How Serious Is a Drive Over 80 Charge?

A Drive Over 80 Conviction Is a Serious Criminal Concern With Potential Penalty of Life Imprisonment.

Understanding Drive Over 80 Per Section 320.14 of the Criminal Code

The charge that is commonly known and referred to as 'drive over 80' is actually a misnomer.  Technically, in law, the charge is, within two (2) hours of ceasing to operate a conveyance have a blood alcohol level equal to or exceeding 80mg of blood alcohol which may involve a motor vehicle, a watercraft of many types, an aircraft, or railway equipment.  Additionally, the charge has three variations depending on whether the conduct caused danger, caused injury, or caused death.

The Law

In 2018, the Criminal Code of Canada, R.S.C. 1985, c. C-46 was significantly revised.  The former Drive Over 80 Mg of Blood Alcohol Content (BAC) charge, which was previously found at section 249 of the Criminal Code was repealed and the new charge of dangerous operation of a conveyance was added, and reworded from the former charge.  The new charge is found at section 320.14 of the Criminal Code.  Specifically, the new charge states:

Impaired operation

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or

(d) subject to subsection (7), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

Operation causing bodily harm

(2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

Operation causing death

(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person.

As shown, section 320.14(1) addresses impaired operation that poses danger to the public while section 320.14(2) addresses impaired operation causing bodily harm or injury and section 320.14(3) addresses impaired operation causing death.  For each level of seriousness, albeit each level is highly serious, the degree of potential penalties and punishments increases.

Possible Penalties

As above, the possible penalties, as potential punishments, upon conviction for drive over 80 offences vary depending on the circumstance and the specific charge.  For impaired operation causing risk of danger, the possible penalties are found at section 320.19(1).  For impaired operation causing injury, the possible penalties are found at section 320.20.  For impaired operation causing death, the possible penalties are found at section 320.21.  Specifically, the penalty sections state:

Punishment

320.19(1) Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days.

Punishment in case of bodily harm

320.2Every person who commits an offence under subsection 320.13(2), 320.14(2), 320.15(2) or 320.16(2) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to the minimum punishments set out in subparagraphs (a)(i) to (iii).

Punishment in case of death

320.21 Everyone who commits an offence under subsection 320.13(3), 320.14(3), 320.15(3) or 320.16(3) is liable on conviction on indictment to imprisonment for life and to a minimum punishment of,

(a) for a first offence, a fine of $1,000;

(b) for a second offence, imprisonment for a term of 30 days; and

(c) for each subsequent offence, imprisonment for a term of 120 days.

Summary Comment

A drive over 80 offence involves a range in severity of possible charges with each having a range in severity of potential penalties. For this reason, the importance of retaining a competent legal representative cannot be sufficiently stressed. In such cases, it is highly recommended that the accused  person seek the advice of an experienced Drive Over 80 Lawyer. 

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