It is possible for a person’s blood alcohol concentration (BAC) to be below 80 mg of alcohol in 100 mL of blood while driving and then rise above that level after they stop driving.
However, that does not necessarily mean the person cannot be charged with an “80 and over” offence.
Canada’s impaired driving laws changed significantly in 2018. Under the current law, the offence does not simply ask what your BAC was at the exact moment you were behind the wheel.
Understanding why requires looking at how Canada’s impaired driving laws worked before 2018 and what changed.
How Did Canada’s Impaired Driving Laws Work Before the 2018 Changes?
Prior to 2018, the Criminal Code offence addressed having a blood alcohol concentration of 80 mg or more of alcohol in 100 mL of blood while operating or having care or control of a motor vehicle.
Bill C-46 introduced major changes to Canada’s impaired driving laws. The new alcohol-impaired driving provisions came into force on December 18, 2018.
One of the most significant changes was how the Criminal Code treats what is commonly called an “Over 80” offence.
How Did Bill C-46 Change “80 and Over”?
There are several important differences under the current law.
First, the offence no longer requires the Crown to establish that the accused’s BAC was 80 mg or more at the exact moment the person was operating the vehicle.
Second, the Crown does not need to establish that the person’s BAC remained at 80 mg or more throughout the entire period in which they were driving.
Instead, section 320.14(1)(b) of the Criminal Code makes it an offence to have a BAC equal to or greater than 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a vehicle.
This distinction can be important.
Someone’s BAC can continue to rise after they stop driving as alcohol continues to be absorbed into the bloodstream. As a result, it is possible for someone to have a BAC below 80 while driving and record a BAC of 80 or higher later.
The fact that the person may have been below 80 at the precise moment they were driving does not necessarily provide a defence under the current law.
What if You Drink Alcohol After You Stop Driving?
Bill C-46 also created a specific exception dealing with alcohol consumed after a person stops operating a vehicle.
This exception is found in section 320.14(5) of the Criminal Code.
For the exception to apply, several conditions must be satisfied. These include:
- The person consumed alcohol after they stopped operating the vehicle
- After they stopped operating, they had no reasonable expectation that they would be required to provide a breath or blood sample
- Their post-driving alcohol consumption is consistent with their measured BAC and with having had a BAC below 80 mg of alcohol in 100 mL of blood when they were operating the vehicle
All of these requirements matter.
Simply saying that you had a drink after you arrived home does not automatically mean the exception applies.
Why Are the Circumstances Surrounding Post-Driving Drinking Important?
If you consume alcohol after you stop operating your vehicle and seek to rely on the post-driving consumption exception, one of the important questions is whether you reasonably expected that police would require you to provide a breath or blood sample.
The surrounding circumstances can therefore become important.
Consider someone who leaves a restaurant and drives directly home without being involved in an accident or having any interaction with police. After arriving home, the person begins drinking. Police unexpectedly arrive later because someone reported the person’s vehicle.
Those circumstances could be very different from a driver who has just been involved in a collision and then goes home and begins drinking while knowing that police may soon arrive.
In the second scenario, establishing that there was no reasonable expectation of being required to provide a sample may be more difficult.
Each case depends on its particular facts.
Why Does the Timeline Still Matter?
Timing can be extremely important when reviewing an 80-and-over charge.
Relevant questions may include:
- When did you have your last drink before driving?
- When did you start driving?
- When did you stop driving?
- When did police first approach you?
- When did you provide a roadside breath sample?
- When were you arrested?
- When did you arrive at the police station?
- When was your first evidentiary breath sample collected?
- When was your second evidentiary breath sample collected?
- Did you consume alcohol after you stopped driving?
Sometimes only a few minutes separate these events. In other cases, much longer periods may pass.
Creating an accurate timeline can therefore be an important part of reviewing the evidence in an impaired driving case.
What Evidence Can Help Establish the Timeline?
An accused person’s memory and a police officer’s recollection can help establish when events occurred, but there may be many other sources of evidence.
These can include:
- Restaurant and bar receipts
- Debit and credit card transaction records
- Security camera footage
- Dashcam footage
- Police body-camera footage
- 911 calls
- Text messages
- Cellphone records
- Photographs and videos
- GPS and location data
- Ride-sharing records
- Witness accounts
- Police officers’ notes
- Breath-testing records
For example, a restaurant receipt may help establish when drinks were ordered. Security footage could show when someone left the restaurant. A 911 call could help establish when a vehicle was observed on the road.
Taken together, several pieces of evidence can sometimes create a detailed timeline of the events leading to an impaired driving investigation.
What Happens if the First Breath or Blood Sample Is Taken More Than Two Hours After Driving?
The two-hour period in section 320.14(1)(b) is important, but a breath or blood sample being taken more than two hours after driving does not necessarily mean the Crown has no case.
The Criminal Code contains evidentiary rules dealing with the timing of breath and blood samples and the use of those results to establish a person’s BAC.
The legal analysis can become more complicated when significant time has passed between the alleged driving and the collection of the samples.
For this reason, the exact times recorded in police notes, breath-testing records, video footage, and other evidence may need to be carefully reviewed.
Is “80 and Over” the Same as Impaired Operation?
No. They are related offences, but they are not the same.
An 80-and-over charge under section 320.14(1)(b) concerns a person’s blood alcohol concentration. The offence applies when the person’s BAC is equal to or greater than 80 mg of alcohol in 100 mL of blood within two hours after they stop operating a vehicle, subject to the exceptions provided by law.
Impaired operation under section 320.14(1)(a) concerns whether a person’s ability to operate a vehicle was impaired to any degree by alcohol, a drug, or a combination of the two.
This means the evidence required to establish the two offences can differ.
Someone may commonly refer to either allegation as a “DUI,” but the actual charges and evidence against the accused should be reviewed separately.
What Evidence Should Be Reviewed in an 80-and-Over Case?
Since an 80-and-over allegation centres on blood alcohol concentration and timing, several types of evidence may become important.
Depending on the circumstances, a lawyer may review:
- Why police stopped or investigated you
- The circumstances surrounding any breath demands
- The timing of breath demands and samples
- Documentation from the breath-testing equipment
- Police officers’ notes
- Police body-camera or dashcam footage
- Statements you made to police
- When and how much alcohol you consumed before driving
- Any alcohol consumed after you stopped driving
- Witness statements
- Records establishing when you were actually operating the vehicle
Which pieces of evidence matter most will depend on the circumstances of the individual case.
Have You Been Charged With “80 and Over”?
An 80-and-over charge can involve much more than looking at the number displayed on a breath-testing instrument.
When you stopped driving, when you consumed alcohol, when police approached you, when breath samples were collected, and whether you consumed alcohol after driving can all become relevant.
If you have been charged with 80 and over, impaired operation, refusal to provide a breath sample, or another DUI or impaired driving offence, A. Dhillon Law can review the evidence and explain the defence options that may apply to your case.
Contact A. Dhillon Law
A. Dhillon Law represents individuals charged with impaired driving and other criminal offences in Brampton and throughout Southern Ontario. Criminal defence lawyer Akash Dhillon can review the circumstances of your case, including the traffic stop, breath-testing evidence, police records, and the timeline surrounding the alleged offence.
Contact A. Dhillon Law or call (647) 963-3612 to schedule a free, no-obligation consultation.
