Impaired Operation/Care and Control, Over 80


There are several charges which fall under the category of drinking and driving (or DUI):

1. Impaired Operation

2. Impaired Care or Control

3. Over 80 Operation

4. Over 80 Care or Control

Impaired vs. Over 80

These deal with the alcohol related elements of the offences.

Impairment describes the effect of alcohol on one's ability to drive. The amount of alcohol consumed, whether it be a lot or a little, is not relevant. The law describes impairment as any effect on the ability to drive, from slight to great, even if only a partial or contributing effect. Evidence relating to this charge normally involves observations of a person by others (police and/or civilians) which suggest that a person is affected by alcohol. Defences to this charge include attacks on the credibility and reliability of the witnesses and evidence showing that the observations are connected to innocent explanations, and not to alcohol consumption.

Over 80 is connected to the level of alcohol in the system. Whether or not a person is intoxicated is not a consideration. You are either over the legal limit or you are not. The blood alcohol concentration is determined by an analysis of breath samples taken. There are 2 types of samples:

1. Roadside samples which give a pass/fail result and only provide the police with the grounds to arrest, and

2. Intoxilyzer samples which provide the actual readings.

This charge is very technical in nature and the police are required to follow several steps in their investigation in order for them to be able to rely upon the breath samples obtained. If there is a problem with these procedures and requirements, or if there is a breach of a person's rights in the investigative process, the Crown may not be able to rely upon the samples obtained.




Operation vs. Care or Control

These deal with the driving aspects of the charge.

Operation is the actual driving of a vehicle, while Care or Control covers facts scenarios where there is no observed driving but the person charged has either an intention to drive or the danger of the vehicle being accidentally set into motion. Being in the driver's seat creates a presumption that one is in care or control. It would then be up to the person charged to prove that they got into the driver's seat for a reason other than to drive.


Each of the above charges has its own facts and processes necessary for the Crown to prove but all share the same minimum penalties under the Criminal Code. If you are found guilty of any one of the above charges, the Judge is required by law to impose a minimum sentence of:

•  $1,000 fine (which is subject to a 30% surcharge);


•  1 year driving prohibition

The Ministry of Transportation will also automatically impose mandatory effects on your licence:

•  A concurrent 1 year licence suspension;

•  The requirement to complete the "back on track" program to regain your licence;


•  The installation of an ignition interlock device as a condition on your licence upon its return

All of these penalties may be increased by the judge if:

•  the alcohol readings are high,

•  the poor driving or level of impairment is significant,


•  there is an accident or any injuries to any person

Also, the minimum penalties increase to jail sentences of 30 days and 4 months for 2nd and 3rd (or subsequent) convictions.

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