In order to convict you of operation over 80, the Crown must prove the following elements of the offence beyond a reasonable doubt:
- You operated a motor vehicle, vessel, aircraft or railway equipment;
- You were voluntarily impaired by alcohol; and
- Your blood alcohol concentration was equal to or exceeded 80 mg.
It is important to bear in mind that the vehicle does not need to be in motion for you to be charged with impaired driving. The Code defines “operate” as being in “care and control” of a motor vehicle, vessel or aircraft to the degree that you could easily set it into motion. In addition, if you have a blood alcohol concentration that is equal to or exceeds the legal limit within two hours of operating your vehicle, you can be convicted.
You also do not need to be behind the wheel of a car to be convicted. The vast majority of cases we deal with involve a motor vehicle, but this charge can include electric scooters, bicycles, canoes, and even hoverboards.
If serious harm is caused by alcohol-related driving, the charges may be upgraded, and the consequences made more severe. For example, an impaired driving charge may be upgraded to impaired driving causing bodily harm or impaired driving causing death.
Investigation of Blowing Over 80 Charges in Kelowna
A blowing over 80 investigation is usually initiated following a suspicion of impaired driving at a routine police stop, at the scene of an accident, at a check-stop, after a driver is pulled over or pursued, or following a report or complaint from an alleged witness.
The police have the right to ask you to perform a physical sobriety test at the roadside. The officer will likely also ask you to provide a breath sample by blowing into a handheld breathalyzer. This test is mandatory in Canada for all drivers regardless of why you were initially stopped. If you deny the officer’s request, you will likely be charged with section 320.15 of the Code, failure or refusal to comply with a demand. Please see here for more information regarding this offence.
As previously mentioned, you do not need to be driving to be investigated for blowing over 80. If an officer suspects that you’ve driven impaired within the past 2 hours, they can ask you to provide a breath sample.
At roadside, if you blow over, or refuse to blow, you will be arrested and taken to a police detachment for processing. Once at the detachment, if you failed the roadside breathalyzer test, you will be required to provide two further samples in a breathalyzer that measures your exact blood alcohol concentration. If the lower of the samples show a number equal to or over 80 mg of alcohol in 100 mL of blood, you will be charged with blowing over 80.
Bail Process and Conditions for Blowing Over 80 Charges in Kelowna
How do I get myself or a loved one out on bail for blowing over 80 charges in Kelowna?
For most impaired driving charges, it is not unusual for police to release you at the scene. Police will provide you with an Appearance Notice document outlining your charges, and any appearances you must make.
If the police feel that your circumstances require more onerous conditions they may require you to sign an Undertaking.
This document will outline your charges and include any specific conditions you must follow, including being prohibited from:
- Leaving the province;
- Alcohol consumption; and/or
- Staying out beyond a certain time (i.e. curfew).
If this is your second or subsequent impaired driving offence, or there are other accompanying charges, you may require a formal bail hearing.
The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than when you are brought to the district office or courthouse.
On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing.
The address is as follows:
1355 Water Street
Kelowna BC V1Y 9R3
Tel: (250) 470-6900
If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.
If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.
Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.
Because of these difficulties while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.
Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.
We will immediately do the following:
- Call the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
- Contact the prosecutor assigned to the bail hearing to start negotiating your release.
- Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
- Conduct either an in-person or teleconference bail hearing to secure your release.
When you attend your bail hearing, the judge will consider the following factors:
- Is detention necessary to secure your attendance in court?
- Is detention necessary to protect the public from a substantial risk of re-offence?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Although it is unlikely that you will be denied bail for this type of charge, restrictions may nevertheless be applied to your release. Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).
Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the prosecutor, we can conduct a formal bail hearing and work to convince the court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.
Where can I pay for bail for blowing over 80 charges in Kelowna?
If you or a loved one are charged with blowing over 80 in Kelowna and granted bail, you will likely be required to provide a cash deposit to secure release. You can pay bail at any courthouse in British Columbia. Even if you live in Victoria, you can pay bail there for someone detained in Kelowna.
