the purpose of checking for impaired drivers. The checkpoints are known colloquially to Canadians as R.I.D.E. or RIDE (Reduce Impaired Driving Everywhere). Typically at these checkpoints, the drivers are questioned briefly by the police, who assess the driver for signs of impairment.

Despite arming police with several investigative tools designed to deter and detect impaired driving, a number of constraints on police power are also in place to ensure a just investigation. A great example of this is the constraint on police power to demand a roadside breath test. Under the current criminal law, in order to lawfully require a person to submit a sample of their breath into a roadside screening device, the officer must reasonably suspect that the individual has alcohol or drugs in their system. In law, reasonable suspicion is an evidentiary standard, which means that it is assessed from the perspective of both the “reasonable person”, as well as from the subjective point of view of the officer. Whether the officer had the necessary reasonable suspicion will depend almost entirely on the context of each situation. For example, in a situation where the driver admits to consuming alcohol at some earlier point in time, then the officer will have the necessary reasonable suspicion. Conversely, where a driver denies consuming alcohol at any point in the night, and shows no visible signs of impairment, then the officer cannot be said to have formed reasonable suspicion. As such, a failure by the officer to establish that they had grounds to suspect that the driver had consumed alcohol or drugs may amount to a defence to a charge of “Over 80” and “Refuse Breath Sample”, because the officer’s unlawful breath demand would have the effect of invalidating the subsequent test results of the Intoxilyzer. Contact us at, and we'll connect you with a top Toronto DUI Lawyer.

Roadside Screening Device - The ASD

The roadside screening device, or Approved Screening Device (ASD) as it’s called in the Criminal Code, is a mobile breath-testing unit used by police to screen drivers suspected of impaired driving. The typical ASD will return results of “pass”, “warn” or “fail”. The machine is calibrated to register a fail result when the sample collected shows a blood-alcohol concentration of more than 100 milligrams of alcohol in 100 milliliters of blood. However, the ASD is only an investigative tool, and registering a fail will not support a conviction for a DUI offence. Nor will it act as proof of an accused’s blood-alcohol concentration. Its main purpose is to justify a demand for a further breath sample into an “approved instrument” or Intoxilyzer breathalyser. As a result, registering a fail on the ASD will permit the officer to arrest the driver for the offence of “Over 80”. At, we make it our business to know the best Toronto DUI 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 DUI Lawyer.

Are There Defences To A DUI?

The law in this field is very complicated and highly technical. You should not attempt to defend yourself using what is written on this page. Instead, contact us at, and we’ll put you in touch with the best Toronto DUI Lawyer for your case, which is one that you can afford and works well with. Below, we’ll look at five of the most common types of DUI defences.

Recent Drinking: This is where an individual consumes an alcohol beverage immediately before operating a motor vehicle and comes into contact with police. If recent drinking applies to your case, then it may give rise to two possible defences. The first defence exists where an officer has grounds to believe that the individual consumed an alcohol beverage within 15 minutes before making the breath sample demand. If this is shown to be the case, then the breath sample taken will not be valid, and cannot be relied on by the Crown Attorney as proof of impairment. The second defence is sometimes referred to as the “last drink defence” or the “post-offence drinking defence”. So for example, if the driver consumed an alcoholic beverage within 15 minutes of being stopped and subsequently provided a breath sample, then the sample will be deemed invalid as a result of the potential for contamination from residual mouth alcohol. Another example is where an individual returns home and consumes an alcoholic beverage after driving, and then provides a breath sample. The said sample will be deemed invalid as it is not representative of the individual’s blood-alcohol concentration at the time of driving. Therefore, it is of vital importance that you inform your Toronto DUI Lawyer of anything that you may have drank immediately before being pulled over.

