CC 320.14(1)(B)

BAC Over Legal Limit Not Proven

alcohol test
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    “AC over the legal limit not proven” as Legal Defence

    Defence: Having blood alcohol concentration (BAC) over the legal limit is not proven.


    What this Means

    It has not been proven that accused had a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a conveyance (a conveyance is defined as a motor vehicle, an aircraft, a vessel or railway equipment).

    For any case in which you are charged with operating a conveyance with a blood alcohol concentration over the legal limit (80 mg of alcohol in 100 ml of blood or more), the Crown will either need to rely on your breath test results from when you blew into an approved instrument (usually an Intoxilyer 8000C located at a police station) or occasionally, an analysis of a sample of your blood (this would only occur in circumstances where you were unable to provide a breath sample, likely due to injury as a result of a car accident).

    Because the Criminal Code authorizes the police to require that you provide
    evidence (samples of your breath or blood) that may be self-incriminating and because of the importance of ensuring that, if you are found guilty of a criminal offence, it is based on highly reliable evidence, there are a number of strict
    procedures and technical requirements that the police must follow and satisfy in order for the Crown to be able to rely on an analysis of your breath or blood to prove that your blood alcohol concentration was above the legal limit within two hours of when you ceased to operate a conveyance. We are highly skilled at identifying mistakes made by the police and raising a reasonable doubt as to whether these procedures and requirements were properly followed and adhered to.

    Charged with a Criminal Offence? Get Every Defence.

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    You are presumed innocent.  With over 25 years of successful trial experience, Norm and Marcus will argue for every defence available to you and ensure that all of your rights are protected.  We will fight for the positive result you need to move on with your life.
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    Recent Successes

    BAC over legal limit not provenCharges DismissedImpaired DrivingOur Case

    R. v. R.M — Driving over the legal limit charges dismissed

    Our client was charged was charged with driving over the legal limit. His breath test results showed that his blood alcohol concentration was over two and a half times the legal limit. At trial, the breath technician testified that our client provided breath samples, the result of which were 220 mg per 100 ml of blood. At trial, we successfully argued that the Crown had not proven the our client was over the legal limit because the breath technician did not testify that the result was 220 mg of alcohol per 100 ml of blood so there was no evidence of what the 220 mg referred to. The charge against our client was dismissed.
    BAC over legal limit not provenCharges DismissedImpaired DrivingOur CaseOver 80

    R. v. M.H — Driving Over the Legal Limit Charges Dismissed Due to Requirements not Being Met

    Our client was charged with driving over the legal limit. She was at a fast food drive though when the restaurant employee called the police to report that they believed they were dealing with an impaired driver. The police arrived a short while later and spoke to our client. They smelled alcohol on her breath and demanded that she provide a breath sample into an approved screening device (a roadside breathalyzer). A few minutes later, she provided a breath sample into the screening device and the result was a fail. She was subsequently arrested and taken to the police station where she provided two samples of her breath, the results of which were over 80. At trial, the Crown attempted to prove that our client was over the legal limit by relying on a document called a Certificate of a Qualified Breath Technician (this is a document in which the breath technician records the test results as well as other information that relate to the breath testing process. Having identified a mistake that the breath technician had made while filling out the Certificate of a Qualified Breath Technician, at trial, we successfully argued that one of the technical requirements had not been proven beyond a reasonable doubt. The charge against our client was dismissed.