The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday.
The contact details of the registry office at the Kelowna Courthouse are as follows:
1355 Water Street
Kelowna BC V1Y 9R3
Tel: (250) 470-6900
To pay your own bail, you can make a payment after you have your hearing, assuming you have sufficient funds with you to do so.
How do I change my release conditions for blowing over 80 charges in Kelowna?
Release on bail with blowing over 80 charges may require either a surety, cash or no-cash deposit.
Beyond that, you may face tight restrictions, including conditions to refrain from:
- Being behind the wheel of a motor vehicle;
- Using drugs or alcohol;
- Staying out beyond a certain time (i.e. curfew);
- Breaking any laws;
- Possessing weapons;
- Visiting certain places; and/or
The judge can also impose additional conditions such as:
- Residing where approved;
- Reporting to probation;
- Attending counselling; and/or
- Maintaining or seeking employment.
A variety of factors will be considered when determining your precise restrictions, including:
- Your criminal history;
- Your history of drug/alcohol usage;
- Your physical and mental condition;
- The nature of the alleged blowing over 80 offence; and
- The likelihood that you will flee.
If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.
Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions, that way you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.
Penalties for Blowing Over 80 Charges in Kelowna
Blowing over 80 is a subsection of impaired driving, which means that if convicted, you will face penalties for operation while impaired. Additionally, if your breath sample returns a “high” blood alcohol concentration reading, you will face significant mandatory minimum fines that are far higher than those given for basic impaired driving.
Impaired driving and impaired driving causing bodily harm are both hybrid offences, meaning that the Crown can elect to proceed summarily or by way of indictment. This decision impacts the punishments that are available, with summary being less severe and indictment being more severe. Where impaired driving causes death, the Crown must proceed by indictment.
The maximum punishments for impaired driving include:
- Impaired driving: Up to 2-years less a day imprisonment;
- Impaired driving causing bodily harm: Up to 2-years less a day imprisonment.
- Impaired driving: Up to 10-years imprisonment;
- Impaired driving causing bodily harm: Up to 14-years imprisonment;
- Impaired driving causing death: Up to life imprisonment.
Regardless of how the Crown proceeds, all impaired driving charges have mandatory minimum punishments:
- First offence: $1,000 fine;
- Second offence: 30-day imprisonment; and
- Third offence: 120-day imprisonment.
If your breath sample shows a “high” blood alcohol concentration, you will face additional mandatory minimum fines:
- Blood alcohol concentration equal to or exceeding 120 mg of alcohol in 100 mL of blood, but less than 160 mg of alcohol in 100 mL of blood: $1,500 minimum.
- Blood alcohol concentration equal to or exceeds 160 mg of alcohol in 100 mL of blood: $2,000 minimum.
The punishments you will have to endure for impaired driving increase where:
- One or more people were injured/killed by your impaired driving;
- Your blood alcohol concentration was excessively high;
- You were participating in a street race;
- You had a passenger with you under the age of 16;
- You were being paid for operating the vehicle;
- You were operating a large motor vehicle; and
- You were not permitted to be operating the vehicle.
As previously mentioned, you may also face an IRP punishment that, although not criminal, will significantly impede your freedom. P
ursuant to the Motor Vehicle Act, a peace officer will issue you an IRP “Notice of Driving Prohibition” if:
- They believe you were impaired by drugs and/or alcohol;
- You are tested and are found to be over your legal limit of drugs and/or alcohol; or
- You failed to comply with a demand to test your sobriety.
Penalties associated with an IRP include:
- Licence suspension;
- Participation in the Ignition Interlock Program;
- Participation in mandatory education courses; and
- Fines and tow bills.
Again, an IRP is an administrative charge issued by the province that is not the same as a criminal charge for impaired driving under the Code. To learn more about the specific penalties associated with an IRP, please see here.
