Breathalyzers and driving over .08.

What is meant by "driving over .08"?

Driving over .08 (over 80) refers to the amount of alcohol in a your blood. If the level of alcohol in your blood was greater than 80 milligrams of alcohol in 100 milliliters of blood at the time of driving, then the charge is proved.

A person may be convicted of driving over.08 even if he appears sober if his blood alcohol level is over the legal limit.

Evidence of blood alcohol level is normally by way of a breath test, although in some cases a blood test may be taken. As in all criminal cases, the prosecution must prove the case beyond a reasonable doubt.

How does the prosecutor prove an over .08 charge?

To prove this charge, the prosecutor must call evidence showing the results of your breath/blood test.

Normally a police officer will testify as to the circumstances that brought you to his attention, a roadside "Checkstop" or "oad block" for instance. He will also testify as to the circumstances that led to him demanding a sample of your breath or blood. Finally, the officer will produce a "certificate of analysis" showing the test results. The prosecutor will ask the judge to admit this certificate as evidence, which shows that your blood alcohol level was over .08 at the time you were driving. If the certificate is admitted, and its results are not challenged, a conviction will likely result (subject to other considerations found in the "other issues" page).

This sounds simple, but it really isn't. Driving over .08 is a technical and complicated area of law, and the police and the prosecution must follow a strict set of procedures in order to have proof of a breath/blood test admitted into evidence.

How can you challenge a charge of driving over .08?

(a) Reasonable grounds for the breath/blood test.

To start with, think of the breath/blood test as a police search. The only difference is, instead of the police searching your house (for example), they are searching your blood for evidence of alcohol. The method of the search is through a breath or blood test.

But before the police can conduct a lawful search, they need to have the proper grounds to do so. The police can't just walk into your house, and they can't demand a sample of your breath or blood without reasonable and probable grounds. The police must respect the responsibilities placed on them by the Charter of Rights, which protects all citizens from unreasonable search and seizure.

The judge will hear the evidence surrounding the circumstances, which led up to the breath/blood test, and will determine whether the police had the required grounds to demand the sample. In some cases the judge will determine that the grounds did not exist, and the breath test results will not be admitted.

(b) Following the procedure in the Criminal Code.

The criminal code sets out a strict procedure that the police must follow when making a demand and taking a breath/blood sample. If the procedure is not followed, the test results may be excluded from evidence.

(c) Challenging the results of the breath test.

The results of the breath test aren't always correct.

• The police officer conducting the test may make an error.
• The machine itself may be improperly maintained, producing erroneous results.
• The amount of alcohol you drank (before or after driving) may not have resulted in a blood alcohol concentration that was over the legal limit.
• Your blood alcohol reading may be over the limit at the time you provided the sample, but under the limit at the time you were driving.
• Evidence, which contradicts the results of the breath/blood test, is commonly referred to as "evidence to the contrary". For a more detail discussion, see "I blew over.08/blood alcohol".

If you're charged with driving over .08, here is the bottom line.

Even if you blew over .08, that doesn't mean that you will be convicted. An experienced defence lawyer can conduct a detailed examination of the methods used by the police to obtain a sample of your breath/blood. This examination may reveal flaws, which can result in the evidence against you being excluded.

But in order for the test results to be excluded from evidence, they must be challenged. Challenges to test results are often successful, but they must be made properly in order to throw the results of the test into question.

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