What is an over 80 offence?
Under section 253 of the Criminal Code of Canada, it is an offence for a person to operate or have “care and control” of a motor vehicle if there is more than eighty milligrams of alcohol in every hundred millilitres of his or her blood. This will lead to a charge referred to as “over 80”.
Applicable Legislation – Criminal Code, s. 253
(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
What does it mean to have “care and control” of a motor vehicle?
Having “care or control” of a motor vehicle is determined on a case-by-case basis. Care or control is a broad concept, and many situations will fall into this category. Acts which involve some use of the car or some course of conduct associated with the vehicle that involves a risk putting the vehicle in motion will qualify as a person having care and control of that vehicle. It is not necessary for the prosecutor to prove a person intended to put the vehicle in motion. What matters is the risk of danger to other people. The prosecutor must prove that a person whose ability to operate a vehicle is impaired or whose blood alcohol exceeds the legal limit has deliberately done something associated with a motor vehicle in circumstances that create a realistic risk of danger to persons or property.
What is a realistic risk?
A realistic risk is a risk that is more than theoretically possible. It does not have to be probable. An intention to set a vehicle in motion will qualify as a realistic risk. If an inebriated person who does not intend to drive may later, while still impaired, change his or her mind, there will be a realistic risk. A realistic risk will also be formed if there is the possibility of an inebriated person behind the wheel unintentionally setting the vehicle in motion. Furthermore, an inebriated person who is in the immediate vicinity of a vehicle while possessing the means of setting it in motion or controlling it may be considered to have had care and control of the vehicle.
What is the maximum penalty for an over 80 offence?
The maximum penalty for an over 80 offence depends on whether the prosecutor proceeds by way of indictment or by way of summary conviction. If the prosecutor chooses to proceed by indictment, the maximum penalty is five (5) years in jail. If the prosecutor chooses to proceed by summary conviction, the maximum penalty is eighteen (18) months in jail.
It is important to keep in mind that the maximum penalty will change if there has been an accident that has resulted in bodily harm or the death of another person. If there has been resulting bodily harm, the maximum penalty for an impaired driving offence is ten (10) years in jail. If there has been resulting death, the maximum penalty is imprisonment for life.
Is there a minimum punishment for an over 80 offence?
There are minimum punishments for over 80 offences. These minimum punishments are imposed by both the Criminal Code of Canada and Ontario’s Highway Traffic Act. Which punishment a person receives depends on how many times that person has been previously convicted of a similar offence. A person found guilty of his or her first over 80 offence will be subject to a minimum fine of $1,000 and a one-year licence suspension. If it is that person’s second offence, he or she will be subject to a minimum term of thirty (30) days in jail and a three-year licence suspension. A person who has been convicted two or more times previously will be subject to a term of one-hundred-and-twenty (120) days in jail and an indefinite licence suspension.
Applicable Legislation – Criminal Code, s. 255
(1) Every one who commits an offence under section 253 or section 254 is guilty of an
indictable offence or an offence punishable on summary conviction and is liable,
- whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than $1,000,
(ii) for a second offence, to imprisonment for not less than 30 days, and
(iii) for each subsequent offence, to imprisonment for not less than 120 days;
- where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
- if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.
(2.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
(3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
Applicable Legislation – Highway Traffic Act, s. 41
(1) Subject to subsections 41.1(1), (2), and (3), the driver’s licence of a person who is convicted of an offence…
(b.1) under section 253 or 255 of the Criminal Code (Canada) committed while,
(i) driving or having the care, charge or control of a motor vehicle or street car within the meaning of this Act or a motorized snow vehicle, or
(ii) operating or having the care or control of a vessel within the meaning of section 48… is thereupon suspended,
(f) upon the first conviction, for one year;
(g) upon the first subsequent conviction, for three years; and
(h) upon the second subsequent conviction or an additional subsequent conviction,indefinitely.
What defences are available for an over 80 charge?
The courts have distinguished between voluntary and involuntary intoxication. Involuntary intoxication will usually not result in criminal liability. If a person has become intoxicated through the fraud or actions of another person, that person will be found to have been involuntarily intoxicated. A person may have also taken a prescribed drug or medication while unaware of the effects the drug or medication would have had on them. Involuntary intoxication will be found in this case as well.
Another possible defence is that of necessity. A successful defence of necessity is composed of three elements. Firstly, the person must be in imminent danger. This means the danger must have been near and unavoidable. A danger that was merely likely or foreseeable is insufficient to ground a defence of necessity. Secondly, the person must have had no reasonable legal alternative to the course of action he or she undertook. What counts as a “reasonable legal alternative” will be determined on a case-by-case basis. Where the person can be said to have not had any real choice, his or her actions will not be considered morally voluntary. Thirdly, the harm inflicted by the person in committing the offence must be proportionate to the harm avoided. The harm avoided does not have to clearly outweigh the harm inflicted, but the two must have been comparable to each other. Regarding over 80 offences, courts have considered the harm inflicted by them to be very grave, even in situations when no one was hurt. Usually, the harm avoided must relate to the preservation of life in order to ground a successful defence of necessity.
Take the next step
If you have been charged with an over 80 offence, your best approach to the situation is to consult with effective legal counsel. Lakin Afolabi is a criminal defence lawyer in London, Ontario, who has successfully defended many individuals charged with over 80. Contact him today for a consultation.
Contact Lakin Afolabi now for a consultation
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