Driving at or Over 80/0.08 in Calgary
A Driving At or Over 80/.08 charge is related to, but different from, “impaired driving”. While one offence can be committed without the other, they are commonly charged together.
The Criminal Code of Canada makes it an offence to “operate a conveyance” with too much alcohol or drugs in your blood. Technically, a conveyance includes motor vehicles, water vessels, aircraft, and railway equipment. Practically speaking, what we are really talking about in 99% of cases is a motor vehicle.
Having a blood alcohol level of 80 milligrams of alcohol per 100 millilitres of blood will place you “At or Over the Legal Alcohol Limit.” The specific offence this chapter refers to is found in Section 320.14(1)(b) of the Criminal Code, which reads as follows:
- Everyone commits an offence who, subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood
After changes made to the Criminal Code in 2018 in response to the legalization of marijuana, drivers are also prohibited from having a blood drug concentration that exceeds limits that are set by regulations. There are specific legal limits set for how much drug in the blood a person can drive with, and specific limits on how much of alcohol and drug combined someone can drive with. This section deals specifically with alcohol limits and testing. More information about “Drug Driving” can be found in other sections of this website, or by contacting our lawyers.
To test for the presence and quantity of alcohol in your blood, Parliament has made laws that permit the police to demand samples of your breath or blood. Police are authorized to demand a breath sample when they believe a person’s ability to operate a vehicle is impaired by alcohol, or the person’s alcohol level is over the legal limit. In addition, Parliament has made it an offence (in section 320.15 of the Criminal Code), to fail or refuse, without reasonable excuse, to comply with such a demand.
Recent changes to the Criminal Code are also intended to restrict use of the “intervening drinking defence.” If you are found to have a drug or alcohol concentration exceeding the legal limit within two hours of driving, you can be found guilty of an offence. The onus will be on you to prove that you had no reasonable expectation of being breathalyzed, that your consumption occurred after driving, and that your pattern of consumption after driving is consistent with your blood-alcohol level.
Bail Conditions for 80/.08 Charge
It is rare for the police to impose release conditions on someone charged with impaired driving. Only if this is your second, or subsequent offence in short order, would there be a need for restrictions such as not allowing you to be behind the wheel of a motor vehicle, or abstain from drugs/alcohol.
If you have a string of recent related conviction(s), the prosecutor may have a compelling argument to convince a judge that you should be kept in custody until your charges are dealt with. Even then, our lawyers can neutralize that argument by providing the judge a release plan showing that you are not a danger to re-offend.
The most significant condition that you will experience as a result of being charged is a provincial Alberta Administrative Licence Suspension (AALS). A law passed in Alberta automatically imposes a license suspension for anyone charged with driving at or over 80/.08. The Alberta Administrative License Suspension (AALS) lasts for 90 days, followed by a further 1 year administrative suspension for which you may participate in the Ignition Interlock Program.
Defending 80/.08 Charges
Many people believe that blowing at or over the legal limit means the case is hopeless. However, it is important to remember that the police must respect your constitutional rights at every stage of the process, from the time you are pulled over until you are released from the police station. They must also comply with numerous procedures, in the correct order, and in a timely fashion. Their failure to complete any one of these tasks correctly may justify an acquittal at trial, or an outright withdrawal of the charges. This is what many people refer to as “technicalities”, but it is these technicalities that can mean the difference between a criminal conviction and an acquittal.
Even experienced police officers make mistakes when dealing with people they suspect are driving with excess alcohol or drugs in their blood. To exploit any mistakes made by the police or prosecution, you need the benefit of experienced impaired driving lawyers.
Do not plead guilty simply to get your license back sooner. The provincial suspension will continue regardless of the outcome of your criminal charges. However, you can participate in the Ignition Interlock program after 90 days or you may be able to appeal your suspension to the Alberta Transportation Safety Board. This involves submitting an argument orally or in writing. The timeline for filing such an appeal is a maximum of 30 days from the date of the initial suspension. To learn more about this process, please contact us directly to determine whether your case meets the criteria for an effective appeal. Our criminal defence lawyers have considerable experience in this area and have been successful in having our clients’ licenses returned to them pending the results of their criminal charges. At your free consultation, we can discuss this option with you.
It is also vital that you do not drive while suspended. Failing to obey your suspension could result in a charge that will lead to automatic license suspension for a further six months.
Sentencing for 80/.08 Charges
The stakes are high. The penalties for this offence can have major consequences on your life, particularly in areas of employment, travel, and immigration. In addition to a period of jail of up to 10 years, there are strict minimum sentences for driving “over .08” in the Criminal Code as follows:
- First conviction:
- Readings of 80mg to 110mg of alcohol: fine of at least $1000;
- Readings of 120mg to 150mg of alcohol: fine of at least $1500;
- Readings of 160mg or over of alcohol: fine of at least $2000; and
- Minimum 1 year driving prohibition, with immediate eligibility for Ignition Interlock (blow box)
- Second conviction:
- Minimum 30 day jail sentence; and
- Minimum 2 year driving prohibition, with a three month ineligibility for Ignition Interlock (blow box)
- Third conviction or more:
- Minimum 120 day jail sentence; and
- Minimum 3 year driving prohibition, with a six month ineligibility for Ignition Interlock (blow box)
Exception to Minimum Sentence
The Courts may make an exception for you if you present evidence that you are addicted to alcohol or drugs, and need medical treatment to manage that addiction. Prior to the Criminal Code amendments introduced in 2018, this was known as a “curative discharge”, and allowed a person found guilty of this offence to not only avoid jail, but also a criminal record altogether. It was considered a rare exception to the mandatory jail sentences laid out above. In order to satisfy the Court that you deserved a curative discharge, you would have had to present complex medical evidence and the opinion of a healthcare specialist in a compelling, accurate, and persuasive way.
Since the 2018 amendments, a “curative discharge” is no longer available, but there nevertheless new “curative treatment” provisions which would allow the court to avoid imposing minimum jail and minimum driving prohibition sentences. These provisions are found in s. 320.23 of the Criminal Code. The conditions are that:
- The prosecutor consent to the delay of the sentence;
- The delay of sentence is in the interest of justice;
- During the delay, you would attend a treatment program approved by the province in which the offender resides; and
- During treatment, you would be subject to a driving prohibition.
As long as you successfully complete the program, the Court is no longer bound to impose the minimum sentences. However, this does not allow a person to avoid a criminal record.
We can explore this option with you at your free consultation. If you wish to pursue it, we can start work immediately on creating and collecting the complex and detailed medical evidence that will be required to make the best legal argument for your candidacy.
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