Impaired Driving
Defence

Drinking and Driving

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Different offences

• Over 80
• Impaired Driving
• Refuse Sample
• Care or Control

Over 80 refers to the amount of alcohol in your blood as measured by a breath or blood test. The legal blood alcohol level in Canada is 80 milligrams of alcohol in 100 millilitres of blood. (In most U.S. states it's 100 mgs.; in Sweden it's 20 mgs.)

A charge of impaired operation of a motor vehicle may be laid if police believe your ability to drive a motor vehicle is impaired - however slightly - as a result of drinking (or drugs). Typically, this charge is laid if there is evidence of bad driving, slurred speech, imbalance, and/or fumbling.

A charge of refuse to provide a suitable sample of breath ("refuse sample" for short) is laid after you fail or refuse without reasonable excuse to provide a breath sample either into a roadside screening device or a breathalyzer instrument. The roadside screening device test is administered to determine whether you are over the legal limit; if you register a fail on the device, you will be asked to undergo a breath test which measures the amount of alcohol in your blood.

Often a charge of Impaired Operation is laid along with a charge of Drive Over 80 or Refuse Sample.

You do not have to be caught driving to be charged with Over 80 or Impaired. It's enough if you're in "care or control." You are presumed to be in care or control if police find you sitting in the driver's seat.

However, you may rebut the presumption if your intention on entering the driver's seat was not to drive (e.g., to sleep). If you rebut the presumption, you might still be found guilty if the Crown can show that you performed some act or acts involving the vehicle or its fittings, or conduct associated with the vehicle, that involve the risk of putting it in motion or some other danger arising from the vehicle.

Beware: you may be found in care or control even if you are outside your vehicle.

Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.