An impaired driving charge brings two sets of consequences at once: a criminal case under the Criminal Code and immediate licence penalties under Ontario law. This page explains the charges often called DUI, “over 80” and refusal, what the police may demand at the roadside, and what happens to your licence. A criminal defence lawyer at Law Wise, based in Mississauga and serving the entire GTA and Ontario, can help you respond to an impaired driving, over 80 or refusal charge.
The three main charges
- Impaired operation (s 320.14(1)(a)). Operating a conveyance while your ability to do so is impaired to any degree by alcohol, a drug, or both. The Crown proves impairment through evidence of driving, speech, balance and other observations. No breath reading is needed.
- 80 or over (s 320.14(1)(b)). Having a blood alcohol concentration of 80 mg of alcohol in 100 mL of blood or more within two hours after ceasing to operate. There are similar offences for blood drug concentrations set by regulation, and for alcohol and drugs combined.
- Failure or refusal (s 320.15). Failing or refusing, without reasonable excuse, to comply with a lawful demand for a breath sample, blood sample or sobriety test, knowing that the demand was made.
“Conveyance” covers a motor vehicle, a vessel, an aircraft and railway equipment. “Operate” means to drive or to have care or control (s 320.11), so a person can be charged in a parked vehicle. A person found in the driver’s seat is presumed to have been operating the vehicle unless they show they were not there for the purpose of setting it in motion (s 320.35).
Criminal Code penalties for impaired, 80 or over, and refusal
- First offence. Minimum fine of $1,000. The minimum rises to $1,500 for a reading of 120 to 159 mg, and to $2,000 for a reading of 160 mg or more or for a refusal.
- Second offence. Minimum of 30 days in jail.
- Each later offence. Minimum of 120 days in jail.
- Maximum. 10 years by indictment. On summary conviction, two years less a day, a fine of up to $5,000, or both.
- Driving prohibition. Mandatory. One to three years for a first offence, two to ten years for a second, and at least three years for each later offence, in addition to any time in jail.
- Bodily harm or death. Up to 14 years where bodily harm is caused, and up to life where death is caused.
Because the Code sets a minimum penalty, a discharge is not available for these offences (s 730). Source: Criminal Code, RSC 1985, c C-46, ss 320.11, 320.14, 320.15, 320.19 to 320.21, 320.24 and 320.35, as they read on 11 October 2026 (Justice Laws version current to 21 September 2026).
Ontario licence penalties, separate from the criminal case
Ontario imposes its own penalties at the roadside, before any finding of guilt. The province’s published list, as updated on 30 June 2026, sets out the following for a driver who registers 80 or over, fails or refuses a test, or performs poorly on a drug recognition evaluation:
- an immediate 90-day licence suspension;
- a 7-day vehicle impoundment;
- a $550 penalty, plus a licence reinstatement fee;
- a mandatory education course on a first occurrence, and a treatment program on later occurrences.
A criminal conviction then brings a further Ontario licence suspension of at least one year for a first conviction, at least three years for a second conviction within ten years, and a lifetime suspension for a third, which may be reduced after ten years if conditions are met. A mandatory education or treatment program and an ignition interlock condition also apply. Ontario has separate penalties for the “warn range” of 0.05 to 0.079, starting with a 7-day suspension and a $250 penalty, and zero-tolerance rules for drivers aged 21 or under, novice drivers and commercial drivers. These amounts and periods change, so confirm them on the Ontario government’s impaired driving page before relying on them.
What the police may demand
The Criminal Code gives the police staged powers. An officer who has a screening device with them may, during any lawful traffic stop, require a driver to give a roadside breath sample without needing to suspect that the driver has been drinking (s 320.27(2)). Separately, an officer who reasonably suspects alcohol or a drug in a person’s body may demand a roadside breath sample, a saliva sample or co-ordination tests (s 320.27(1)). If the officer then has reasonable grounds to believe an offence was committed, the officer may demand breath samples on an approved instrument, usually at a police station, or in some cases blood samples or a drug evaluation (s 320.28). The demand and the samples must be made as soon as practicable. After an arrest you have the right to be told the reason and to speak with a lawyer without delay, and the police must give you a reasonable chance to do so before the station tests.
