Driving while Over 80, or Over 0.80 in Victoria
Driving Over 80 or driving Over 0.80 is a charge that is set out by s.253(1)(b) of the Criminal Code. This charge will be laid after the police have obtained evidence that you had a blood alcohol content that exceeded 80 mgs of alcohol in 100 ml of blood. The police can obtain this evidence in two ways:
1. The police can have you provide a breath sample into an evidentiary instrument, or what is more commonly known as a ‘breathalyzer’ at the police station.
The police can lawfully arrest you and bring you to the police station for the purposes of obtaining a breath sample when they have reasonable and probable grounds to believe that you were operating a vehicle while you were impaired by alcohol. The police can develop grounds for the arrest through observation alone, (such as witnessing a poor driving pattern and smelling alcohol on your breath), or by administering a roadside screening device. The roadside-screening device is a small device that takes a sample of your breath and determines whether you have a blood alcohol content (BAC) of over or under 80 milligrams of alcohol in 100 millilitres of blood. If your BAC is over 80, the device will register a ‘fail’. This automatically authorizes the police to bring you back to the station for the purpose of obtaining further samples of your breath. At the station, you will blow into an instrument that will provide the police and the Crown with a more precise reading of your BAC. If you do not fail the roadside-screening test, you may have your licence temporarily suspended, but will usually not have to contend with a criminal charge.
2. The police can obtain and analyze a sample of your blood.
Blood samples are a less frequent manner of proving that an individual’s BAC was over 80. Typically, blood samples will be taken following a collision or other medical emergency that renders the accused person incapable of being brought back to the police station within a reasonable time frame. When the police intend to obtain a sample of your blood, they will typically follow you to the hospital and ask that you voluntarily provide them with a blood sample. This sample will be drawn by a doctor or another qualified medical practitioner. If you are unconscious or incapable of responding to the demand, the police can also get a warrant that will authorize them to seize blood samples from the hospital at a later time. That is, when you are admitted to the hospital, blood samples will usually be drawn for hospital purposes. It is these samples that will later be seized and analyzed by the police, providing them with a more accurate reading of your BAC at the time of the offence.
Once the police have evidence that you had a BAC of over 80 while driving, they will often lay this charge alongside the s. 253(1)(a) impaired driving charge. Even though you can ultimately only be convicted of either impaired driving or driving over 80, you will still have to defend both at trial.
Defending an Over 80 charge is a fairly difficult task, particularly since there is usually very clear and objective evidence that can confirm that you are guilty of this offence. Notwithstanding this fact, we successfully defend Impaired and Over 80 charges on a regular basis. The most effective way for us to defend this charge is by arguing that the evidence against you was unlawfully obtained, and that it should therefore be excluded from your trial. Alternatively, it sometimes happens that there were mechanical deficiencies in the instrument that was used to take your breath samples, or other technical issues that can lend to your defence. There is no way of knowing for sure what the defences are until we thoroughly review the police information package. Even if you are thinking of pleading guilty, it is well worth the time to review the police evidence first before committing to a course of action.
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