Charged With Impaired Driving in Ontario? The 2026 Guide to Over 80, Refusal, Penalties and Defences
An impaired driving charge puts your licence, your job and your record at risk from the moment you are stopped. Here is how the law works in 2026, what you face, and where the strongest defences are found.
Key takeaways
- The main offences are impaired operation, having a blood alcohol concentration of 80 mg or more within two hours of driving ("over 80"), and refusing a lawful demand.
- A first conviction carries a mandatory minimum fine of $1,000, rising to $1,500 at 120 mg, and $2,000 at 160 mg or for refusal. A second offence carries at least 30 days in jail.
- Ontario's rules in force since July 1, 2026 add, on a first conviction, a licence suspension of at least one year and at least one year with an ignition interlock device.
- Police can demand a roadside breath sample from any lawfully stopped driver, but only if they have an approved screening device with them (R. v. Breault, 2023 SCC 9).
- Many cases are won on the details: the legality of the stop, the timing of each demand, the right to counsel, and disclosure.
Most people charged with impaired driving have never been in a courtroom. Within hours of a roadside stop, they may have lost their licence, had their car towed and been handed a court date. What happens next depends on the evidence, the procedure police followed, and how early a defence is prepared. This guide explains the law as it stands in November 2026.
The offences
Impaired driving offences are found in Part VIII.1 of the Criminal Code. The term used is "operating a conveyance", which covers driving a car and also boats, aircraft and railway equipment.
| Offence | What the Crown must prove |
|---|---|
| Impaired operation (s. 320.14(1)(a)) | You operated a conveyance while your ability to do so was impaired to any degree by alcohol, a drug or both. |
| "Over 80" (s. 320.14(1)(b)) | Within two hours after you stopped operating, your blood alcohol concentration (BAC) was 80 mg of alcohol per 100 mL of blood or more. |
| Drug levels (s. 320.14(1)(c) and (4)) | Within two hours, your blood drug concentration met a prescribed limit. For THC, 2 to under 5 ng/mL is a less serious offence; 5 ng/mL or more is the more serious offence. |
| Refusal (s. 320.15) | You failed or refused, without reasonable excuse, to comply with a lawful demand for a breath, blood or other sample or test. |
The Code also provides an exception for "over 80" where a person drank after they stopped driving, had no reasonable expectation of being required to provide a sample, and their drinking is consistent with a BAC under 80 at the time of driving (s. 320.14(5)). This defence is narrow and must be supported by evidence.
Roadside screening: what police can and cannot do
- Mandatory alcohol screening. Since December 2018, an officer who has an approved screening device in their possession may demand a roadside breath sample from a driver they have lawfully stopped, without needing to suspect alcohol (s. 320.27(2)).
- Reasonable suspicion demands. Where the officer reasonably suspects alcohol or a drug in your body, they may demand roadside breath, physical coordination tests or an oral fluid sample (s. 320.27(1)).
- "Immediately" means immediately. In R. v. Breault, 2023 SCC 9, the officer demanded a breath sample but had to call for a screening device. The Supreme Court held that, outside unusual circumstances, a demand made when the officer cannot obtain the sample immediately is invalid, so the refusal charge failed.
- The stop itself must be lawful. In R. v. McColman, 2023 SCC 8, the Supreme Court held that Ontario police had no power under the Highway Traffic Act to conduct a random sobriety stop on a private driveway, and that the stop breached the Charter. (In that case, the evidence was still admitted, which shows why every Charter argument must be fully developed.)
Penalties on conviction
Criminal Code minimums
| Situation | Mandatory minimum (s. 320.19) |
|---|---|
| First offence: impaired, or over 80 with BAC 80 to 119 | $1,000 fine |
| First offence: BAC 120 to 159 | $1,500 fine |
| First offence: BAC 160 or more | $2,000 fine |
| First offence: refusal | $2,000 fine |
| Second offence | 30 days' imprisonment |
| Third and subsequent offences | 120 days' imprisonment |
A conviction also brings a federal driving prohibition (at least one year for a first offence), a criminal record, and serious insurance and immigration consequences. Maximum sentences are much higher, particularly where bodily harm or death is caused.
Ontario licence consequences (in force since July 1, 2026)
According to the Government of Ontario, on a criminal impaired driving conviction:
- First conviction: licence suspension of at least 1 year, a mandatory education or treatment program, an ignition interlock device for at least 1 year, then a minimum 6-month zero alcohol and zero drugs ("P") condition.
- Second conviction within 10 years: suspension of at least 3 years and interlock for at least 3 years.
