An over 80 charge in Ontario means police allege that your blood alcohol concentration was at or above 80 milligrams of alcohol in 100 millilitres of blood within two hours after you stopped driving. It is a Criminal Code offence, separate from impaired driving, and it carries a mandatory minimum penalty, a driving prohibition and immediate licence consequences. Below we explain what the charge means, the penalties, what happens next and how these cases are defended.
What Is an Over 80 Charge in Ontario?
Under section 320.14(1)(b) of the Criminal Code, it is an offence to have a blood alcohol concentration (BAC) equal to or over 80 mg of alcohol in 100 mL of blood within two hours after you stop operating a vehicle. That is the “0.08” limit most people know. Despite the name, a result of exactly 80 is enough.
Unlike an impaired driving charge under section 320.14(1)(a), the Crown does not have to prove your ability to drive was impaired. The case is about the number. Police often lay both charges after the same stop, but a court will generally not register convictions on both for the same driving.
Can you be charged if you were not driving?
Yes. To “operate” a motor vehicle includes having care or control of it. Under section 320.35, a person in the driver’s seat is presumed to have been operating the vehicle unless they prove they were not there to set it in motion. Sitting behind the wheel of a parked car can still lead to a charge, although whether the presumption applies can be contested.
Is over 80 the same as the “warn range”?
No. A BAC from 0.05 to 0.079 is Ontario’s warn range. It brings provincial roadside penalties, such as a short licence suspension, but it is not a Criminal Code offence on its own.
How Breath Testing Leads to an Over 80 Charge
Most over 80 cases start at the roadside. Under section 320.27(2), an officer with an approved screening device can demand a breath sample from any driver who has been lawfully stopped, even with no sign of drinking. This is called mandatory alcohol screening. Our guide to refusing a breathalyzer in Ontario covers roadside demands and why refusing is a separate offence.
The roadside device only screens. A fail usually gives the officer reasonable grounds to demand breath samples into an approved instrument under section 320.28, normally at a police station. A qualified technician takes those samples, and those results are the evidence the Crown relies on in court.
What if the tests were taken more than two hours after driving?
The charge can still proceed. Under section 320.31(4), if the first sample was taken more than two hours after driving and the result was 20 mg or more, the BAC within the two-hour window is conclusively presumed to be the result plus 5 mg for every 30 minutes beyond two hours.
Penalties for an Over 80 Charge in Ontario
Over 80 is a hybrid offence: the Crown chooses whether to proceed by summary conviction or by indictment. The maximum is 10 years in jail by indictment, or a fine of up to $5,000 and/or up to two years less a day on summary conviction. What sets over 80 apart is the mandatory minimum penalty in section 320.19, which rises with the BAC for a first offence:
| Offence | Mandatory minimum | Criminal Code driving prohibition |
|---|---|---|
| First offence, BAC 80 to 119 mg | $1,000 fine | 1 to 3 years, plus any jail term |
| First offence, BAC 120 to 159 mg | $1,500 fine | 1 to 3 years, plus any jail term |
| First offence, BAC 160 mg or more | $2,000 fine | 1 to 3 years, plus any jail term |
| Second offence | 30 days in jail | 2 to 10 years, plus any jail term |
| Third or later offence | 120 days in jail | At least 3 years, plus any jail term |
The prohibition is mandatory under section 320.24 and is separate from Ontario’s own licence suspension. A BAC of 120 mg or more is also an aggravating factor at sentencing. The jail minimums for repeat offences apply only if the Crown gave notice before the plea that it would seek a greater penalty because of a prior conviction.
Can you get a discharge for over 80?
No. A conditional or absolute discharge is not available for an offence with a minimum punishment, so a finding of guilt means a conviction and a criminal record. The Code does let a court, with the consent of the Crown and the accused, delay sentencing so the offender can attend a provincially approved treatment program, where one is available. If it is completed, the minimum penalty and prohibition are no longer mandatory, but a discharge is still not allowed.
Ontario Licence Penalties After an Over 80 Charge
Ontario’s licence consequences start right away. As of November 2026, Ontario’s impaired driving penalties for a driver with a BAC of 0.08 or more are:
- First time: an immediate 90-day licence suspension, a 7-day vehicle impoundment, a $550 penalty and an 8-hour education course.
- Second time: the same, but with a 16-hour treatment program instead of the course.
- Third time: the same as a second time, plus an ignition interlock condition for six months.
