Impaired Driving: Difference between revisions

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [https://vancouvercriminallaw.com/criminal-lawyers-vancouver-richmond-surrey-victoria/paul-doroshenko/ Paul Doroshenko KC], Acumen Law Corporation|date= February 2019}} {{Dial-A-Law TOC|expanded = crime}}
'''Impaired driving''' is a serious offence with complex legal and technical issues, as well as significant penalties if you’re convicted. Learn what to expect if you’re charged with impaired driving.


{{Dial-A-Law TOC|expanded = autos}}
==What you should know==


==BC and Canada both have laws against drinking and driving==
===BC and Canada both have impaired driving laws===
Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html the BC law] applies. Sometimes, federal law ([https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth the ''Criminal Code'']) applies instead of — or in addition to — BC law.


<p>This script explains what can happen if you drink and drive. Both BC and the federal government have laws against drinking and driving. Usually, only the BC law applies. Sometimes, federal law applies instead of&mdash;or in addition to&mdash;BC law. Drinking and driving is a very complicated area of law with serious consequences.</p>
It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.


<p>It&rsquo;s not a crime to drive with some alcohol in your body, but it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol. The prohibited blood alcohol level for drivers starts at 0.05 in BC. The best action if you have been drinking is not to drive&mdash;take a taxi or bus or call a friend for a ride.</p>
This information focuses on drinking and driving.
{| class="wikitable"
|align="left"|'''Tip'''
In BC, if your blood-alcohol level is over .05, there are legal consequences. (This level means you have 50 milligrams of alcohol in 100 millilitres of blood.) If you have been drinking, don't drive — take a taxi or bus or call a friend for a ride.
|}


===1. If the police stop you, what tests must you take?===
===If you are stopped by the police===
If the police lawfully pull you over, they can require you to take the following tests. They can require these tests even if you aren’t driving but have '''care or control''' of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.


<p>If the police stop you while you are driving a vehicle, or while you have care or control of a vehicle even if you&rsquo;re not driving it, you must take the following tests. Care or control of a vehicle means you were in the driver&rsquo;s seat and had access to the ignition key, even if you were parked.</p>
====Police can require you to blow into a roadside screening device====
If the police lawfully stop you, they may demand you give a breath sample by blowing into a hand-held '''approved screening device''' (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.


====a. Blow into an approved roadside-screening device or ASD====
The screening device tests for alcohol in your breath. [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth Under BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A fail result means a blood-alcohol level over .08.
If the police reasonably suspect that you have alcohol in your body, they may legally require, or demand, that you immediately give a breath sample by blowing into a hand-held breathalyzer, called an Approved Screening Device or <strong>ASD</strong>. If the police don&rsquo;t do this right away, they may not be able to use your ASD results in a criminal trial (section 3 discusses criminal charges below). But a delay in requiring you to blow into an ASD does not affect a Warn or Fail reading on the ASD, which may lead to an immediate roadside prohibition, or <strong>IRP </strong>(section 2 discusses IRPs below). The police can use your ASD results to issue an IRP or to hold you for further investigation.


<p>Police can do the ASD test before you speak to a lawyer—contrary to Charter section 10(b)—because under section 1 of the Charter, it’s a reasonable limit prescribed by law. In other words, you don’t have the right to speak to a lawyer before you decide whether to blow or refuse—you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the ASD can lead to an IRP or a criminal charge.</p>
If the screening device shows a warn result, the police will probably give you an '''immediate roadside prohibition'''. (We explain these below, under “Common questions”.)


<p><strong>ASD settings account for some inaccuracy</strong>&mdash;the ASD tests for alcohol in your breath. The model currently used in BC shows the estimated blood-alcohol concentration figure when the sample has under 60 milligrams in 100 milliliters of blood. It shows &rdquo;Warn&rdquo; for blood-alcohol levels between 60 and 100 milligrams of alcohol in 100 milliliters of blood (the legal range for Warn is 50 to 80). And it shows &ldquo;Fail&rdquo; for 100 milligrams or higher (the legal limit for Fail is 80). In other words, the ASD allows more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the ASD’s margin of error.</p>
If the screening device shows a fail, the police may give you an immediate roadside prohibition or they may demand you take a '''breathalyzer test''' as part of a criminal investigation.


<p>The legal limit under the <em>Criminal Code</em> is 80 milligrams, called .08. The legal limit under the BC <em>Motor Vehicle Act</em> is 50 milligrams, called .05. But if the ASD shows a blood-alcohol concentration below 60 (rather than 50), the police will probably let you leave. If the ASD shows Warn, the police will probably give you an IRP. If the ASD shows Fail, the police may give you an IRP. Or they demand you take an evidentiary breathalyzer test as part of a criminal investigation. The police do not have to show you the ASD results. </p>
You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge. It is highly advisable to make your best attempt to blow.


====b. Take an evidentiary breathalyzer test====
{| class="wikitable"
An evidentiary breathalyzer is an instrument that measures the alcohol in your breath to see if you have more than the legal limit of .08. In Canadian law, it is called an <strong>Approved Instrument</strong>. The next page explains how it works.
|align="left"|'''Tip'''
Under the law, a '''warn''' result means a blood-alcohol level over .05. A '''fail''' result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.
|}
====Police can require you to take a breathalyzer test====
[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.28_smooth Under the ''Criminal Code''], the police may demand you take a '''breathalyzer test''' if they have reasonable and probable grounds to believe you are committing the offence of impaired driving or have a blood alcohol level at or over .08 within two hours after driving. The police may use a fail reading from a roadside screening test to form their grounds to demand a breathalyzer test.


