Over 80 or Impaired? Understanding DUI Charges in Brampton and Peel
Most people charged with a drinking and driving offence in Peel Region leave the station with two charges, not one: impaired operation and over 80. They are usually written on the same paperwork and they arise from the same drive, so it is natural to think of them as one charge. They are not. They are separate offences, proved in different ways, and each has its own weak points.
Understanding the difference is one of the most practical things you can do early in your case, because it explains why one charge can fall away while the other survives, and why the Crown’s case is sometimes stronger or weaker than it looks.
Who Lays These Charges in Peel, and Where They Go
Peel Regional Police police Brampton and Mississauga. The Ontario Provincial Police police Caledon, as well as the provincial highways that run through the region, including Highways 401, 410, and 407. Either way, criminal charges from Peel are heard at the A. Grenville and William Davis Courthouse at 7755 Hurontario Street in Brampton, which houses both the Ontario Court of Justice and the Superior Court of Justice.
Impaired driving cases are usually prosecuted summarily and heard in the Ontario Court of Justice. If you have a date there, our Brampton courthouse guide covers the building, and our Brampton location page has an overview of the court.
Two Offences in One Section
Both offences are in section 320.14(1) of the Criminal Code:
- Paragraph (a), impaired operation: operating a conveyance while your ability to operate it is impaired to any degree by alcohol, a drug, or a combination of the two.
- Paragraph (b), over 80: having, within two hours after ceasing to operate a conveyance, a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood.
The penalties are the same. So are the licence consequences on the provincial side. What differs is what the Crown has to prove and how it proves it.
Over 80: A Case About Numbers and Procedure
Over 80 does not require the Crown to prove you were impaired. You can be convicted of it while driving perfectly, if your blood alcohol concentration was 80 or more within two hours of driving. The offence is proved by breath results from an approved instrument at the station, or occasionally by blood.
That sounds like a closed case. It is not, because the Criminal Code makes breath results conclusive only if a set of conditions was met. Section 320.31(1) requires that:
- before each sample, the qualified technician ran a system blank test with a result of not more than 10 mg, and a system calibration check within 10% of the target value of a certified alcohol standard
- there was an interval of at least 15 minutes between samples
- the results, rounded down to the nearest 10 mg, did not differ by more than 20 mg
Where those conditions are met, the lowest of the results is conclusive proof of your blood alcohol concentration at the time of the test. Where they are not, the Crown loses that shortcut.
The two-hour window
If the first sample was taken more than two hours after you stopped driving, section 320.31(4) still lets the Crown rely on the result, but only through a formula: where the reading is 20 mg or more, your concentration within the two hours is presumed to be the test result plus 5 mg for every 30 minutes beyond two hours. That makes the timeline of the investigation important. Every step between the stop and the first sample is recorded somewhere, and a defence review should reconstruct it.
What the Crown must disclose
Section 320.34 requires the Crown to disclose the information needed to check those conditions: the blank test results, the calibration check results, any error or exception messages the instrument produced when your samples were taken, the results of the analysis, and the certificate for the alcohol standard. If more is needed to test whether the instrument was working properly, the defence can apply for it, but the application must be served at least 30 days before it is heard, and heard at least 30 days before trial. Our article on Crown disclosure in Ontario explains how disclosure requests are made and pursued.
The post-driving drinking exception
Section 320.14(5) provides a narrow defence where someone drank after they stopped driving. It applies only if all three of these are true: you consumed alcohol after ceasing to operate the conveyance; you had no reasonable expectation at that point that you would be required to provide a sample; and your drinking is consistent both with the breath result and with your having been under 80 while driving. It is fact-specific and usually needs supporting evidence, but in the right case it matters.
When the number itself is aggravating
A higher reading makes the case more serious. On a first over 80 offence, the minimum fine rises from $1,000 to $1,500 where the concentration was 120 to 159, and to $2,000 where it was 160 or more. Section 320.22 also lists a concentration of 120 or more as an aggravating factor the court must consider at sentencing.
Impaired Operation: A Case About Observations
Impaired operation does not depend on any number. The question is whether your ability to operate the vehicle was impaired to any degree. That is a low threshold, but it has to be proved with evidence, and the evidence is observational:
- the driving itself: weaving, speed, a collision, a missed signal
- the officer’s observations at the vehicle: odour of alcohol, speech, eyes, coordination
- your behaviour through the arrest and at the station
- video, where it exists, from the cruiser, a body-worn camera, the booking area, or the breath room
Each of those observations can be tested. Many signs attributed to alcohol have innocent explanations: fatigue, nerves, cold weather, a medical condition, an injury. Video is often decisive, because it lets the court see for itself whether the person on screen matches the officer’s notes.
Impaired operation also covers drugs. In a drug case there is no breath reading, and the investigation typically involves a demand under section 320.28(2) for an evaluation by a specially trained evaluating officer, a blood sample, or both. Those cases are defended differently, and our drug-impaired driving page explains how.
Why the Distinction Matters in Practice
The two charges fail for different reasons, which is why the Crown usually lays both.
If the breath evidence is excluded, the over 80 charge usually cannot proceed. Breath results can be excluded under section 24(2) of the Charter where they were obtained in breach of your rights, most often through an arbitrary stop under section 9, a demand made without the required grounds under section 8, or a failure to properly implement your right to counsel under section 10(b). But the impaired operation charge may survive on the officer’s observations alone.
If the observations are weak, the impaired charge may fail, while the over 80 charge stands on a valid breath certificate.
If both are attacked successfully, the case ends. A realistic assessment of your file therefore looks at both charges separately: how strong the breath evidence is, how it was obtained, and what the observational evidence really shows when compared against the video. Our overview of Charter rights in criminal defence explains how those applications work.
What to Write Down Now
Because so much of an over 80 or impaired case turns on timing, the most useful thing you can do this week is write down what you remember, before the details fade:
- what you drank, how much, and over what period, including the time of your last drink
- when you started and stopped driving
- whether you had anything to drink after you stopped driving, and when
- the times you remember from the stop, the arrest, the drive to the station, and the breath room
- what you were told about calling a lawyer, and what happened when you tried
Keep the notes private and give them only to your lawyer.
The Licence Side Does Not Wait
Whichever charge you face, the Ministry of Transportation imposed an immediate 90-day licence suspension, a seven-day vehicle impoundment, and a $550 penalty when you registered 0.08 or more. That suspension runs from the date of the offence and is separate from the criminal case. The 90-day window for Ontario’s early resolution program also runs from that date.
The 90-day suspension does not last until trial. Unless you are convicted and prohibited, you can deal with the Ministry once it ends and potentially drive while the criminal case continues, subject to whatever reinstatement requirements your record triggers. Our article on what changed for impaired driving in Ontario in 2026 covers reinstatement and the current post-conviction consequences.
How Mor Fisher Can Help
On a Peel impaired driving file we treat the two charges as two cases. We check every section 320.31 condition against the instrument records, rebuild the timeline to the first sample, compare the officer’s notes with every piece of available video, and identify any Charter issues in the stop, the demands, and access to counsel. Then we give you an honest view of each charge, not just the file as a whole. More on our approach is on our impaired driving page.
Charged with over 80 or impaired driving in Brampton, Mississauga, or Caledon? Contact Mor Fisher LLP at 705-721-6642 or through our contact page. The breath records and video that decide these cases need to be requested early, and knowing which of your two charges is the stronger one changes how the case should be run.