Yes. In Canada, a driver can be charged with impaired driving even if their blood alcohol concentration (BAC) is below 0.08.
The Criminal Code creates separate offences for:
- operating a vehicle while impaired by alcohol or drugs; and
- having a BAC of at least 80 mg of alcohol per 100 mL of blood within two hours after driving.
For an impaired operation charge, the issue is whether alcohol, drugs, or a combination of both impaired the person’s ability to drive. The law does not require a BAC of 0.08 for this offence.
Police may consider the driver’s behaviour, driving pattern, physical condition, roadside testing, statements, and other evidence.
Provincial and territorial laws may also impose separate driving sanctions at BAC levels below 0.08.
What Does the 0.08 BAC Limit Mean in Canada?
A BAC of 0.08 means 80 milligrams of alcohol per 100 millilitres of blood.
Under section 320.14(1)(b) of the Criminal Code, having a BAC at or above this level within two hours after driving can constitute a criminal offence, subject to the exceptions in the law.
However, 0.08 should not be viewed as a level below which driving is automatically legal.
The Criminal Code separately prohibits driving while impaired to any degree by alcohol or drugs. A driver can therefore be below 0.08 and still face an impaired operation charge.
Is Being Below 0.08 Automatically Legal?
No.
A BAC below 0.08 may avoid the separate 80 mg offence, but police can still investigate whether the driver’s ability was impaired.
Provinces and territories may also impose administrative penalties at lower BAC levels.
How Can You Be Charged With Impaired Driving Below 0.08?
Impaired operation and having a BAC of 0.08 or higher are different offences.
Section 320.14(1)(a) focuses on whether a person’s ability to operate a vehicle was impaired by alcohol, drugs, or both. It does not set a minimum BAC.
For example, a driver who records a BAC of 0.07 could still be investigated if police observe evidence they believe indicates impaired driving.
Relevant evidence may include driving behaviour, coordination, speech, roadside testing, statements, or other observations.
A BAC below 0.08 does not automatically rule out impairment. It also does not automatically prove impairment. The Crown must prove the offence based on the evidence.
Impaired Operation vs. 80 mg or Over
Impaired operation focuses on whether alcohol or drugs affected the person’s ability to drive.
80 mg or over focuses on whether the driver’s BAC reached the level specified in the Criminal Code.
A driver may therefore face an impaired operation allegation even if their BAC was below 0.08.
What Evidence Can Police Use Below 0.08?
Police can rely on more than a breath test result.
Evidence may include:
- unsafe or unusual driving;
- difficulty following instructions;
- balance or coordination problems;
- unusual or slurred speech;
- smell of alcohol;
- behaviour or appearance;
- statements about alcohol or drug use;
- roadside test results;
- breath or bodily-sample results; and
- video or witness evidence.
No single observation necessarily proves impairment. Police observations must be considered with the rest of the evidence.
Can You Be Charged at 0.07, 0.06, or 0.05 BAC?
Potentially.
These readings are below the 0.08 threshold for the separate BAC offence, but impaired operation does not require a specific minimum BAC.
If police believe a driver’s ability was affected by alcohol or drugs, they may investigate impaired operation even at a lower BAC.
The Crown would still need to prove impairment.
Provincial or territorial sanctions may also apply below 0.08 depending on the driver’s location, age, licence class, or experience.
Can You Be Charged If Your BAC Is Below 0.05?
It is possible.
A low alcohol reading does not necessarily end an impaired driving investigation, particularly where drugs or medication may also be involved.
A driver could have a BAC below 0.05 while police investigate possible impairment caused by:
- alcohol;
- drugs; or
- a combination of alcohol and drugs.
The presence of a drug does not automatically prove impairment. The Crown must still establish that the person’s ability to drive was impaired.
Does Alcohol Tolerance Matter?
Having a high alcohol tolerance does not create an exemption from impaired driving laws.
Statements such as “I felt fine” or “I wasn’t drunk” do not determine whether a driver was legally impaired.
The issue is whether alcohol or drugs affected the person’s ability to operate the vehicle.
Is There a Safe Number of Drinks Before Driving?
There is no fixed number of drinks that guarantees a person will remain below a particular BAC or unaffected by alcohol.
BAC can vary based on factors such as body size, drinking pattern, food intake, medications, and the time between drinking and testing.
Personal estimates and BAC calculators cannot guarantee that someone is safe or legally permitted to drive.
What If Prescription Medication Contributed to Impairment?
Prescription medication can be relevant to an impaired driving charge.
The Criminal Code applies to impairment caused by drugs regardless of whether the drug was legally prescribed.