<p>The police may demand you take an evidentiary breathalyzer test using an Approved Instrument only if they have reasonable and probable grounds to believe that you are:</p>
===If the police demand you take a breathalyzer test=== 
A '''breathalyzer''' is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are '''at or over .08'''. [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth This amount is the legal limit under the ''Criminal Code''].


<ul>
If the police demand you take a breathalyzer test, you must go with the police to where the breathalyzer instrument is located (usually, the local police station). As well, you must give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.
<li>operating a vehicle, or have care or control of it, while your ability is impaired by alcohol, or</li>
<li>committing, or have committed in the previous 3 hours, the offence of alcohol impaired driving.</li>
</ul>


<p>This means the police must have good reason to believe your ability to drive is impaired by alcohol. The police may use a Fail on the ASD to form reasonable and probable grounds to demand an evidentiary breathalyzer test. If the police make this demand, you must:</p>
====Your rights when detained====
When police make this demand, you are legally held, or '''detained'''. The police must tell you of your '''right to a lawyer''' and your '''other rights under the ''Charter of Rights and Freedoms''''' before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.


<ul>
If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.
<li>go with the police to where the Approved Instrument is located (usually, the local police station), and</li>
<li>give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.</li>
</ul>


Because you are legally held, or detained, the police must tell you of your right to a lawyer&mdash;and other <em>Charter</em> rights&mdash;before you provide breath samples. They must also give you a chance to contact a lawyer you choose&mdash;a private lawyer or a Legal Aid Duty Counsel&mdash;before you give breath samples. The police must stop trying to get samples or other evidence from you until you have had the chance to talk with a lawyer in private. For more on <em>Charter</em> rights, check scripts [[Charter of Rights and Freedoms: Legal Rights (Script 200)|200]] and [[Charter of Rights and Freedoms: Overview (Script 230)|230]].
If you are unconscious, you can’t agree to give a sample. The police must get a '''warrant''' to take samples, which they can get by phoning a judicial justice or judge.


<p>If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.</p>
====You have the right to remain silent====
You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.


<p>If you are unconscious, you can&rsquo;t agree to give a sample. So the police must get a warrant to take samples, which they can get by phoning a Judicial Justice or Judge.</p>
===If you refuse to blow (give a breath or blood sample)===
If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a '''reasonable excuse''' not to. If you refuse to do them, you are committing an offence.


====Things you don&rsquo;t have to do and should probably never do====
Generally, it is best to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. Making genuine attempts to blow that do not work is not an offence.
You don&rsquo;t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. Later, at your trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.


====Summary of what you must do====
Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse a breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or '''exercise''', those rights and speak to a lawyer.
If the police demand it, you must:


<ol type="a">
The legal issues are complex and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.
<li>blow into an ASD.</li>
<li>go with the police and take an evidentiary breathalyzer test.</li>
</ol>


<p>You must do these things unless you have a reasonable excuse not to. If you refuse to do them, you are committing an offence. You also do not have the right to give breath or blood samples instead of blowing into an ASD.</p>
===If you are charged with a criminal offence===
Police can charge you with [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec320.14_smooth any of three impaired driving-related offences under the ''Criminal Code'']:


====What is a reasonable excuse to refuse to blow into an ASD, or give breath or blood samples?====
* '''impaired driving''' (driving while your ability to operate a vehicle is impaired by alcohol or a drug)
Generally, it is better to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. And making genuine attempts to blow that do not work is not an offence.<strong> </strong>Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse an evidentiary breathalyzer demand if the police don&rsquo;t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the <em>Charter</em>, you must say you want to use, or exercise, those rights and speak to a lawyer. The legal issues are complicated and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer&rsquo;s advice.
* having a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after driving ('''at or over .08''')
* failing or refusing to provide breath or blood samples on demand ('''refusing to blow''')


====How does an Approved Instrument (an evidentiary breathalyzer) work?====
These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. The charges can apply even if you weren’t driving and didn’t move the vehicle — as long as you had '''care or control''' of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.
The Approved Instrument most commonly used in BC is an evidentiary breathalyzer. The procedures for using Approved Instruments are designed to obtain scientifically and legally valid breath tests. Approved Instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood alcohol concentration to be used as evidence in court. In BC, Approved Instruments are usually located only in designated rooms in police stations.


<p>An Approved Instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the concentration of alcohol in your breath. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. If you have over 80 milligrams (called &ldquo;over .08&rdquo;) you are legally too drunk to drive, and can be convicted of a criminal offence.</p>
If your breathalyzer results were at or over .08, you will typically be charged with being at or over .08 within two hours of driving. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.


<p>The technician who operates the Approved Instrument will ask you to breathe deeply into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a Certificate of Qualified Technician Who Took Breath Samples, describing the test results. Keep this document in its original condition. Don&rsquo;t write on it or damage it. Just give it to your lawyer.</p>
====Driving prohibition====
If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a '''24-hour roadside prohibition'''. This takes effect immediately. They also typically issue a '''90-day administrative driving prohibition'''. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)


===2. What can happen under BC law if you drink and drive?===
====Going to court====
If you are charged with any of the three ''Criminal Code'' offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex technical and legal issues, it is highly advisable to get help from a lawyer. We suggest options shortly for finding a lawyer.