A reinstatement fee applies each time a licence is suspended. These penalties are administrative and separate from the criminal case.
A conviction adds more. For a first Criminal Code impaired driving conviction, which includes over 80, Ontario lists a licence suspension of at least one year, a mandatory education or treatment program and an ignition interlock condition for at least one year. For offences on or after July 1, 2026, a six-month zero alcohol and zero drugs condition follows once the interlock condition is removed. A second conviction within 10 years brings a suspension of at least three years.
Some offenders can shorten the suspension through Ontario’s Reduced Suspension with Ignition Interlock Conduct Review Program. One stream is only open to first-time offenders who plead guilty and are sentenced within 90 days of the offence. That deadline can create pressure to resolve a case quickly, so get advice on the evidence before you decide.
What Happens After an Over 80 Charge?
Drivers charged with over 80 are usually released with paperwork that sets a first court date. The case then moves through the usual steps:
- Your first court appearance, where the case is usually adjourned so the defence can get the Crown’s evidence.
- Disclosure. Section 320.34 requires the Crown to disclose the instrument’s system blank and calibration check results, any error messages, the breath test results and an analyst’s certificate for the alcohol standard. The defence can apply for more.
- Pre-trial meetings, starting with a Crown pre-trial and often a judicial pre-trial.
- Resolution or trial, usually in the Ontario Court of Justice.
Write down your timeline of the evening while it is fresh: when you last had a drink, when you stopped driving and when each test happened. Share it only with your lawyer.
How Over 80 Charges Are Defended
Parliament has declared in section 320.12 that approved instruments produce reliable readings, so a defence generally cannot rest on a broad claim that breath testing is unreliable. An over 80 charge lawyer will instead look at whether the legal requirements were met in your case, including:
- The test procedure. Under section 320.31(1), the lowest result is conclusive proof of BAC at the time of testing only if a qualified technician used an approved instrument, ran a system blank test and calibration check before each sample, took the samples at least 15 minutes apart, and the results (rounded down to the nearest 10 mg) were within 20 mg of each other.
- Timing. The offence turns on the two-hour window, so when driving stopped and when each sample was taken can matter.
- Drinking after driving. Under section 320.14(5), there is no offence if the person drank only after they stopped driving, had no reasonable expectation of being asked for a sample, and their drinking is consistent with both the test results and a BAC under 80 while driving. All three conditions must be met.
- Delay. If the case takes too long to reach trial, the defence can apply for a stay. See our guide to 11(b) delay in Ontario.
None of these issues guarantees a particular result. They are starting points for assessing the Crown’s case.
Charter Rights in Over 80 Cases
Breath testing involves a detention and a seizure of breath samples, so a lawyer will typically review three Charter rights:
- Section 8 (search and seizure). Whether each demand met its legal standard. The station demand requires reasonable grounds to believe an offence was committed, and the Code requires the demand and samples to be made and taken as soon as practicable.
- Section 9 (arbitrary detention). Whether the stop was lawful, and whether the driver was held longer than necessary after the tests.
- Section 10(b) (right to counsel). This right is generally limited during roadside screening. After an arrest, police must tell the driver about the right to counsel and, if the driver wants to use it, give a reasonable opportunity to speak to a lawyer before the station tests.
If a breach is found, the defence can ask the court to exclude the breath results under section 24(2) of the Charter. Courts apply the test from R. v. Grant, 2009 SCC 32, and exclusion is not automatic.
Mistakes to Avoid After an Over 80 Charge
- Driving during the suspension or prohibition. It can lead to new charges.
- Assuming the reading settles the case and pleading guilty before your lawyer has reviewed disclosure.
- Talking about the night with police or online before getting legal advice. You have the right to speak to a lawyer and the right to remain silent.
- Missing a court date or a requirement in your release paperwork.
- Letting provincial deadlines pass that affect when you can drive again.
Talk to Kisel Law About an Over 80 Charge
An over 80 charge can cost you your licence for a year or more and leave you with a criminal record, even on a first offence. The right approach depends on the test records, the timeline, how police handled the stop and your driving history.
Kisel Law defends drivers charged in Toronto, Brampton, Mississauga, Vaughan and across the GTA. Learn more about working with an impaired and over 80 lawyer, or contact Kisel Law to book a confidential consultation. Bring your release papers, the suspension and impound notices and any documents police gave you.
This article is general information, not legal advice. Every case depends on its own facts.
