Charged with Impaired Driving, DUI, Over 80, or Refusal in Ontario, Canada

Whether you want to call it DUI, DWI, impaired driving, refusal, or over 80 all of these offences are essentially the same charge. In Canada, the terms impaired driving, over 80 and refusal are the legal terms used in the Criminal Code. Police will normally charge a person who blows over with both over 80 and impaired driving. This is because it is an offence to have over 80 milligrams of alcohol in your blood but also to be impaired even if you are under 80. If a driver blows 40 technically they can still be charged with impaired driving if they present themselves as being impaired. Police will lay both charges because should further testing be scrutinized or the person ultimately blows under they can still possibly secure a conviction if the court (Judge) believes the person was impaired despite being under 80.

Practically speaking most people who blow under 80 will not usually be criminally charged. With the legalization of marijuana though the police are now more concerned than ever with cannabis impairment or the combination of alcohol and cannabis (known as the person being cross faded). The lower a person blows the better the chance they stand at winning the case if it goes to trial or getting the Crown Attorney to drop the criminal charges, but as of 2021 the potential influence of drugs is causing more people to be charged even if they blow below the legal limit.

Refusal Charges under Section 320.15 (1) of the Criminal Code of Canada

While the police cannot physically force someone to blow into an Approved Screening Device (ASD) or Intoxilyzer 8000 at the station, they can charge the person for Refusal under Section 320.15 of the Criminal Code if they do not. The penalties for Refusal are essentially the same for impaired and over 80 so those who choose not to blow still will find themselves criminally charged. It is better to blow than to refuse because refusal charges tend to be more difficult to win an acquittal at trial.

In refusal charges the person’s lawyer is unable to challenge in court that the breath test was inaccurate, not conducted properly, or that the machine was not properly maintained and therefore the reading should not be given as evidence.


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Are you a lawyer? If you are defending an impaired driving related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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