====a. An <em>Immediate Roadside Prohibition</em> (IRP)====
===If you fight the criminal charges in court===
You may be prohibited from driving and lose your vehicle immediately&mdash;under [http://www.bclaws.ca/civix/document/id/complete/statreg/96318_07 section 215] of the BC <em>[http://www.bclaws.ca/civix/document/id/complete/statreg/96318_00 Motor Vehicle Act]</em> (available at [http://www.bclaws.ca www.bclaws.ca]). This can happen if you blow into an ASD and it shows a prohibited level of alcohol in your breath (a <strong>Warn</strong> or <strong>Fail</strong>, shown in the table below). In that case, the police will issue an <strong>IRP</strong>.
In responding to impaired driving-related charges under the Criminal Code, you must decide how to '''plead'''. [[Pleading Guilty to a Criminal Charge|Pleading guilty means you accept responsibility for the offence]]. Pleading “not guilty” means the court will set a '''trial'''.


<p><strong>How long do you lose your license and vehicle under an IRP</strong>&mdash;it depends on the ASD reading, as this table shows. If you are in the Warn range, then it will depend on your driving record, as the table also shows. You must also pay penalties and fees and participate in the Responsible Driver Program course and Ignition Interlock Program.</p>
At the trial, the prosecutor must prove beyond a reasonable doubt that you committed the offence.


<table border="1" cellpadding="0" cellspacing="0">
For '''impaired driving''', the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.
<tr>
<td height="25" valign="top" width="328">
<p><strong>&nbsp;&nbsp; If your blood alcohol concentration (BAC) is</strong></p>
</td>
<td valign="top" width="344">
<p><strong>&nbsp;&nbsp; This is what happens</strong></p>
</td>
</tr>
<tr>
<td valign="top" width="328">
<p>&nbsp;&nbsp; 0.05 to 0.08 (a <strong>Warn</strong>) &ndash; 1st offence (although the Warn range is .05 to .08, the ASD is set to give a Warn only from .06 to .10. Under .06, the ASD will show the numeric value. So if the ASD shows .055, the police should not issue an IRP&mdash;see section 1(a) for more on this.)</p>
</td>
<td valign="top" width="344">
<ul>
<li>3-day driving prohibition</li>
<li>3-day impoundment of vehicle</li>
<li>Impound and towing fees about $150</li>
<li>$200 penalty</li>
<li>$250 license reinstatement fee</li>
<li>Responsible Driver Program (depending on driving record)</li>
<li>Ignition Interlock Program (depending on driving record)</li>


</ul>
For '''at or over .08''', the prosecutor must prove your blood-alcohol concentration was at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after you drove. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.
</td>
</tr>
<tr>
<td valign="top" width="328">
<p>&nbsp;&nbsp; 0.05 to 0.08 (a <strong>Warn</strong>) &ndash; 2nd offense, within 5 years</p>
</td>
<td valign="top" width="344">
<ul>
<li>7-day driving prohibition</li>
<li>7-day impoundment of vehicle</li>
<li>Impound and towing fees about $230</li>
<li>$300 penalty</li>
<li>$250 license reinstatement fee</li>
<li>Responsible Driver Program (depending on driving record)</li>
<li>Ignition Interlock Program (depending on driving record)</li>
</ul>
</td>
</tr>
<tr>
<td valign="top" width="328">
<p>&nbsp;&nbsp; 0.05 to 0.08 (a&nbsp;<strong>Warn</strong>) &ndash; 3rd offence, within 5 years</p>
</td>
<td valign="top" width="344">
<ul>
<li>30-day driving prohibition</li>
<li>30-day impoundment of vehicle</li>
<li>Impound and towing fees about $680</li>
<li>$400 penalty</li>
<li>$250 license reinstatement fee</li>
<li>Responsible Driver Program (depending on driving record)</li>
<li>Ignition Interlock Program (depending on driving record)</li>
</ul>
</td>
</tr>
<tr>
<td valign="top" width="328">
<p>&nbsp;&nbsp; Over 0.08 (a&nbsp;<strong>Fail</strong>) or refusal, or fail to provide a breath sample (although a Fail starts at over .08, the ASD is set to give a Fail only at .10 and higher - see section 1(a) for more on this).</p>
</td>
<td valign="top" width="344">
<ul>
<li>90-day driving prohibition</li>
<li>30-day impoundment of vehicle</li>
<li>Impound and towing fees about $700</li>
<li>$500 penalty</li>
<li>$250 license reinstatement fee</li>
<li>Responsible Driver Program (depending on driving record)</li>
<li>Ignition Interlock Program (depending on driving record)</li>
</ul>
</td>
</tr>
</table>


<p><br />
For '''failing to blow''', the prosecutor must prove you failed to give samples — without a reasonable excuse.
An ignition interlock device requires drivers to provide a breath sample before they can start the vehicle. It also requires them to periodically give more breath samples during longer trips (about 10 to 12 samples a day). The BC government estimates costs to a driver that include fees to enroll in the program, install the device in their vehicle, have monthly monitoring, and remove the device from their vehicle.</p>


<p><strong>Process the police must follow to issue an IRP</strong>&mdash;the police must require you to provide a breath sample by blowing into an ASD. If you refuse to blow or do not provide a sample that is suitable for the ASD, the officer must issue a 90-day IRP, the same as if you blew and showed a Fail. If the ASD shows a Warn, the officer must review your driving record and issue the appropriate IRP, as the table above shows. If the ASD shows a Fail, the officer must issue a 90-day IRP. When you blow, the officer must tell you that you have a right to blow again into a different ASD. You get the benefit of the lower of the 2 readings and the police have to tell you this.</p>
The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.