- Third conviction within 10 years: lifetime suspension, which may be reduced after 10 years if criteria are met, interlock for at least 6 years and a medical evaluation.
- Fourth conviction within 10 years: lifetime suspension with no possibility of reduction.
In some cases, the suspension can be shortened by installing an ignition interlock device early.
Immediate roadside penalties (before any conviction)
| Warn range (BAC 0.05 to 0.079, or failed field sobriety test) | BAC 0.08+, refusal, or failed drug evaluation | |
|---|---|---|
| First time | 7-day suspension, 8-hour course, $250 | 90-day suspension, 7-day vehicle impoundment, 8-hour course, $550 |
| Second time | 14-day suspension, 16-hour program, $350 | 90-day suspension, 7-day impoundment, 16-hour program, $550 |
| Third time | 30-day suspension, 16-hour program, 6-month interlock, $450 | 90-day suspension, 7-day impoundment, 16-hour program, 6-month interlock, $550 |
A licence reinstatement fee applies each time. Ontario's zero tolerance rules also apply to drivers aged 21 and under, G1, G2, M1 and M2 licence holders, and commercial drivers: no alcohol or cannabis at all.
Where defences are found
Every case is different, but the strongest defences usually come from a careful review of what police did, minute by minute.
- The stop. Was there lawful authority to stop you where you were? An arbitrary detention can support exclusion of evidence.
- The roadside demand. Was a screening device actually on hand? Was the demand made and complied with "immediately"? Was there reasonable suspicion where it was required?
- The right to counsel. Once you were taken for breath testing at the station, were you told of your right to a lawyer, given a real opportunity to speak to one in private, and was questioning held off until you did?
- Timing and the two-hour window. Were breath samples taken as required, and is the evidence consistent with the timeline? Did you drink after driving?
- The instrument and the technician. Were approved instruments used properly, with the required tests and intervals? Some records are disclosed automatically; others must be specifically requested and justified.
- Impairment evidence. In an impaired operation charge, the officer's observations are tested in cross-examination. Fatigue, nerves, injury, weather and medical conditions can explain symptoms.
- Delay. The Jordan time limits apply to impaired driving charges. See our guide to court delays in Ontario.
What to do after you are charged
- Write down everything you remember while it is fresh: where you were, what you ate and drank and when, what the officer said, and the times of each step.
- Keep every document police gave you: the promise or undertaking, notices of suspension and impoundment, and the court date.
- Do not discuss the facts with anyone other than your lawyer, and do not post about it online.
- Attend every court date or have your lawyer attend for you where permitted.
- Get advice early. Disclosure requests, Charter issues and delay rights are strongest when raised from the start.
Frequently asked questions
Can I refuse a roadside breath test in Ontario?
Refusing a lawful demand is a criminal offence with a minimum $2,000 fine on a first conviction, the same licence consequences as impaired driving, and roadside penalties. Whether a demand was lawful is a separate question your lawyer can examine afterwards.
Will I lose my licence immediately?
Usually yes. A BAC of 0.08 or more, or a refusal, results in an immediate 90-day suspension and 7-day vehicle impoundment under Ontario law, before any conviction. A conviction then brings a longer suspension.
Is a first impaired driving offence a criminal record?
Yes. A conviction for impaired driving, over 80 or refusal is a criminal conviction, with consequences for travel, employment and immigration status.
Can a lawyer get an impaired driving charge withdrawn or reduced?
It depends on the evidence. Charter breaches, problems with the demands or testing, disclosure issues and delay can lead to evidence being excluded, charges being withdrawn or stayed, or acquittals. No outcome can be guaranteed.
I am a permanent resident. Does this affect my status?
It can. Impaired driving is treated as serious criminality for immigration purposes. Get advice from a lawyer who considers both the criminal and immigration consequences before you make any decision about your case.
Sources
- Criminal Code, s. 320.14 (offences), Justice Laws Website
- Criminal Code, s. 320.19 (punishment), Justice Laws Website
- Criminal Code, s. 320.27 (roadside demands and mandatory alcohol screening), Justice Laws Website
- Government of Ontario, Impaired driving (penalties, including changes effective July 1, 2026)
- Department of Justice Canada, Frequently Asked Questions: Drug-Impaired Driving Laws
- R. v. Breault, 2023 SCC 9
- R. v. McColman, 2023 SCC 8
- R. v. Jordan, 2016 SCC 27
This article provides general information about Ontario and Canadian law as of the date above. It is not legal advice and does not create a lawyer-client relationship. Laws and court decisions change; speak with a lawyer about your specific circumstances.