Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"

{{REVIEWED LSLAP | date= June 30, 2021}}

A) the officer must have an ASD in their possession when they ask the driver to provide the sample; and  

Before requiring the driver to provide a roadside breath sample into an ASD, the peace officer does not have to inform the driver of their ''Charter'' right, under s 10(b), to consult a lawyer. At this time, the driver does not have the right to speak to a lawyer before deciding whether to blow or refuse: the driver must decide right away. If the driver refuses, they will likely be issued a refusal to provide a breath sample under s 320.15(1) of the ''Motor Vehicle Act'' or under s 254(5) of the ''Criminal Code'' or an Immediate Roadside Prohibition (IRP).

**3-day driving prohibition if it is the first time caught in the warn range

**7-day driving prohibition if it is the second time caught in the warn range within five years; or

**30-day driving prohibition if it is the third time caught in the warn range within five years.

====a) Challenging Immediate Roadside Prohibition (issued for 3, 7, 30, or 90 days)====

A person may, within 7 days of being served with a notice of driving prohibition under section 215.41, apply to RoadSafetyBC for a review of the driving prohibition (''Motor Vehicle Act'' s 215.48(1)) by attending any driver licensing centre, and completing and submitting the form, “Immediate Roadside Prohibition – Application for Review – Section 215.48 ''Motor Vehicle Act''”. Fill in the blanks and check all relevant boxes that indicate the ‘grounds for review.’ The grounds for review are:

# Driving prohibition revoked: will be advised to reapply for driver’s license. The reinstatement fees and monetary penalties will be waived or refunded, however any outstanding debts owed to the province or ICBC must be paid.

# Driving prohibition confirmed: terms of driving prohibition will remain unchanged.  

It is highly recommended that individuals seeking to challenge an Immediate Roadside Prohibition be represented by a lawyer.

==== b) What Happens if you Lose the Hearing? ====

===2. 12 and 24-Hour Prohibitions===

Similar to the Immediate Roadside Prohibition describe above, for individuals wishing to challenge a 24-hour prohibition for '''alcohol''', there is an internal review process available through RoadSafetyBC pursuant to s 251.1 of the ''Motor Vehicle Act''. This must be done

within 7 days.

 

There is no internal review process for challenging a 24-hour prohibitions issued for '''drugs'''. The only way to challenge this is by way of judicial review in the BC Supreme Court: ''[http://canlii.ca/t/g6rqr Giorio v Wilson]'', 2014 BCSC 786 at para 3.

==D. Federal Alcohol and Drug Offences==

Section 320.14(1)(a) of the ''Criminal Code'' makes it an offence either to operate or to be in care or control of a motor vehicle while alcohol or drugs impair one’s ability to drive. Section 320.14(1)(b) makes it an offence to either operate or be in the care or control of a motor vehicle with a blood-alcohol concentration reading in excess of 80 milligrams of alcohol per 100 millilitres of blood. With a charge under s 320.14, the Crown must prove operation if operation is charged or prove care or control if care or control is charged. These are two separate and distinct offences and neither is included in the other: ''R v Henry'', (1971), 5 CCC (2d) 201 (BC Co Ct); ''[http://canlii.ca/t/gcqt9 R v James]'' (1974), 17 CCC (2d) 221 (BCSC); and ''[http://canlii.ca/t/g7hf3 R v Faer]'' (1975), 26 CCC (2d) 327 (Sask CA). Since it is difficult to conceive of a situation when driving is not also care or control, the Crown will almost always charge care or control.

A peace officer may demand a breath or blood sample pursuant to ''Criminal Code'' s 320.27 (1) if the peace officer has reasonable and probable grounds to suspect the individual has alcohol or a drug in their body and they have operated a conveyance in the preceding 3 hours. Refusal to comply with a demand for a sample is a criminal offence (s 320.15(1)). Since Bill C-46 was passed in 2018, an officer no longer needs reasonable grounds to suspect an individual has drugs or alcohol in their body as long as the individual is operating a vehicle and the officer has an approved screening device in their possession (''Criminal Code'' s 320.17 (2)).

