BAC Over .08

Blood Alcohol Concentration (BAC) Over .08 and Impaired Driving: The twin sisters of DUI

Section 320.14(1)(a) of the Criminal Code makes it a criminal offence to operate a vehicle when impaired by alcohol, drugs, or a combination of both. You can be charged with impaired driving when your driving ability is affected by any amount of alcohol or drugs. Section 320.14(1)(b) makes it a criminal offence to have a blood alcohol concentration (BAC) legal limit of .08 percent or higher within 2 hours of driving (operating a conveyance) in Canada. These two offences are related but distinct under the Criminal Code. It is possible to be guilty of driving over 80mg% while exhibit little to know indicia of impairment. One offence deals with blood alcohol concentration whilst the other focuses on the indicia of impairment of the accused.

Impaired Driving: Your Rights

Following your arrest for impaired driving, law enforcement is obligated to inform you of your rights, including the right to legal representation. You have the option to retain and instruct counsel before undergoing a breath test, providing a blood sample, or participating in a 12-step Drug Recognition Evaluation (DRE) at a police station. The right to retain and instruct counsel is typically temporarily suspended for roadside screening tests, such as the Approved Screening Device test. These tests require the police officer to take swift action in both making the demand for a roadside test and performing the test. 

Consult a lawyer to better understand the charges against you and to determine whether your rights may have been violated.

Potential Penalties for a BAC Over .08 Charge

Alcohol-impaired driving and BAC over .08 carry the same penalties in the Criminal Code. The Crown must prove the identity of the accused, the date and time of the incident, the jurisdiction and that the accused’s BAC was over 80 within 2 hours of operating a conveyance. 

1st Offence:

  • Minimum: $1,000 fine
  • Maximum: 10 years imprisonment

2nd Offence:

  • Minimum: 30 days imprisonment
  • Maximum: 10 years imprisonment

3rd Offence:

  • Minimum: 120 days imprisonment
  • Maximum: 10 years imprisonment

Aggravating Factors that Can Influence DUI Charge Penalties

Section 322.2 of the Criminal Code outlines the following aggravating factors for sentencing purposes. These aggravating factors apply equally to over 80mg% offences and impaired driving offences:

  • Driving causing bodily harm
  • Driving causing death
  • Driving causing bodily harm or death to more than one person 
  • Driving while a passenger under the age of 16 was in the vehicle
  • Committing other driving offences in addition to BAC over .08
  • Having a BAC equal to or more than 120mg or 160mg of alcohol in 100 mL of blood
  • Driving while operating a large motor vehicle 
  • Driving while not permitted to operate the vehicle
  • Driving while in a race or a contest of speed with at least another motor vehicle
  • Driving while being remunerated for operating the vehicle

Additional Consequences for a DUI Charge

Click here to learn about the consequences of impaired driving imposed by SGI.

Call (306) 585-1777 for a free lawyer consultation and to learn more about how a lawyer can assist you in handling your over 80mg% or impaired driving charge.

New Impaired Driving Laws

Several amendments were made to the Criminal Code in 2018: 

  • It’s now illegal to have a BAC level exceeding the legal limit within two hours after operating a vehicle. This change was made to limit the “bolus drinking” and "intervening drink" defence.
  • There are three new drug-impaired driving offences for having specified levels of a drug in the blood within two hours of driving.
  • Law enforcement is authorized to demand an oral fluid sample if they reasonably suspect that a driver has drugs in their body during a legal roadside stop.

The new legislation also enacted higher mandatory minimum fines and higher maximum penalties. Click here to learn more about the new impaired driving laws.

Get a free lawyer consultation to learn more about the new impaired driving laws and how they may affect your impaired or over .08 charges.

Types of Impaired Driving Charges

Alcohol-Impaired driving: Operating a conveyance while the person’s ability to operate it is impaired to any degree by alcohol.

Drug-Impaired driving: Having 5ng or more of THC per ml of blood, 5mg or more of GHB per 1 litre of blood, or any detectable level of LSD, psilocybin, psilocin, ketamine, PCP, cocaine, methamphetamine, or 6-mam within 2 hours of driving. It is a summary conviction to have over 2ng but less than 5ng of THC per ml of blood within 2 hours of driving.

Combination: Having a BAC of 50mg per 100ml of blood and 2.5ng or more of THC per 1ml of blood within 2 hours of driving.

BAC content at or over .08: It is a criminal offence to have a BAC content of .08 or more within 2 hours of driving (operating a conveyance).

Refusal to comply with a demand for a sample: Failing or refusing to provide a breath or bodily fluid sample for alcohol or drug testing when required by a law enforcement officer pursuant to Section 320.15 of the Criminal Code.

Charged With a DUI? Hire a Skilled DUI Lawyer

An experienced DUI lawyer is essential when facing impaired or over 80mg% charges. A lawyer can help you navigate the complexities of our legal system.

Seeking Lawyer Help? Get a Free Consultation With a Skilled DUI Lawyer

Call (306) 585-1777 if you have been charged within a DUI related offence and we would be happy to discuss your case with you.

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