If you are facing blowing over 80 charges, you need a criminal defence lawyer in Calgary to look at your case as soon as possible.

‘Blowing over 80’ refers to when a person operates a vehicle with a blood alcohol concentration (BAC) of 80 milligrams or more of alcohol per 100 millilitres of blood and it is detected in a screening device.

Police use approved screening devices, like breathalyzers, to measure alcohol levels currently in your system.

This is a hybrid offence, which means the Crown prosecutor can choose to treat it as either a summary, or indictable offence, depending on the circumstances.

  • For a first offence, you face a mandatory minimum fine of $1,000.
  • If it’s a second offence, you’ll receive at least 30 days in jail, and for a third or subsequent offence, at least 120 days imprisonment.
  • The maximum penalty, if prosecuted by indictment, can be up to 10 years in prison.

You’ll also receive a mandatory driving prohibition. Alberta authorities may also impose additional licence suspensions and requirements like ignition interlock devices or education programs before you can drive again.

Strategic Criminal Defence is a top Google-rated criminal defence firm in Calgary, with over 500 5-star reviews. Our firm, and our experienced legal team, have defended clients in over 10,000 criminal cases. Leveraging our extensive network of lawyers and decades of experience, we craft defence strategies to help those accused of blowing over 80 beat the charge.

The lawyers at Strategic Criminal Defence are both highly experienced and dedicated to defending your rights and future in the face of these charges. Contact a lawyer today by calling (403) 719-6410.

Key Takeaways

  • Blowing over 80 means having 80 milligrams or more of alcohol in every 100 millilitres of blood.
  • The police use breath testing devices to check your blood alcohol level, and the results are used as evidence in court.
  • This is a hybrid offence. The minimum for a first offence is a $1,000 fine, a second offence gets 30 days in jail minimum, and a third offence is 120 days in jail minimum.
  • If someone is charged by way of an indictment, they can go to jail for up to 10 years.
  • Bail conditions usually say that you can’t drive, drink alcohol, and you may need to use an ignition interlock device when you are allowed to drive.
  • You can beat these charges with a strong defence, especially if the breath analysis wasn’t completed correctly or if your Charter rights were compromised during the process.

How Our Lawyers Help With a Blowing Over 80 Charge

A Strategic Criminal Defence lawyer can offer pre-charge legal advice about immediate steps to take.

Including, helping protect you from self-incrimination by ensuring you don’t make unnecessary statements to police which will not help your case. We can help you understand when to remain silent and what information to provide.

In cases of blowing over 80, collecting evidence is very important. 

  • Our lawyers will collect the maintenance records for any breathalyzer, the officers’ notes, and any video footage that might show mistakes in the testing or how it was done.
  • We can also hire professional witnesses when we need to. Toxicologists, for instance, who know how the body absorbs and processes alcohol, can question the results of breath tests.

Our lawyers will help you with every step of the way. This includes going to court for you, going over all the evidence, getting ready for trial, and helping you deal with licence suspensions that are issued on top of criminal charges.

Examples of Blowing Over 80 Charges

Here are some real-world examples of what can lead to blowing over 80 charges in Calgary: 

  • After having several beers at a pub, a woman drives home but is stopped at a police check stop. The officer smells alcohol and asks them to provide a breath sample on a roadside screening device. When they fail the roadside test, they are taken to the police station where she provides a breath sample on an approved instrument. The sample shows a blood alcohol concentration of 110 mg of alcohol per 100 ml of blood, well above the legal limit of 80 mg%.
  • A man attends a wedding reception where he consumes wine with dinner and several cocktails afterward. Believing he’s okay to drive after waiting an hour, he heads home but drives erratically. Police pull him over, and after roadside testing, he’s arrested. At the station, his breath samples show a reading of 130 mg%. This results in an over 80 charge.
  • A woman drinks several beers while watching a hockey game at home. Shortly after her last drink, she drives to the convenience store for snacks. Police stop her for rolling through a stop sign and demand a breath sample. Her reading at the station is 170 mg%. She is also charged.

Consequences of a Blowing Over 80 Charge

Blowing over 80 is a subsection of impaired driving, which means that if convicted, you will face penalties for operation while impaired. Additionally, if your breath sample returns a “high” blood alcohol concentration reading, you will face significant mandatory minimum fines that are far higher than those given for basic impaired driving.

Impaired driving and impaired driving causing bodily harm are both hybrid offences, meaning that the Crown can elect to proceed summarily or by way of indictment. This decision impacts the punishments that are available, with summary being less severe and indictment being more severe. Where impaired driving causes death, the Crown must proceed by indictment.

The maximum punishments for impaired driving include:

  • Summary
    • Impaired driving: Up to 2-years less a day imprisonment;
    • Impaired driving causing bodily harm: Up to 2-years less a day imprisonment.
  • Indictment
    • Impaired driving: Up to 10-years imprisonment;
    • Impaired driving causing bodily harm: Up to 14-years imprisonment;
    • Impaired driving causing death: Up to life imprisonment.

Regardless of how the Crown proceeds, all impaired driving charges have mandatory minimum punishments:

  • First offence: $1,000 fine;
  • Second offence: 30-day imprisonment; and
  • Third offence: 120-day imprisonment.

If your breath sample shows a “high” blood alcohol concentration, you will face additional mandatory minimum fines:

  • Blood alcohol concentration equal to or exceeding 120 mg of alcohol in 100 mL of blood, but less than 160 mg of alcohol in 100 mL of blood: $1,500 minimum.
  • Blood alcohol concentration equal to or exceeds 160 mg of alcohol in 100 mL of blood: $2,000 minimum.