A conviction for blowing over 80 can have many negative consequences on your future. You may experience difficulties securing employment in the field of your choice, especially in roles that require driving. The lifelong criminal record that results from a conviction can also hinder immigration, travel and you will almost certainly face higher insurance premiums as well.
For these reasons, even if you intend to accept responsibility for the offence, it is worthwhile to explore your options and consider all potential penalties. Even if the evidence is stacked against you, it may be possible to negotiate a resolution to avoid a lengthy jail sentence. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.
Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a conviction. In fact, we can canvass a range of sentencing options with the prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our resolutions page, or review our FAQ section on resolutions and other sentencing options.
Defending Blowing Over 80 Charges in Kelowna
What are the best defences to blowing over 80 charges in Kelowna?
The defence that is best for you will depend on the circumstances of your offence.
Generally, some of the best defences to blowing over 80 are:
- Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms (the “Charter”) sets out your rights before and after your arrest. If the police fail to abide by these rights, it can aid your defence.
- Involuntary Intoxication: If you did not voluntarily consume alcohol or drugs, this could help challenge the mental element of the offence. For example, if you are drugged without your knowledge.
- Defence of Necessity: If you or one of your passengers was at immediate risk of harm, and you drove for no longer than was necessary to escape that harm, you may have a defence to impaired driving.
- 320.14(5) Exception: According to the Code, you cannot be found guilty of impaired operation where you consumed the alcohol after you stopped operating the vehicle, you had no reasonable expectation that you would be required to provide a breath sample, your alcohol consumption was consistent with your blood alcohol concentration, and you did not have a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood while operating the vehicle. For example, if you drive home, then within two hours of driving you drink enough alcohol to blow over when asked to provide a breath sample, this can challenge a blowing over 80 charge.
We will carefully review the entire police file, which may include expert reports from a traffic reconstructionist, witness statements, medical evidence, collision reports, photographs, video footage, and other documents pertaining to your case. Our lawyers will explore every possible defence that could raise a reasonable doubt about the prosecution’s evidence and/or your Charter rights being upheld.
How can I help defend blowing over 80 charges in Kelowna?
If you have been charged with blowing over 80, the following actions can help your lawyer build a strong defence:
- Take detailed notes about your version of events to provide to your lawyer;
- Have passengers write down their observations of what happened;
- Collect and maintain all documents and records about the event;
- Gather any photographic evidence that you may have; and
- Log any relevant texts, emails or phone calls.
As soon as you are released, start gathering any information that may be of use to your lawyer. What information is relevant will depend on the facts of your case. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.
To be truly proactive about the matter, consider doing the following:
- Secure proof of employment;
- Secure reference letters;
- Enroll in counselling (e.g. alcohol or drug rehabilitation);
- Secure a record of prescriptions; and
- Secure a record of any mental health conditions you suffer from.
These steps can be very helpful in building an effective defence (or convincing the prosecutor to drop the charges altogether).
What can a lawyer do to help me defend against blowing over 80 charges in Kelowna?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause.
Some of these include:
- Assembling documents, photos, texts, etc. that contradict the allegation and support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches; and
- Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.
Even if the charges proceed and you are found guilty, a good lawyer can significantly reduce the severity of the consequences for you.
Most of the information above relates to simple blowing over 80 charges, which can become increasingly complex and fact-specific depending on the circumstances of your case.
We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.
To learn more about how we can help, please contact our team of impaired driving lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.
Blowing over 08 FAQs
- How do I find the best lawyer for my DUI charge?
- Can I be charged with a DUI even if I wasn’t driving or the vehicle wasn’t moving (Care or Control?)
- What is the penalty if I plead guilty or I am found guilty of a DUI?
- How will my DUI charge affect my license in Alberta?
- How can I avoid a criminal record if I am guilty of a DUI?
- Can I go to the US if I am found guilty of a DUI?
- Can I get charged with a DUI if I am driving while I am high on drugs?