Right to Counsel: Since the enactment of the Canadian Charter of Rights and Freedoms in 1982, every person has been guaranteed the right to be informed by law enforcement of the right to counsel. Specifically, police are required to (1) inform you of your right to seek and instruct counsel, and (2) facilitate the opportunity to speak with counsel. The aforementioned must be executed by the police within a reasonable amount of time. Additionally, if you request to speak with a specific lawyer, the police are required to make reasonable efforts to put you in touch with your counsel of choice. It should be noted here that timing is very important, and if not strictly executed by police, a number of defences based on timing may be available. As an example of law enforcement’s timing-related duties, police are required to obtain roadside breath samples from a suspected impaired driver forthwith – which means immediately. Another example is police are required to take the breath samples from the accused into the Intoxilyzer breathalyser as soon as practicable. The “as soon as practicable” requirement has been interpreted by the courts to mean that police cannot engage in any unnecessary activities from the time of the breath demand, until the accused has provided the two necessary breath samples. If police are tardy in obtaining the samples, then a court may find that the samples were not taken as soon as practicable, and therefore, will acquit an accused. At, we'll ensure that you hire the right Toronto DUI Lawyer for your case.

Right to a Trial within a Reasonable Time: The Charter guarantees any person charged with an offence the right to a trial within a reasonable time. What qualifies as reasonable will depend on the circumstances of the case. So for example, a delay of 18 months since the date of arrest is unreasonable if the Crown Attorney and/or the Court are to blame for the delay. In assessing who is at fault for a particular delay period, the court will look to see (1) who requested the adjournment, or who was at fault for the adjournment, (2) the bureaucratic backlog of cases that contributed to the delay, and (3) the actions of the accused and their lawyer, and whether or not they contributed to the delay. Not included in the Court’s calculation of delay is (1) waiting for disclosure, (2) completing the necessary stages of the criminal trial process, like holding Crown pre-trial meetings and judicial pre-trials, and (3) delay requested or caused by the accused or their counsel. If successful, this defence forms an absolute defence to the charges, which results in the charges being stayed under section 24(1) of the Charter.

Exploiting Deficiencies in the Crown Attorney’s Case: As you can probably guess, the strategy here is to hold the Crown Attorney to account and force them to prove each element of the offence beyond a reasonable doubt. Since this is a very technical area of the criminal law, the Crown will have to ensure that it covers all the bases, and knows all the evidence. For example, the police are required to recalibrate the ASD every 14 days, and the Intoxilyzer every 7 days, to ensure that their readings remain accurate. If the police fail to comply with that requirement, then the reliability of the results produced by each device can be called into question by the defence. If the court determines that the reliability of the machines has been compromised due to improper maintenance, it may exclude any results obtained from them, which will likely result in an acquittal.   In addition to the technical defences of DUI law, there are also constitutional defences. For example, the police are constitutionally required to have reasonable and probable grounds to make an arrest, as well as to make the breath sample demand for the Intoxilyzer. If the court determines that they lacked the requisite reasonable and probable grounds, it may deem the arrest to have been unlawful, and dismiss the charges against the accused. At, we'll use our industry knowledge to connect you with the right Toronto DUI Lawyer for your case. We know the strengths and weaknesses of many of Toronto's DUI Lawyers, and so we're able to connect you with the Toronto DUI Lawyer that best fits your needs.

What Are The Penalties For A DUI Conviction?

If convicted of a DUI offence, you'll be fined a minimum of $1000.00 for a first offence, as well as having a conviction registered on your criminal record. If you're convicted a subsequent time, you'll almost certainly face jail time, with a second conviction carrying a minimum 30 days in jail, and a third conviction carrying a minimum 120 days in jail.

You'll be prohibited from driving anywhere in Canada, and even the United States, for a period of 1 year for a first offence. The driving prohibition period can be shortened to 90 days if your blood-alcohol content was within a certain range, and there are no other aggravating circumstances. If your case is eligible to have the prohibition period shortened, you'll need to agree to use an ignition interlock device for the remaining 270 days. Installation of this device can cost upwards of $600, and the monthly rental and maintenance fee can exceed $150/month.

In addition to the legal consequences that may ensue upon conviction for a DUI offence, there are also several financial consequences that may affect you. Firstly, your insurance premiums are almost certain to skyrocket within 6 months of conviction. In fact, some drivers in Ontario are unable to secure motor vehicle insurance with a private insurer as a result of their DUI conviction. They're forced to enroll with Facility Association, which deals only with high-risk drivers, and charges exorbitant premiums.

With all that you have at stake, don't risk a DUI 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 DUI 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 DUI Lawyer Referral. We're available by phone at (416) 419-6959, or online at, or click the button below for our referral form.

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