Operation while impaired
320.14 (1) Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
(b) subject to subsection (5) [operation while impaired – exception for alcohol], has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
(c) subject to subsection (6) [operation while impaired – exception for drugs], has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation; or
(d) subject to subsection (7) [operation while impaired – exception for alcohol and drugs], has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.
[omitted (2) and (3)]
Operation — low blood drug concentration
(4) Subject to subsection (6) [operation while impaired – exception for drugs], everyone commits an offence who has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (1)(c) [impaired operation – within 2 hrs BAC exceeding regulations].
Exception — alcohol
(5) No person commits an offence under paragraph (1)(b) [impaired operation – within 2 hrs BAC exceeding 80] if
(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) [proof by inference from breath or blood samples] or (2) [proof by inference of blood samples – concentration when sample taken] and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
Exception — drugs
(6) No person commits an offence under paragraph (1)(c) [impaired operation – within 2 hrs BAC exceeding regulations] or subsection (4) [operation with low blood drug concentration] if
(a) they consumed the drug after ceasing to operate the conveyance; and
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance.
Exception — combination of alcohol and drug
(7) No person commits an offence under paragraph (1)(d) [impaired operation – within 2 hrs BAC and drugs exceeding regulations] if
(a) they consumed the drug or the alcohol or both after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of a bodily substance; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) [proof by inference from breath or blood samples] or (2) [proof by inference of blood samples – concentration when sample taken] and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration less than the blood alcohol concentration established under paragraph 320.38(c) [power to make regs re blood alcohol and blood drug concentration].
Lawyers have created numerous defences for the drunk driving allegation because "over 80" is one of the most often filed offences. The prosecution must establish this beyond a reasonable doubt even if the defendant is proven to have an unlawful blood alcohol concentration.
Police must adhere to an extremely stringent and time-sensitive procedure when gathering evidence for a drunk driving charge because the breath samples they take are a search without a warrant.