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Drinking and Driving
Common Defences
Overview
Numerous defences can be raised on a charge of Over 80. A few of the most common are described below and on the pages that follow. Availability of any defence depends on the facts of your case.
Breath readings inaccurate
You can raise a reasonable doubt about whether your blood alcohol concentration (BAC) was over the legal limit with evidence that you did not drink too much and by demonstrating that that the breath instrument was malfunctioning or operated improperly. You will also need to show that but for the malfunction or improper operation, your readings would have been within the legal limit.
To mount this defence at trial, you will need a toxicologist (an expert on the body's absorption and elimination of alcohol) or a report from one. The toxicologist can calculate your BAC based on your weight and the amount and time of alcohol consumption. (Hiring a toxicologist for trial will likely cost over a $1,000; a report can be obtained for much less or from the Centre of Forensic Sciences in Toronto for free.)
Unless the judge finds the evidence about how much you drank unreliable, your testimony will throw doubt on the readings obtained by police. In assessing your evidence about alcohol consumption, the judge cannot take into account your breath test results, however high. This follows from a December 2005 decision of the Supreme Court of Canada (see paragraph 43).
Were you over the limit?
Were you over the legal limit at the time of the alleged offence? Use the Calculator to approximate your blood alcohol level.
On an Over 80 charge, the Crown must prove your BAC was over the legal limit at the time of driving. But because police do the breath instrument test only afterward, the Criminal Code presumes the result - the lower of the two readings obtained from the breath samples - reflects your BAC at the time you are stopped.
The presumption applies only if the tests are started within two hours. If the first test is carried out more than two hours after the time of driving (or care or control), the Crown will need a toxicologist to calculate your BAC at that time. If the Crown fails to bring one or a report from one to your trial, the Over 80 charge cannot be proven.
Last drink defence
If the breath instrument readings are slightly over 80 and you guzzled a drink just before being stopped, you may have a "last drink" defence. As it takes time for alcohol to enter the bloodstream, a toxicologist may be able to testify you were under 80 at the time of the stop because the alcohol had not yet been fully absorbed. The last drink defence is very effective because you do not have to question the reliability of the breath instrument results. However, your evidence must also show that the breath instrument results accurately reflect your BAC at the time of the tests.