This offence relates to the blood alcohol concentration of an individual who was driving or was in care and control of a vehicle or conveyance. There is a requirement of proof that a person was at or over 80 mg of alcohol in 100 ml of blood at the time they were operating a motor vehicle or conveyance. Sometimes individuals are charged with impaired operation/care and control along with this offence and other times individuals are just charged with Over 80 mg of alcohol in 100 ml of blood. The burden is on the Crown Attorney to prove an individual was at or over 80 mg of alcohol in 100 ml of blood at the time they were operating a motor vehicle or conveyance beyond a reasonable doubt which is a very high standard.
The blood alcohol concentration is analyzed either by way of a breath sample or a blood sample. The prerogative of defence counsel would be to litigate that the samples obtained should be excluded due to a violation of that individual’s rights contrary to the Charter, or challenge the accuracy of the samples themselves. Challenging the accuracy of the samples can be based on external factors, technological factors, and/or personal factors of the individual themselves.
The laws have changed with respect to this offence. For example, prior to the changes a viable defence included what was called “bolus” drinking. The premise of “bolus” drinking was that an individual consumed a quantum of alcohol shortly before operating or being in care and control of a motor vehicle or conveyance. The relevant time span in relation to this type of defence was within the 15 minute margins. The logical defence was that at the time the individual was operating or was in care and control of the motor vehicle or conveyance they were under 80, but, when they ultimately provided a breath sample to a qualified breath technician they were over 80. This defence largely had to do with absorption rates of alcohol in an individual’s system.
Currently, this defence is no longer available for this type of offence that occurred after December 18, 2018. In fact, subject to constitutional challenges, the new laws have changed the approach with respect to the timing of the blood alcohol concentration with respect to operation/care and control of a motor vehicle or conveyance. The new laws make it a criminal offence, pursuant to section 320.14 of the Criminal Code of Canada to be at or over 80 mg of alcohol in 100 ml of blood within 2 hours after the cessation of operation or care and control of a motor vehicle or a conveyance.
However, an individual does not commit a criminal offence if;
- They consumed alcohol after stopping to operate or being in care and control of a motor vehicle or conveyance;
- After stopping to operate or being in care and control of a motor vehicle or conveyance, they have no reasonable expectation that they would be required to provide a sample of breath or blood; and
- Their blood alcohol consumption is consistent with their blood alcohol concentration being under 80 mg of alcohol in 100 ml of blood at the time of operation or care and control of a motor vehicle or conveyance.