<p>The officer must make a properly sworn report (a report that they swear is true) to the Superintendent for every IRP they issue. They also have to submit a Certificate of Qualified ASD Calibrator showing when the ASD was last calibrated (checked for accuracy), when the calibration expires, and when the ASD is next due for annual service.</p>
You have the right to '''testify''' (tell the court your story). You don’t have to. But you may want to if you can counter what the witnesses said and raise a reasonable doubt as to whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you ideally make with the help of a lawyer.


<p><strong>Review process to contest an IRP</strong>&mdash;if the police give you an IRP, you can apply for a review by going to ICBC Driver Services and paying the required fee within 7 days of when the police give you the Notice of Prohibition. The review hearing is held before an adjudicator in the Office of the Superintendent of Motor Vehicles. This office is also called the OSMV and RoadSafetyBC.</p>
===If you are convicted of criminal charges===
For a first offence of at or over .08 or impaired driving, the '''mandatory minimum sentence''' is a $1,000 fine and a driving prohibition of at least one year and up to three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. For a first offence of refusing to blow, the mandatory minimum sentence is a $2,000 fine and a driving prohibition of at least one year and up to three years. Any conviction under these sections of the ''Criminal Code'' means you get a '''criminal record'''. A judge cannot give you a discharge.


<p>You should see a lawyer before applying for a review. Many defences to IRPs are not written in the <em>Motor Vehicle Act</em> or described in ICBC or RoadSafetyBC documents.</p>
Previous drinking and driving convictions mean higher penalties — usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between three and five years for a second conviction and a lifetime prohibition for a third or later conviction.


<p>The Driver Services Application for Review allows a review in any of the following cases:</p>
====If there was an accident====
If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or at or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.


<ul>
====Insurance premiums====
<li>You were not the driver or did not have care or control of the vehicle.</li>
An impaired driving-related conviction under the Criminal Code means you will pay more in vehicle insurance premiums, under an ICBC program called '''driver risk premiums'''. This program applies to more serious driving offences. For more, [[The Points System and ICBC|see our information on the points system and ICBC]].
<li>The police did not give you a breath test but you asked for one.</li>
<li>The police didn&rsquo;t tell you of your right to a second test on an ASD.</li>
<li>You asked for a second test but the police didn&rsquo;t do one.</li>
<li>The police didn&rsquo;t use a different ASD to do the second test.</li>
<li>The IRP was not based on the lowest reading.</li>
<li>The ASD test results were not reliable.</li>
<li>The ASD did not register a <strong>warn</strong> reading.</li>
<li>The ASD registered a <strong>warn</strong>, but your blood alcohol content was less than 0.05.</li>
<li>The ASD did not register a <strong>fail</strong> reading.</li>
<li>The ASD registered a <strong>fail</strong>, but your blood alcohol content was less than 0.08.</li>
<li>Your 7- or 30-day prohibition should be reduced because you did not have the required number of previous IRPs to justify it.</li>
<li>You did not refuse or fail to comply with a demand to provide a breath sample, or you had a reasonable excuse for refusing or failing to comply with a demand.</li>
</ul>


<p>For 3- and 7-day IRPs, only written reviews are available. For 30- and 90-day IRPs, you can choose a written or an oral review. It costs $100 for a written review and $200 for an oral review. You cannot drive while you wait for the review because the driving prohibition is in place then.</p>
====Criminal record====
A conviction under the ''Criminal Code'' stays on your criminal record and driving record forever. After some time, you can usually [https://dialalaw.peopleslawschool.ca/criminal-records-and-record-suspensions/ ask for a record suspension], which limits access to your criminal record, but even that won’t erase the conviction from your record.


<p>All IRPs are listed on your driving record unless they are revoked (cancelled) on review. Driving prohibitions are not removed from your driving record after 5 years. It is very important to quickly investigate the steps you can take to challenge your IRP so that you can meet the 7-day deadline to file for a review. Over 20% of IRPs are revoked on review.</p>
==Common questions==


<p><strong>An IRP is not a criminal conviction</strong>&mdash;it does not give you a criminal record. But you could be charged with a criminal offence from the same police investigation. An IRP goes on your driving record, as do tickets, other driving prohibitions, and other driving offences. ICBC keeps a record of your entire driving history. But it issues only a 5-year driving record. You can get a copy of it, called a [http://www.icbc.com/driver-licensing/getting-licensed/pages/your-driving-record.aspx driver's abstract], from ICBC.</p>
===Can the police prohibit me from driving based on my roadside screening test results?===
Yes. Police can issue an '''immediate roadside prohibition''' if your breath sample on a roadside screening device shows a warn or fail result, and police have reasonable grounds to believe your ability to drive is affected by alcohol.


<p>If you are charged with a criminal driving offence, or a serious offence under the <em>Motor Vehicle Act</em>, ICBC will give your entire driving history to the police or prosecutor. And <em>Criminal Code</em> convictions remain on your driving record even if you get a pardon.&amp;</p>
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.41_smooth Under BC law], a '''warn''' result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A '''fail''' result means a blood-alcohol level over .08.


