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I was charged with “Over 80 mg” (Excess blood alcohol). I did blow “over 80 mg”, so I might as well plead guilty, right?


Wrong. A very signification percentage of “Over 80 mg” charges in Toronto, and generally in Ontario, resulting in acquittal.

An “Over 80 mg” is a very technical in nature charge (in contrast with an Impaired) that is often defended based on constitutional rights violations or based on the police’s mistakes which in essence are what is called technicalities.

The Crown is required to prove quite a lot in order to get a conviction for an Over 80 mg. Importantly, the Crown has to show that your blood alcohol content was over 80mg at the time of driving and not at the time of the tests. This task is quite far from simple, contrary to what one might think. Alcohol content in the human body might be rising as alcohol makes its way from the stomach to blood, or it might be decreasing as alcohol is being metabolized, i.e. detoxified and removed from the blood. It is therefore not only difficult but in fact practically impossible to “relay the readings back” or calculate the exact blood alcohol content at the time of driving based on the results of the breath test that usually occurs at least an hour later.

For example, if the judge believes that your blood alcohol concentration might have been just under 80mg at the time of driving, you will be acquitted. In some cases, the Crown or defence or both need to call experts-toxicologists in order to resolve scientific issues related to the alcohol absorption, as well as the operation of the Intoxylizer machine.

It is worth noting that results of the test that is administered on the roadside, as opposed to the tests at the station, are not evidence of actual blood alcohol content for trial purposes, but rather only evidence of grounds for arrest. David Genis is an experienced DUI Lawyer Toronto with specialization in successfully defending DUI related cases.

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