What is meant by “driving over .08″?
Driving over .08 (over 80) refers to the amount of alcohol in your blood. If the level of alcohol in your blood was greater than 80 milligrams of alcohol in 100 millilitres of blood at the time of driving, then the charge is proved.
A person may be convicted of driving over .08 even if they appear sober if their blood alcohol level is over the legal limit.
Evidence of blood alcohol level is normally by way of a breath test (breathalyzer). 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 or blood test.
Normally a police officer will testify and will produce a “certificate of analysis” showing the test results of your breath test. 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.
This sounds simple, but it really isn’t because driving over .08 is a technical and complicated area of law, and the police and prosecution must follow a strict set of procedures to have proof of a breath/blood test admitted into evidence.
How can you challenge a charge of driving over .08?
1. Reasonable grounds for the breath/blood test.
Before the police can conduct a lawful search, they must have proper grounds. The police can’t demand a sample of your breath or blood without reasonable and probable grounds.
The judge will hear the evidence surrounding the circumstances that 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.
2. 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.
3. 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.
If you’re charged with driving over .08, here’s the bottom line.
Even if you blew over .08, that doesn’t mean you’ll 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. An impaired driving lawyer knows how to do this.