<p><strong>Effect of IRP on travel to the United States</strong>&mdash;although an IRP is not a criminal conviction, US border officials could see it as evidence of discreditable conduct. And they can refuse entry to the US to foreigners without any reason. But there are no reported cases of a person being refused entry to the US only because of an IRP.</p>
If you get a '''warn''' result, the driving prohibition police can issue will vary depending on whether you have previous roadside prohibitions. If it is your first prohibition, you’ll get a '''3-day driving prohibition'''. You’ll get a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.


====b. 24-hour driving prohibition and vehicle impoundment====
If you get a '''fail''' result, the driving prohibition police can issue will be for '''90 days'''.
Instead of issuing an IRP, police can prohibit you from driving for 24 hours and impound your vehicle if they have reasonable and probable grounds to believe your ability to operate a vehicle is affected by alcohol, drugs, or both. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on an ASD. But police can use the ASD results to issue an IRP or to hold you for a criminal investigation.


<p>This prohibition goes on your driving record. You cannot appeal the impoundment. But you can ask for a review to have the driving prohibition removed from your driving record in 2 cases: if the police failed to do a breath test when you asked or you were not the driver or did not have care or control of the vehicle. You have 7 days from the prohibition to apply for the review. The Superintendent cannot review a 24-hour prohibition for drug impairment. The only possible review of that is by a petition to BC Supreme Court.</p>
If police give you an immediate roadside prohibition, they will also '''impound''' your vehicle (have it towed). You will be required to pay for the towing and storage. You must also pay penalties and fees, and participate in driver safety programs. As well, your vehicle insurance premiums may increase.


<p><strong>24-hour driving prohibition is not a criminal conviction</strong>&mdash;it does not give you a criminal record. But you could be charged with a criminal offence from the same police investigation. A 24-hour prohibition goes on your driving record, as do tickets, other driving prohibitions, and other driving offences. ICBC keeps a record of your entire driving history. But it issues only a 5-year driving record. You can get a copy of it, called a [http://www.icbc.com/driver-licensing/getting-licensed/pages/your-driving-record.aspx driver's abstract], from ICBC.</p>
{| class="wikitable"
|align="left"|'''Tip'''
[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215.42_smooth Under BC law], if your breath sample on a roadside screening device shows a warn or fail result, you have the right to request a second test using a different roadside screening device. You get the benefit of the lower of the two readings. The police have to inform you of this right before giving you a driving prohibition.
|}
===Can the police prohibit me from driving even if they don’t give me a breath test?===
Yes. [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215_smooth Under BC’s driving laws], police can issue a '''24-hour roadside prohibition''' if they have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on a roadside screening device. But if you get a warn or fail result on the screening device, police can use it to issue an immediate roadside prohibition or to hold you for a criminal investigation.


<p>If you are charged with a criminal driving offence, or a serious offence under the <em>Motor Vehicle Act</em>, ICBC will give your entire driving history to the police or prosecutor. And <em>Criminal Code</em> convictions remain on your driving record even if you get a pardon.</p>
===Can I challenge a driving prohibition issued by the police?===
Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask RoadSafetyBC for a '''review''' of a driving prohibition. You must apply '''within seven days''' of when you get the notice of prohibition.


<p><strong>Effect of 24-hour driving prohibition on travel to the United States</strong>&mdash;although a 24-hour prohibition is not a criminal conviction, US border officials could see it as evidence of discreditable conduct. And they can refuse entry to the US to foreigners without any reason. But there are no reported cases of a person being refused entry to the US only because of a 24-hour driving prohibition.</p>
To ask for the review, [https://www.icbc.com/locators/Pages/default.aspx you can fill in an application form available at any ICBC driver licensing office] or [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/roadsafetybc/prohibitions/apply-online apply online]. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews The grounds to dispute the prohibition vary depending on the type of prohibition]. The possible defences are not limited to the grounds to dispute. An expert on police procedure may be available through a lawyer to provide evidence in your case. Close to a quarter of immediate roadside prohibitions are '''revoked''' (cancelled) on review.


====c. Different rules for new drivers====
During the review process, you are still prohibited from driving.
In BC&rsquo;s graduated licensing program, new drivers (both Learners and Novices) get a 12-hour suspension if a breath test with an ASD shows that they have any alcohol in their body&mdash;or if they refuse to blow. They also have to start their stage (12-month L or 24-month N) over again. There is no review of this suspension. And if they are over 0.05, they face the same, more serious results as other drivers, not just a 12-hour suspension. Plus they must start their stage over again.


====d. Responsible Driver Program course and Ignition Interlock Program referrals====
===Are the rules different for new drivers?===
The BC government refers drivers to these 2 programs if any of the following 3 situations apply to them (these are separate from the IRP requirements for the 2 programs&mdash;see the table in section 2(a) above):</p>
A new driver participating in BC’s graduated licensing program (a learner or novice driver) can be given a '''12-hour roadside suspension of their driver’s licence''' if a breath test on an approved screening device shows they have any alcohol in their body. There is no review available of this suspension.


