Driving At or Over 08 means your blood alcohol level is over the legal limit as set by the Criminal Code of Canada.  This is a serious criminal offence that can involve harsh consequences both now and in the future.

If you are suspected of driving under the influence of alcohol or a drug in Canada, you will be asked to submit samples of bodily fluids (breath blood, urine) to test concentrations of alcohol or drugs.

In the case of alcohol, you can still be charged with a crime if you register under 0.08 but if you register at or above the legal limit, you will face a charge of Driving At or Over 08.

Federal and provincial limits

Driving At or Over 08 is sometimes referred to as “drunk driving”. This is a misnomer because you do not need to be drunk to be charged with this serious criminal offence.

A couple of drinks with friends is enough if you then get behind the wheel, operate a motor vehicle and are then stopped by police and suspected of drinking within the last two hours. If you have a high tolerance to alcohol, you may show no signs of impaired driving yet be over the limit.

Either way, little leniency is shown in Canada for anyone accused of driving under the influence of alcohol. You will likely be asked to submit a breath test and, possibly, a blood test if you are stopped and suspected of having consumed any alcohol.

In some provinces, immediate roadside sanction (IRS) laws now mean that your license can be suspended immediately at the discretion of law enforcement.

Federal limits

Under 320.14(1)(b) of the Criminal Code, federal law states that if your blood alcohol concentration (BAC) is at or above 80 milligrams of alcohol in 100 millilitres of blood, you will be charged with the offence of Driving At or Over 08.

Note that this is a separate offence from impaired driving, which relates to the manner in which you were driving.

With this offence, how you were driving is irrelevant if your blood alcohol concentration is above the legal limit.

Provincial limits

In many provinces, additional limits are set for drivers.

In most provinces, if your BAC is between 0.05 and 0.079, you will face consequences through the local immediate roadside suspension program.

You may have consumed just one drink before driving home and been stopped by police. This innocent act could result in an immediate license suspension.

These laws have tightened the way that penalties are administered for people who may not be over the federal limit.

Mandatory screening

Since December 2018, federal laws have made it mandatory for drivers to submit to a breath test if stopped and requested to do so by police officers.

Previously, officers required reasonable grounds to suspect that a driver had alcohol in their system before requesting a breath sample.

Now, a driver who refuses to provide a breath sample is criminally charged with refusal to provide a sample, which carries similarly harsh penalties to driving over the legal limit – both federal and provincial sanctions may apply.

What are the consequences of Driving At or Over 08?

According to the Criminal Code, penalties for a conviction for Driving At or Over 08 are as follows:

  • 1st offence: Mandatory minimum $1000 fine; Maximum 10 years imprisonment
  • 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
  • 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment
  • Penalties are more severe for having elevated levels of alcohol in the blood. There will also be a federal driving prohibition.

You may be eligible to drive after a period of suspension if you agree to participate in an Ignition Interlock Device (IID) program that some provinces run.

Depending on where in Canada you were arrested, the provincial penalties will include a license suspension and fees for reinstatement. Your Notice of Suspension will include suspension and reinstatement details.

Furthermore, do not underestimate the possible longer-term impact of a criminal conviction on your employability, travel and immigration status, insurance premiums, and so on.

How will we defend a charge of Driving At or Over 08?

To secure a conviction for Driving At or Over 08, the Crown Prosecutor must prove that your blood alcohol level was over the legal limit. It generally does this using a certificate of analysis.

In some cases, we can demonstrate that the certificate of analysis is inadmissible because of a technical error, in which case the prosecution’s main evidence disappears and the case is dismissed.

However, the law is highly complex, counterintuitive, and specialized. Alan Pearse has written an entire book on dealing with breathalyzer certificates – an indication of just how complex it can get.

If the police do comply with ALL of the requirements under the criminal code and the Canadian Charter, the blood alcohol level contained in the certificate of analysis is presumed to be the same as at the time of driving. However, experience shows that police officers regularly make mistakes and do not comply with every requirement.

This is what most defences are based on – casting doubt on whether the crown can rely on the statutory presumption described above.

Do you need legal advice about a charge of Driving At or Over 08?

Even if the evidence against you seems conclusive, Alan Pearse may be able to help you escape the most severe consequences of a charge of Driving At or Over 08.

Remember, you are not only facing the loss of your licence but a criminal charge. As such, you need to defend yourself vigorously. Arrange a free evaluation of your case to work out the next steps.