Impaired operation, over 80, and refusal are three distinct offences under the Criminal Code, and police commonly lay more than one from a single stop.
A license suspension also takes effect at the roadside, before any court date, under the Highway Traffic Act. It is separate from the criminal charge and is not resolved by it.
How Foote Law Can Help
Foote Law defends impaired driving, over 80, and refusal charges throughout Ontario:
- Review of Crown disclosure, including the officer’s notes, the screening and breath testing records, and any video.
- Charter applications where the stop, the demand, the detention, or the right to counsel was not properly handled.
- Challenges to the reliability of the breath or blood evidence.
- Advice on the administrative suspension and the reinstatement requirements, which run separately from the charge.
- Negotiation with the Crown on resolution where the facts support it.
- Applications for delayed sentencing where a treatment program is appropriate.
- Trial representation in the Ontario Court of Justice.
Foote Law accepts Legal Aid Ontario certificates and Employee Assistance Program referrals. Call Foote Law in Orangeville at (519) 940-8309 or in Fergus at (519) 772-6139. Foote Law serves clients in Orangeville, Fergus, Brampton, Shelburne, Alliston, Barrie, Owen Sound, Newmarket, Guelph, Centre Wellington, and throughout the Greater Toronto Area, in person and virtually.
Three Different Charges
Impaired operation under section 320.14(1)(a) requires the Crown to prove that the ability to operate the vehicle was affected by alcohol or a drug. The evidence is observational: driving pattern, speech, balance, and performance on sobriety tests. No reading is required, and a person can be convicted while under 80.
Over 80 under section 320.14(1)(b) requires only the concentration of 80 milligrams of alcohol in 100 millilitres of blood or more, within two hours of operating. Driving conduct is irrelevant to the offence, and a person can be convicted while driving normally.
Refusal under section 320.15(1) requires a demand and a failure or refusal to comply with it, without reasonable excuse. Whether the person was impaired is not an element.
Why the License Is Already Suspended
Two systems operate at once. The Highway Traffic Act imposes administrative penalties at the roadside, without a court process and without any finding of guilt. The Criminal Code imposes fines, prohibitions, and imprisonment, and only after a conviction.
The roadside suspension does not dispose of the criminal charge, and a criminal charge that is later withdrawn does not undo the administrative consequences that have already run.
What the Roadside Suspension Costs
A reading of 0.08 or above, a refusal, or a failed evaluation by a drug recognition expert carries a ninety-day administrative driver’s license suspension, a seven-day vehicle impoundment, and a $550 penalty.
A reading in the warn range of 0.05 to 0.079 carries a seven-day suspension and a $250 penalty on a first occurrence. A third occurrence carries a thirty-day suspension, a $450 penalty, a sixteen-hour treatment program, and a six-month ignition interlock condition.
Drivers under 21 and holders of G1, G2, M1, and M2 licenses are subject to zero tolerance, and any detectable alcohol or drug carries the same escalating roadside suspensions and penalties.
Two changes took effect on 1 January 2026. The look-back period for determining whether an occurrence is a first, second, or subsequent one moved from five years to ten. And a first roadside occurrence now requires completion of a remedial education program administered by the Centre for Addiction and Mental Health.
A reinstatement fee of $281 is payable each time a suspended license is reinstated.
What Police Can Demand at the Roadside
Under section 320.27(1), an officer who has reasonable grounds to suspect that a person who operated a conveyance within the preceding three hours has alcohol in their body may demand physical coordination tests, a breath sample into an approved screening device, or both.
Under section 320.27(2), an officer who has an approved screening device in their possession may demand a breath sample from a person operating a motor vehicle without any suspicion that the driver has consumed alcohol. The provision requires the sample to be provided immediately, and a demand that is not made immediately can be challenged.
Under section 320.28, an officer with reasonable grounds to believe the person operated a conveyance while impaired or over the limit may demand breath samples into an approved instrument or a blood sample.
Section 320.31(9) provides that a statement made to an officer, including one compelled under a provincial Act, is admissible to justify a demand under section 320.27 or 320.28.
Refusal Carries a Higher Minimum Fine
Section 320.19(4) sets the minimum fine for a first refusal at $2,000. The minimum for a first impaired or over 80 conviction is $1,000.
Refusal is also a complete offence on its own. It does not require proof that the person had consumed alcohol or was impaired.
The Penalties on Conviction
Impaired operation, over 80, and refusal are all hybrid offences under section 320.19(1). On indictment the maximum is ten years. On summary conviction the maximum is a fine of not more than $5,000, imprisonment for two years less a day, or both.
The minimum punishment is the same for each of the three offences:
- First offence: a fine of $1,000.
- Second offence: imprisonment for 30 days.
- Each subsequent offence: imprisonment for 120 days.
Section 320.19(3) raises the first-offence minimum for over 80, where the reading is high: not less than $1,500 where the concentration is 120 or more but less than 160, and not less than $2,000 where it is 160 or more.
Section 320.26 governs how earlier convictions are counted in determining whether an offence is a second or subsequent one.
How Long the Driving Prohibition Lasts
Section 320.24(1) requires the court to make a prohibition order on conviction. Under subsection (2), the period is
- Not less than one year and not more than three years on a first offence.
- Not less than two years and not more than ten years on a second offence.
- Not less than three years on each subsequent offence.
In each case the prohibition runs in addition to the entire period of any imprisonment imposed.
The Ignition Interlock Requirement
For offences committed on or after 1 July 2026, an ignition interlock device is mandatory for every driver convicted of a criminal impaired driving offence in Ontario. The device requires a breath sample before the vehicle will start, and the driver is responsible for its installation and maintenance.
A six-month zero-tolerance condition applies after the interlock period ends.
What Makes a Sentence Worse
Section 320.22 directs the court to consider the following as aggravating circumstances, in addition to any others:
- The offence resulted in bodily harm to, or the death of, more than one person.
- The offender was racing or in a contest of speed.
- A person under the age of 16 was a passenger.
- The offender was being paid to operate the conveyance.
- The offender’s blood alcohol concentration was at or over 120 milligrams of alcohol in 100 millilitres of blood.
Delayed Sentencing for Treatment
Under section 320.23, a court may delay sentencing to allow an offender to attend a treatment program approved by the province, with the consent of the Crown and the offender.
Where the offender successfully completes the program, the court is not required to impose the minimum punishment. Under sections 320.24(6) to (9), a prohibition order applies during the period of delay.
Charged With Impaired Driving?
An impaired driving case turns on the lawfulness of the stop and the demand, the handling of the right to counsel, and the reliability of the testing. Those are assessed on the disclosure, and the administrative suspension runs while that work is done.
Call Foote Law in Orangeville at (519) 940-8309 or in Fergus at (519) 772-6139.