<ul>
As well, they have to start their current stage of the licensing program over again (for example, novice drivers will start over at the beginning of their 24-month N licensing period).
<li>They have a criminal conviction for drinking and driving&mdash;see section 3 below, on the <em>Criminal Code</em>.</li>
<li>They have had three 24-hour roadside suspensions in 5 years&mdash;see section 2(b) above.</li>
<li>They have received a 90-day Administrative Driving Prohibition (<strong>ADP</strong>)&mdash;see section 3 below, on the <em>Criminal Code</em>.</li>
</ul>


====e. Higher insurance costs====
If a new driver gets a result over .05 on a screening device, they also face the regular consequences fully-licensed drivers face.
Prohibitions and convictions under the BC <em>Motor Vehicle Act</em> mean you have much higher vehicle insurance costs. [http://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx ICBC] has more on this.  


====f. Driver’s license points and penalties====
===How does a breathalyzer instrument work?===
You get points against your driver’s license, as this [http://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/mandatory-matrix.pdf chart] shows. And those points cost you a lot of money, called the driver penalty point premium, as this [http://www.icbc.com/driver-licensing/tickets/Pages/Driver-Penalty-Points.aspx chart] shows. Also check script 187, called “The Points System and ICBC”.
'''Breathalyzer instruments''' are designed to obtain scientifically and legally valid breath tests. Approved breathalyzer instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood-alcohol concentration. The printout can be used as evidence in court. In BC, breathalyzer instruments are usually located only in designated rooms in police stations.


===3. What can happen under the Canadian <em>Criminal Code</em> if you drink and drive?===
A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the '''concentration of alcohol in your breath'''. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of at or over 80 milligrams (called “at or over .08”) means you can be convicted of a criminal offence for having a prohibited blood-alcohol content within two hours after driving.


<p>If the police do not issue an IRP under the BC <em>Motor Vehicle Act</em>, they may charge you with any of the following 3 serious criminal charges under the <em>[http://laws-lois.justice.gc.ca/eng/acts/C-46/index.html Criminal Code]</em>of Canada:</p>
The technician who operates the approved instrument will ask you to blow into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a '''certificate''' describing the test results. Keep this document in its original condition. Don’t write on it or damage it.


<ul>
===What if I lend my car to someone who drinks and drives?===
<li>impaired driving (caused by alcohol or drugs&mdash;both legal prescription drugs and illegal ones).</li>
Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other consequences apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.
<li>driving with a blood-alcohol concentration over 80 milligrams in 100 milliliters of your blood (called &ldquo;over .08&rdquo;).</li>
<li>failing or refusing to provide breath or blood samples on demand (called &ldquo;refusal&rdquo; or &ldquo;refusing to blow&rdquo;).</li>
</ul>


<p>These charges apply if you&rsquo;re driving a car, boat, plane, or other motor vehicle or vessel. They can apply even if you weren&rsquo;t driving and didn&rsquo;t move the vehicle&mdash;as long as you had care or control of it. Care or control of a vehicle means you were in the driver&rsquo;s seat and had access to the ignition key, even if you were parked.</p>
==Who can help==


====If your test results are over .08 or you refuse to blow====
===Finding a lawyer===
<strong>Criminal charges</strong>&mdash;if your results are over .08, you will normally be charged under the <em>Criminal Code</em> with over .08<em>.</em> If you fail to give a breath or blood sample, you will be charged with refusing to blow<em>.</em> In either case, you will also normally be charged with impaired driving&mdash;a criminal offence.
The legal issues for impaired driving can be complex and a conviction can seriously harm you. There are lawyers who specialize in drinking and driving cases. You can call the '''Lawyer Referral Service''' to get the name of a lawyer. You can speak to the lawyer for a free half-hour legal consultation about your case, to help decide whether you would want to hire them.


<p><strong>Two driving prohibitions</strong>&mdash;the investigating police officer will issue you:</p>
* Call 604-687-3221 (Greater Vancouver) or 1-800-663-1919 (toll-free)
* [http://www.accessprobono.ca/lawyer-referral-service Visit website]


<ul>
You can contact '''Legal Aid BC''' to find out if you qualify for a free lawyer under legal aid.
<li><strong>an immediate 24-hour driving prohibition</strong>. The officer may also impound your vehicle.</li>
<li><strong>a 90-day Administrative Driving Prohibition</strong> (<strong>ADP</strong>). This driving prohibition starts 21 days after the police give you a copy of the Notice of Prohibition. The ADP is separate from any <em>Criminal Code</em> penalties and procedure. The ADP Notice of Prohibition is your temporary license until the ADP starts&mdash;21 days after the Notice is served on you. You have 7 days to ask for a review of an ADP, by applying for a review at ICBC Driver Services. An oral review costs $200 and a written review costs $100. An adjudicator at the Office of the Superintendent of Motor Vehicles hears your review and decides whether to confirm or cancel the ADP.</li>
</ul>


<p>There are many technical defences to ADPs. As well, the Application for Review says you can apply for a review if you:</p>
* Call 604-408-2172 (Greater Vancouver) or 1-866-577-2525 (toll-free)
* [https://lss.bc.ca/legal_aid/criminalLaw.php Visit website]


<ul>
If you can’t afford to hire a lawyer and you don’t qualify for legal aid, try to talk with a lawyer before deciding how to respond to any charge against you. On your first appearance in court or when you enter your plea, you can talk to '''duty counsel''' at the courthouse. These are lawyers who give free legal advice to people who have a case in the courthouse on that day.
<li>were not operating or did not have care or control of a motor vehicle,</li>
<li>did not have a blood alcohol level over .08 within 3 hours of driving,</li>
<li>did not fail or refuse to provide a breath sample, or</li>
<li>had a reasonable excuse for failing to comply with a demand for a breath or blood alcohol test.</li>
</ul>


<p>If you apply for a review of the ADP, the driving prohibition doesn&rsquo;t start until the review decision is made. But most decisions are made before the 21-day waiting period ends.</p>
*[https://lss.bc.ca/legal_aid/criminalAndImmigrationDutyCounsel.php Visit website]


====What happens in court?====
===With more information===  
If you are charged with any of the 3 <em>Criminal Code</em> offences, you or your agent will have to go to court. There are legal defences to the 3 charges, but they are very technical and you need legal advice. You should get at least some initial advice from a lawyer, even if you decide not to have one in court.
The '''BC government''' website includes information on driving prohibitions, suspensions, and impaired driving.


