Sometimes the Crown will accept a guilty plea to this offence under the Ontario Highway Traffic Act, instead of the Criminal Code of Canada offence of over 80 excess blood alcohol in circumstances where the Crown's case is uncertain, the blood alcohol concentration readings are in the 80 to 100 range, and the scientific reliability of the breath tests is uncertain. Innocence i.e. a true BAC below 80 is no longer a defence to a criminal over 80 charge unless the defence is able to challenge the scientific reliability of the breath test. A toxicological opinion that the drinking scenario should have resulted in a blood alcohol concentration below 80 might be interesting to your lawyer and lead to scientific inquiry as to the reason for the exaggerated or false positive, but it should have no probative value in Court.

Crowns in Ontario will sometimes ask for a provincial POA probation order that precludes or limits driving for an extended period of time when a lawyer negotiates a guilty plea to careless driving rather than over 80.