Some medications can affect alertness, reaction time, concentration, balance, or coordination. Combining medication with alcohol may increase those effects.
Having a valid prescription does not automatically prevent an impaired driving charge.
However, simply having medication in the body does not automatically prove impairment. The evidence must establish that the person’s ability to drive was affected.
Can Police Require a Breath Test If You Do Not Look Impaired?
Yes.
Canada’s mandatory alcohol screening rules allow police, in specified circumstances, to require a roadside breath sample from a driver who has been lawfully stopped even without first observing obvious signs of alcohol consumption.
Police do not necessarily need to observe slurred speech, poor coordination, or the smell of alcohol before making a mandatory alcohol screening demand.
The traffic stop itself must still be lawful.
What Is an Approved Screening Device?
An approved screening device is a roadside breath-testing device used to screen a driver for alcohol.
Depending on the result and circumstances, police may make further demands for breath, blood, or other testing where the legal requirements are met.
Does Passing a Roadside Breath Test End the Investigation?
Not always.
Police may still investigate suspected drug impairment or combined alcohol and drug impairment.
A breath test measures alcohol. It does not necessarily resolve whether another substance affected the driver’s ability to operate the vehicle.
What Happens After an Impaired Driving Investigation?
An impaired driving investigation may involve:
- roadside alcohol screening;
- physical coordination testing;
- drug screening;
- further breath or blood testing; and
- police observations and questioning.
The investigation may end without criminal charges, or police may proceed with an impaired driving allegation.
What Charges Could Be Laid?
Depending on the evidence, charges may include:
- impaired operation by alcohol;
- impaired operation by drugs;
- impairment caused by alcohol and drugs together; or
- having a BAC of 80 mg or more within two hours after driving.
Other offences may also arise depending on the incident.
What Happens If You Are Charged?
If criminal charges are laid, the accused will normally receive information about the allegation and the next stage of the court process.
Evidence may include police reports, video, witness statements, breath-test records, and testing information.
Being charged does not mean the person is guilty. The Crown must still prove the offence beyond a reasonable doubt.
Separate provincial or territorial licence sanctions may also apply.
Can an Impaired Driving Charge Under 0.08 Be Challenged?
Yes.
A defence lawyer may review whether the evidence actually proves impairment.
Relevant issues may include:
- the reason for the traffic stop;
- police observations;
- driving behaviour;
- roadside and breath-testing procedures;
- police video and notes;
- witness evidence;
- statements attributed to the driver;
- timing of alcohol or drug use;
- medical or other explanations for observed behaviour; and
- possible Charter issues.
Poor driving or unusual behaviour does not automatically prove alcohol or drug impairment.
Can a Low BAC Help the Defence?
A BAC below 0.08 may be relevant, but it does not automatically result in a charge being withdrawn or dismissed.
Its importance depends on the other evidence, including police observations, drug evidence, testing, and driving behaviour.
Each case must be assessed on its own facts.
Why BAC Is Only Part of an Impaired Driving Case
The Criminal Code treats impairment and the 80 mg BAC offence separately.
| Situation | General Significance |
| BAC of 0.08 or higher | May engage the Criminal Code BAC offence |
| BAC below 0.08 | Does not rule out an impaired operation allegation |
| Alcohol or drug impairment | Focuses on whether driving ability was impaired |
| Alcohol combined with drugs | Impairment can be investigated even with a BAC below 0.08 |
A breath result is therefore only one part of an impaired driving case.
Police observations, driving evidence, testing procedures, and other circumstances may also be relevant.
Frequently Asked Questions About Impaired Driving Under 0.08
Can You Get an Impaired Driving Charge If You Blow 0.07?
Yes, potentially. A BAC of 0.07 is below the threshold for the separate 80 mg offence, but police may still allege impaired operation if there is evidence the driver’s ability was impaired.
Is 0.08 the Legal Limit Everywhere in Canada?
The Criminal Code uses 80 mg of alcohol per 100 mL of blood for the federal BAC offence.
However, drivers can potentially face impaired operation charges below 0.08. Provinces and territories may also impose administrative penalties at lower levels.
Can Police Charge You With Impaired Driving Below 0.08?
Yes. An impaired operation charge does not require a BAC of 0.08 or higher.
The Crown must prove that alcohol, drugs, or both impaired the person’s ability to operate the vehicle.
Can You Be Charged Without Failing a Breath Test?
Yes.
Impaired driving can involve drugs or a combination of drugs and alcohol. An impairment-based charge does not depend solely on an alcohol breath-test result.
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