<p>The prosecutor must prove beyond a reasonable doubt that you committed the offence. For impaireddriving, the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.</p>
* Visit website


<p>For over .08<em>,</em> the prosecutor must prove your blood-alcohol concentration was over 80 milligrams. The prosecutor must show that the evidence of your blood-alcohol concentration was legally obtained. If you want to argue that your Charter rights were violated, you must prove it to the court.</p>
'''ICBC''' has information on the driver risk premium.
 
<p>For failing to blow, the prosecutor must prove that you failed to give samples&mdash;without a reasonable excuse.</p>
 
<p>The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses would tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.</p>
 
<p>You have the right to testify (tell the court your side) and you may want to, if you can explain what the witnesses said and raise a reasonable doubt whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you normally make with your lawyer.</p>
 
====What are the penalties under the ''Criminal Code''====
For a first offence of over.08, impaired driving, or refusing to blow, the mandatory minimum sentence is a $1000 fine and a driving prohibition between 1 and 3 years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. This minimum sentence means you get a criminal record. A judge cannot give you a discharge.
 
<p>Previous drinking and driving convictions mean higher penalties&mdash;usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, in BC, driving prohibitions are longer: between 3 and 5 years for a second conviction and a lifetime prohibition for a third or later conviction. If you have an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone by drinking and driving, you risk being sued for a lot of money and your insurance company will not cover you. The penalty for killing someone while impaired or over .08 is always a jail term. It&rsquo;s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.</p>
 
<p>Convictions for criminal driving offences stay on your driving record forever, even if you eventually get a pardon for the offence. ADP driving prohibitions remain on your driving record unless the prohibition is revoked when you apply for review.</p>
 
<p>Convictions under the <em>Criminal Code</em> also mean you have much higher vehicle insurance costs. The website of the Insurance Corporation of BC (ICBC) has more on this at [http://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx]. And you may be refused entry to the US.</p>
 
===4. If you are facing a drinking and driving case===
 
<p>Drinking and driving law is one of the most complex areas of the law because the cases involve law, science, alcohol-testing equipment, and public policy. More people are found not guilty of drinking and driving offences in Canada than of any other type of criminal charges. This means that more innocent people are charged with drinking and driving offences than with other offences.</p>
 
<p>The police and prosecution must follow demanding procedures. Police officers have extensive training in doing drinking and driving investigations. If they do not follow the procedure correctly or if they violate your rights, you may be not guilty.</p>
 
<p>All driving prohibitions in BC are 24-hours-a-day until they expire. You cannot get a driver&rsquo;s license only for work. You cannot get a license that will let you drive for any purpose if you are prohibited from driving due to a drinking and driving offence. The ignition interlock requirement after the prohibition ends restricts you from driving any vehicle that doesn&rsquo;t have a functioning interlock installed.</p>
 
<p>You should use your right to contact a lawyer and get legal advice right away if you have a drinking and driving case. Legal advice is crucial in these cases.</p>
 
==More information from the BC government==
 
<ul>
<li>[http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/drug-alcohol Ministry of Justice information on driving while affected by drugs or alcohol]</li>
 
<li>[http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/prohibitions-and-suspensions/alcohol-and-drug-related-suspensions#irp Fact sheet on IRPs] </li>
 
<li>[http://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/immediate-roadside-prohibition-penalties.pdf Fact sheet on IRP penalties]</li>
 
<li>[http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews Disputes, Appeals and Reviews]</li>
 
<li>[http://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/irp-review-guide.pdf Application guide for IRP review] </li>
 
<li>[http://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/factsheet-24hour-prohibition.pdf Fact sheet on 24-hour prohibitions]</li>
 
<li>[http://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/factsheet-admin-driving-prohibition.pdf Fact sheet on ADPs]</li>
 
<li>[http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-remedial-programs/responsible-driver-program Responsible Driver Program]</li>
 
<li>[http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-remedial-programs/ignition-interlock-program Ignition Interlock Program]</li>
 
<li>[http://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx ICBC information on insurance costs and drinking and driving convictions]</li>
 
</ul>
 
''The above was last reviewed for accuracy by Paul Doroshenko and edited by John Blois.''
 
[updated May 2016]
 
 
----
----


* Call 1-800-663-3051 (toll-free)
* [https://www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx Visit website]


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Latest revision as of 18:59, 25 September 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Paul Doroshenko KC, Acumen Law Corporation in February 2019.
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Impaired driving is a serious offence with complex legal and technical issues, as well as significant penalties if you’re convicted. Learn what to expect if you’re charged with impaired driving.

What you should know

BC and Canada both have impaired driving laws

Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only the BC law applies. Sometimes, federal law (the Criminal Code) applies instead of — or in addition to — BC law.

