Have You Been Charged With Driving Over 80 Milligrams In 100 ml of Blood? Call us asap at 604-318-3838

vancouver car accident lawyer If you’ve been charged with driving over 80 milligrams in 100 ml of blood, we can help you right now with your DUI or other impaired driving charge – call 604-318-3838 for immediate and free legal advice.

The Criminal Code of Canada defines the charge this way:
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 milliliters of blood.

In terms of the legal authority for the police to obtains samples the Criminal Code of Canada defines things this way:

Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 [impaired driving] as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and

(b) if necessary, to accompany the peace officer for that purpose.

The minimum penalties for a driving over 80 milligrams conviction:
The minimum penalty upon CONVICTION for driving over 80 milligrams in 100 milliliters of blood in B.C. is criminal conviction, a $1000 fine, plus a victim fine surcharge of 15% (or an extra “$150 victim tax”), and a ONE YEAR driving prohibition effective anywhere in Canada. Somewhat duplicitously in B.C. the law also prohibits you automatically from operating a vehicle in BC for a period of at least ONE YEAR. Upon conviction for this offence and prior to retaining any driving privileges in British Columbia the Superintendent of Motor Vehicles in B.C. will require you: (a) to take a program currently called the “Responsible Driving Training Program” at a cost of close to $1000; (b) if you pass their inspection then to install an interlock ignition device in any car you intend to operate for ONE YEAR or more (commencing AFTER the expiry of your ONE YEAR driving prohibition as set out above) and require you to pay for the installation; and (c) to have the computerized interlock ignition device monitored monthly (or whenever they deem appropriate) resulting in monthly maintenance charges for you as long as you have the device installed. ICBC point premiums also attract additional financial penalty as 10 point are added to your license as a result of the conviction. The financial penalties (under the criminal law and for administrative sanctions) altogether therefore from your conviction can total close to $5000 to you. This is in addition to any penalties that you might have already received owing to any other administrative sanctioning that may have already occurred as a result of the police investigation, such as Administrative DRIVING PROHIBITIONS (ADP driving prohibition) or any IMMEDIATE ROADSIDE PROHIBITIONS (IRP). To find out more about ADP or IRP driving prohibitions you are encouraged to CLICK HERE.

The legal basis for a driving over 80 milligrams charge:

The basis of the “driving over 80 milligrams charge” is that you operated or had care or control of the vehicle while the concentration of alcohol in your blood (or what is termed your “BAC”) exceeded 80 milligrams of alcohol in 100 milliliters of blood. This charge regularly arises after the police have obtained samples of your breath or blood and the measurement of those samples exceeds the standard set by Parliament (ie. 80 milligrams of alcohol in 100 milliliters of blood). In Canada, provided your ability to operate a motor vehicle is not affected by alcohol, you are permitted to drive a motor vehicle with up to 80 milligrams of alcohol in 100 milliliters your blood. That is to say that it is not illegal to drive after having consumed some alcohol but it is illegal to drive after your level of alcohol in your blood exceeds those national standards.

Just how much alcohol that is depends upon many factors including:
(a) obviously the quantities and types of alcoholic beverages consumed by you;
(b) the timing of the consumption (ie. prolonged drinking over time or a large number of drinks over a short period of time);
(c) your weight at the time of consumption;

(d) whether you were on special medication that inhibited or accelerated your metabolism;

(e) whether you consumed food with the beverages consumed;

(f) your tolerance to alcohol (ie. are you a “light-weight” so that alcohol remains in your body longer or are you a heavy drinker where alcohol is eliminated by your body faster than the average social drinker);

(g) other factors.

In many cases the police will obtain samples of breath from a driver either at the police station with the use of a breathalyzer instrument/machine or else at the roadside with the use of an “approved screening device”. All these instruments do is translate breath samples taken into them into a blood/breath ratio. Only the breath samples taken at the police station can be used by the Crown as accurate measurements of your actual blood alcohol content (BAC). Sometimes, and usually in cases where there is an accident, samples of breath cannot easily be taken (as the client is being treated at the hospital for injuries). In those cases the law permits the police (provided requisite measures have been met) to obtain actual blood samples from a client. Thus, on occasion, blood samples are used as proof of a client’s BAC. Sometimes also there can be an issue where one is charged with refusing to provide a breath sample.

To secure a conviction on a “driving over 80 milligrams” charge the Crown must be able to put proof of the client’s BAC before the court and that proof must be substantial enough to show the BAC was over 80 milligrams at the time that the client was driving a vehicle. This charge therefore has a largely “objective” component to it in that it is, on its face, proven by science and the provision of physical samples of blood or breath.

This charge is thus similar to, but not the same as “impaired driving”. Because it is so similar to impaired driving a rule at law has developed so that the Courts cannot convict you of both charges at the same time. Much like a thief who after a bank robbery would only be convicted of either theft or possession of stolen property (ie. the money), the Courts in a case of a person driving while impaired by alcohol or driving with more than 80 milligrams of alcohol in their blood will effectively drop one of the convictions by judicially staying one charge at the conclusion of a case if a person is subject to a conviction on both counts.

The defence to a driving over 80 milligrams charge:

The defences to a driving over 80 milligrams charge are usually very technical in nature and are as varied as your imagination. They can involve proven allegations that the police (or the prosecution in the broader sense) has breached your Charter rights under section 8 (to be free from unreasonable search and seizure) such as where the police did not have the necessary legal required grounds to obtain your breath samples in the first instance OR they may involve allegations of various breaches of section 10 of your Charter of rights (right to be informed and be provided with your right to contact counsel of your choice prior to your provision of breath). The end goal is to get the breathalyzer readings (or the Certificate of the Qualified Technician ruled inadmissible by the Court. Without the readings in evidence the Crown has no evidence and the charges will be dismissed. For examples of these defences see the following cases which Jamie Butler of Butler & Company has defended:

R. v. Riviere http://canlii.ca/t/1jtw0
R. v. Diguilio http://canlii.ca/t/1nprf

Other defences might involve technical defences surrounding the collection of breath samples. For instance, where “mouth alcohol” affects or contaminates the sample process. Or more technically, where the police do not take measures to guard against mouth alcohol from affecting the subsequent readings. [FOR A GREATER DISCUSSION OF “MOUTH ALCOHOL” AND ITS EFFECTS ON BREATHALYZER DEVICES CLICK HERE]

For an example of these types of cases see:
R. v. Seivewright http://canlii.ca/t/2dfv4

Sometimes it is the timeliness of the provision of breath samples that causes acquittals. The police merely waiting 15 minutes for a tow truck to tow away an accused’s vehicles from a police arrest can cause a defence to this charge. See the following cases:

R. v. Brown http://canlii.ca/t/1k8c7

The defences to these charges are very technical. Our defence lawyer Jamie Butler is a master at creating technical defences for these such charges. To best determine your defence for this charge you should contact Jamie Butler to discuss the unique facts and circumstances that may apply to your case that may indeed create a technical defence for you.

Plea deals available to a driving over 80 milligrams charge:

Often times, though not every time, our lawyer, Jamie Butler is able to secure a plea negotiation for a substitutional charge to be added so that you plead guilty to a Motor Vehicle Act offence (such as “undue care and attention”) instead of a criminal driving over 80 milligrams charge. For most information about plea negotiations, the avoidance of a criminal record and retaining your privilege/right to drive CLICK HERE