The punishments you will have to endure for impaired driving increase where:

  • One or more people were injured/killed by your impaired driving;
  • Your blood alcohol concentration was excessively high;
  • You were participating in a street race;
  • You had a passenger with you under the age of 16;
  • You were being paid for operating the vehicle;
  • You were operating a large motor vehicle; and
  • You were not permitted to be operating the vehicle.

As previously mentioned, you may also face an IRS punishment that, although not criminal, will significantly impede your freedom.

Pursuant to the Traffic Safety Act, a peace officer will issue you an IRS “Notice of Administrative Penalty” if:

  • They believe you were impaired by drugs and/or alcohol;
  • You are tested and are found to be over your legal limit of drugs and/or alcohol; or
  • You failed to comply with a demand to test your sobriety.

Penalties associated with an IRS include:

  • Licence suspension;
  • Participation in the Ignition Interlock Program;
  • Participation in mandatory education courses; and
  • Fines and tow bills.

Again, an IRS is an administrative charge issued by the province that is not the same as a criminal charge for impaired driving under the Code. To learn more about the specific penalties associated with an IRS, please see here.

A conviction for blowing over 80 can have many negative consequences on your future. You may experience difficulties securing employment in the field of your choice, especially in roles that require driving. The lifelong criminal record that results from a conviction can also hinder immigration, travel and you will almost certainly face higher insurance premiums as well.

For these reasons, even if you intend to accept responsibility for the offence, it is worthwhile to explore your options and consider all potential penalties. Even if the evidence is stacked against you, it may be possible to negotiate a resolution to avoid a lengthy jail sentence. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.

Blowing Over 80 Charge Defences

Here are some possible defences to blowing over 80 charges:

  • Charter Violations During Testing Procedures: If police didn’t have reasonable grounds to demand a breath sample, didn’t inform you of your right to counsel, or denied you a reasonable opportunity to speak with a lawyer before testing, these Charter violations can lead to the exclusion of breath test evidence.
  • Improper Calibration and/or Maintenance of Equipment: Breathalyzer instruments must be properly calibrated and maintained to get reliable results. Even small technical issues can create reasonable doubt about whether your true blood alcohol concentration was over the legal limit.
  • Medical Conditions: Medical conditions like GERD (gastroesophageal reflux disease), acid reflux, or heartburn can cause alcohol from the stomach to move back into the mouth or throat, creating artificially high readings.

Blowing Over 80 Charge Investigation

If an officer thinks you’ve been drinking, they’ll first ask you to take a sample on an approved screening device at the side of the road. This breathalyzer will determine if you pass, fail, or get a warning result. The officer can arrest you and make you take more breath tests if you don’t pass this first test.

Then at a police station, a qualified breath technician would use another approved screening device to do the official breath tests. 

  • Before they test you, they would need to watch you for at least 15 minutes to make sure you don’t burp, vomit, or put anything in your mouth that could change the results.
  • The technician will take at least two breath samples, and the samples will be taken 15 to 20 minutes apart.
  • These tests show exactly how much alcohol is in your blood. They also give printed results that can be used against you in court.

The police officers involved will keep track of everything during the process. Including how you drove, any physical signs of impairment, what you say, and how you act during the test.

They also keep detailed records of the breath testing process, including the times, results, and checks to make sure the instrument is working correctly.

Bail Conditions for Blowing Over 80 Charges

In most cases, the court will prohibit you from operating any motor vehicle in your bail conditions. 

  • You would also be ordered to stay away from drugs (except those with a prescription) and alcohol. This means you can’t have any alcohol at all, not even a beer with dinner.
  • The court may tell you where you can’t go, like bars, nightclubs, and liquor stores, where alcohol is the main thing being sold.
  • You will also have to tell the court if you want to move.
  • You might also have to check in with a probation officer or bail supervisor on a regular basis to make sure you are following the rules.
  • If someone was hurt or died in an accident related to your impaired driving, the judge may add more bail conditions, such as not talking to any victims or witnesses.
  • If you have a history of driving impaired or having a very high blood alcohol level, the court may put you under house arrest or give you a curfew.

If you break any of these bail conditions, you are committing a different crime called breach of undertaking or recognizance. If this happens, your bail could be taken away, which would mean you would have to stay in jail until your trial. It might also mean that you get more criminal charges, each of which would have its own punishment.

For more information, visit our page on The Bail Hearing Process in Calgary.

Frequently Asked Questions

Yes, you should provide a breath sample when police demand one. Refusing to provide a breath sample is a separate criminal offence with the same penalties as blowing over 80 itself, a mandatory minimum $1,000 fine for a first offence and mandatory jail time for subsequent offences. You cannot legally refuse a valid demand based on wanting to speak to a lawyer first (for roadside screening tests), believing you’re under the limit, or wanting a blood test instead. The only valid reason to refuse is having a genuine medical condition that makes you physically unable to provide a sample. Even nervousness, anxiety, or asthma generally won’t justify a refusal, the police are trained to help people with breathing difficulties provide valid samples by taking breaks or using different techniques.

Though often charged together, “over 80” and “impaired driving” are actually separate offences under the Criminal Code. The “over 80” charge (officially called “operation while over legal limit”) is based solely on your blood alcohol concentration, if you blow 80mg% or higher, you’ve committed the offence regardless of whether your driving ability seemed affected. Impaired driving focuses on whether your ability to operate a vehicle was actually affected by alcohol or drugs. This can be proven through observations of your driving (weaving, running red lights), physical symptoms (slurred speech, bloodshot eyes, poor balance), or failed coordination tests. even without a breath test.