Refusing does not avoid a charge. Refusal is its own offence with a higher minimum fine than a first “80 or over” offence, and it brings the same Ontario roadside penalties.
Issues a defence lawyer looks at
- The stop and the demand. Whether the officer had the legal basis for each step, and whether each demand was made and carried out within the time the law requires.
- Right to counsel. Whether you were told of your right to a lawyer, and whether you were given a real opportunity to speak with one in private.
- The breath instrument. Readings are conclusive proof only if the statutory conditions are met, including system checks and at least 15 minutes between samples (s 320.31). Your lawyer reviews the instrument records in the disclosure.
- Care or control. Whether a person in a parked vehicle was there to drive, and whether there was a realistic risk the vehicle would be set in motion.
- Drinking after driving. The Code contains a narrow exception where alcohol was consumed after driving and the person had no reason to expect a demand (s 320.14(5)).
- Evidence of impairment. In a charge based on observations, whether the signs described prove impairment or have another explanation, such as fatigue, injury or a medical condition.
First steps after a charge
- Note the datesWrite down when your 90-day suspension ends, when the vehicle can be collected, and your first court date.
- Do not drive while suspendedDriving during a suspension or prohibition is a separate offence and can lead to a further impoundment.
- Write down the timelineRecord what you ate and drank and when, the time you were stopped, what the officer said, and when each test was done. Keep receipts.
- List witnesses and camerasNote who was with you and where video may exist, such as a restaurant, parking lot or dash camera.
- See a lawyer before your first appearanceYour lawyer requests disclosure, including video from the cruiser and the station, and reviews it with you.
How Law Wise helps
- Reviewing the stop, the demands and the timing against the Criminal Code and the Charter.
- Examining the breath instrument records and station video.
- Explaining the Ontario licence consequences and the ignition interlock program in your situation.
- Advising on the realistic options, including trial, and on the effect of a conviction on work, insurance and immigration status.
Your file is handled by a Law Wise lawyer licensed by the Law Society of Ontario. Service is available in English, Urdu, Punjabi and Hindi, and, if you retain the firm, fees are explained and confirmed in writing before work starts.
Common questions about impaired driving charges
Should I have refused the breath test?
No. Refusing a lawful demand without a reasonable excuse is a criminal offence. The minimum fine for a first refusal is $2,000, which is higher than the minimum for a first “80 or over” offence, and the same Ontario suspension and impoundment apply.
Can I drive while my case is before the court?
Not during the 90-day Ontario suspension. After it ends and you have paid the reinstatement fee, you can usually drive until the case is decided, unless a release condition says otherwise. A conviction brings a new prohibition and suspension.
I was asleep in my parked car. Why was I charged?
“Operate” includes having care or control of a vehicle. A person in the driver’s seat is presumed to be operating unless they show they were not there to set the vehicle in motion. The facts matter: where the keys were, whether the engine was running and whether there was a plan to get home another way.
I felt fine. Does that matter?
For the “80 or over” offence, no. That offence is proved by the reading, not by how you felt or drove. How you appeared is relevant to a charge of impaired operation.
Will I get a criminal record?
A conviction for impaired operation, “80 or over” or refusal results in a criminal record, because a discharge is not available for these offences. This is one reason to have the evidence reviewed before deciding how to plead.
Can a conviction affect my immigration status?
Yes. These offences carry a maximum of ten years by indictment, which can have serious consequences for a permanent resident or a foreign national. Get immigration advice before any plea. See immigration.
Charged with impaired driving, over 80 or refusal?
Bring every document the police gave you, including the suspension notice. Early review matters because some evidence is kept for a limited time.
This page is general legal information for Ontario, current as of 11 October 2026. It is not legal advice and does not create a lawyer-client relationship. For advice about your situation, please speak with a lawyer.