Once a certificate has been prepared or the Crown has tendered ''vive voce'' evidence of the blood alcohol concentration, the Crown can rely on the presumption commonly known as the “presumption back” set out in ''Criminal Code'' s 320.31 (2). Under this section, where samples of breath are taken within two hours from the time the offence is alleged to have been committed, the concentration of alcohol in the blood reflected by those samples will be assumed to have been the concentration of alcohol in the blood at the time of the offence unless the accused raises evidence to the contrary (i.e. that they consumed more alcohol between being stopped and the time the sample was taken). S 320.31 (1) also sets out requirements for the operation of the testing device. If those requirements are met, then there is a presumption that the results of the test are accurate. The results of a blood sample are also presumed to be accurate unless there is evidence to the contrary (s 320.31 (2)).  

There are two ways that an officer can demand a sample: the first is a roadside mandatory demand, which requires that the officer have an approved screening device in their possession and does not require them to suspect the driver of having alcohol or drugs in their system (s 320.27(2)). The purpose of this test is for screening. An individual does not have the right to counsel before providing a roadside breath sample. The second type of demand under s 320.27(1) is both subjective and objective. The peace officer has to have reasonable grounds to suspect that the driver has alcohol or a drug in their body and that they operated a conveyance within the preceding 3 hours (based on ''Criminal Code'' s 320.27(1) and ''Charter'' s 8 (protection against unreasonable search and seizure) as interpreted in [http://canlii.ca/t/1frmf ''R. v. Bernshaw''], [1995] 1 S.C.R. 254.

In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private before providing the sample. This only applies when the driver is taken to the police station or medical facility for testing (not to roadside breathalyzer tests/mandatory demands). Where an accused chooses to exercise the right to retain counsel, the police officer must provide them with a reasonable opportunity to retain and instruct counsel, like by offering them a phone to use: ''[http://canlii.ca/t/22kmf R v Elgie]'' (1987), 48 MVR 103 (BCCA); ''[http://canlii.ca/t/1ftmx R v Manninen]'', [1987] 1 SCR 1233. If the police officer does not inform the driver of their right to retain and instruct counsel (''Charter'' s 10(b)), the breath or blood sample, if given, may be excluded from evidence if admitting it “would bring the administration of justice into disrepute” (''Charter'' s 24(2)).  

As with all ''Charter'' rights, the right to retain counsel is subject to reasonable limits prescribed by law and demonstrably justified in a free and democratic society: ''[http://canlii.ca/t/1l0b0 R v Orbanski and Elias]'', [2005] 2 SCR 3. The Court in ''[http://canlii.ca/t/1ftg5 R v Thomsen]'' (1988) 63 CR (3d) 1 held that “[w]hile a demand for a breath sample into a screening device constitutes a detention under s 10 of the ''Charter'', the suspension of the accused's ability to implement the right to retain and instruct counsel until arrival at the detachment for breath testing is a reasonable limitation on the exercise of that right”.

*A driver who has a combination of THC above 2.5 ng per mL of blood and a blood alcohol concentration of over 50 mg% of alcohol per 100 mL of blood is also considered impaired and risks facing a criminal conviction, a $1000 fine and a one-year driving prohibition.

*(i) for a first offence, a fine of $1,000,

*(ii)  for a second offence, a term of imprisonment for a term of 30 days, and

*(iii) for each subsequent offence, imprisonment for a term of 120 days.

==== 1. Provincial Driving Prohibitions for Criminal Convictions ====

* upon your 1st Conviction — not less than 1 year and not more than 3 years, plus the entirety of the period of time that the offender is imprisoned

* upon your 2nd Conviction — not less than 2 years and not more than 10 years, plus the entirety of the period of time that the offender is imprisoned

* upon your 3rd Conviction and any subsequent convictions after that — not less than 3 years, plus the entirety of the period of time that the offender is imprisoned (there is no maximum period)

==== 2. 90 Day Administrative Driving Prohibitions ====