It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.

This information focuses on drinking and driving.

Tip

In BC, if your blood-alcohol level is over .05, there are legal consequences. (This level means you have 50 milligrams of alcohol in 100 millilitres of blood.) If you have been drinking, don't drive — take a taxi or bus or call a friend for a ride.

If you are stopped by the police

If the police lawfully pull you over, they can require you to take the following tests. They can require these tests even if you aren’t driving but have care or control of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

Police can require you to blow into a roadside screening device

If the police lawfully stop you, they may demand you give a breath sample by blowing into a hand-held approved screening device (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.

The screening device tests for alcohol in your breath. Under BC law, a warn result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A fail result means a blood-alcohol level over .08.

If the screening device shows a warn result, the police will probably give you an immediate roadside prohibition. (We explain these below, under “Common questions”.)

If the screening device shows a fail, the police may give you an immediate roadside prohibition or they may demand you take a breathalyzer test as part of a criminal investigation.

You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge. It is highly advisable to make your best attempt to blow.

Tip

Under the law, a warn result means a blood-alcohol level over .05. A fail result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.

Police can require you to take a breathalyzer test

Under the Criminal Code, the police may demand you take a breathalyzer test if they have reasonable and probable grounds to believe you are committing the offence of impaired driving or have a blood alcohol level at or over .08 within two hours after driving. The police may use a fail reading from a roadside screening test to form their grounds to demand a breathalyzer test.

If the police demand you take a breathalyzer test

A breathalyzer is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are at or over .08. This amount is the legal limit under the Criminal Code.

If the police demand you take a breathalyzer test, you must go with the police to where the breathalyzer instrument is located (usually, the local police station). As well, you must give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.

Your rights when detained

When police make this demand, you are legally held, or detained. The police must tell you of your right to a lawyer and your other rights under the Charter of Rights and Freedoms before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.

If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.

If you are unconscious, you can’t agree to give a sample. The police must get a warrant to take samples, which they can get by phoning a judicial justice or judge.

You have the right to remain silent

You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

If you refuse to blow (give a breath or blood sample)

If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a reasonable excuse not to. If you refuse to do them, you are committing an offence.

Generally, it is best to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. Making genuine attempts to blow that do not work is not an offence.

Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse a breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or exercise, those rights and speak to a lawyer.

The legal issues are complex and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.

If you are charged with a criminal offence

Police can charge you with any of three impaired driving-related offences under the Criminal Code:

  • impaired driving (driving while your ability to operate a vehicle is impaired by alcohol or a drug)
  • having a blood-alcohol concentration at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after driving (at or over .08)
  • failing or refusing to provide breath or blood samples on demand (refusing to blow)

These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. The charges can apply even if you weren’t driving and didn’t move the vehicle — as long as you had care or control of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

If your breathalyzer results were at or over .08, you will typically be charged with being at or over .08 within two hours of driving. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.

Driving prohibition

If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a 24-hour roadside prohibition. This takes effect immediately. They also typically issue a 90-day administrative driving prohibition. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)

Going to court

If you are charged with any of the three Criminal Code offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex technical and legal issues, it is highly advisable to get help from a lawyer. We suggest options shortly for finding a lawyer.

If you fight the criminal charges in court

In responding to impaired driving-related charges under the Criminal Code, you must decide how to plead. Pleading guilty means you accept responsibility for the offence. Pleading “not guilty” means the court will set a trial.

At the trial, the prosecutor must prove beyond a reasonable doubt that you committed the offence.

For impaired driving, the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.

For at or over .08, the prosecutor must prove your blood-alcohol concentration was at or over 80 milligrams of alcohol in 100 milliliters of blood within two hours after you drove. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.

For failing to blow, the prosecutor must prove you failed to give samples — without a reasonable excuse.

The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.

You have the right to testify (tell the court your story). You don’t have to. But you may want to if you can counter what the witnesses said and raise a reasonable doubt as to whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you ideally make with the help of a lawyer.

If you are convicted of criminal charges

For a first offence of at or over .08 or impaired driving, the mandatory minimum sentence is a $1,000 fine and a driving prohibition of at least one year and up to three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. For a first offence of refusing to blow, the mandatory minimum sentence is a $2,000 fine and a driving prohibition of at least one year and up to three years. Any conviction under these sections of the Criminal Code means you get a criminal record. A judge cannot give you a discharge.

Previous drinking and driving convictions mean higher penalties — usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between three and five years for a second conviction and a lifetime prohibition for a third or later conviction.

If there was an accident

If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or at or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.

Insurance premiums

An impaired driving-related conviction under the Criminal Code means you will pay more in vehicle insurance premiums, under an ICBC program called driver risk premiums. This program applies to more serious driving offences. For more, see our information on the points system and ICBC.

Criminal record

A conviction under the Criminal Code stays on your criminal record and driving record forever. After some time, you can usually ask for a record suspension, which limits access to your criminal record, but even that won’t erase the conviction from your record.

Common questions

Can the police prohibit me from driving based on my roadside screening test results?

Yes. Police can issue an immediate roadside prohibition if your breath sample on a roadside screening device shows a warn or fail result, and police have reasonable grounds to believe your ability to drive is affected by alcohol.

Under BC law, a warn result means a blood-alcohol level over 50 milligrams of alcohol in 100 milliliters of blood (over .05). A fail result means a blood-alcohol level over .08.

If you get a warn result, the driving prohibition police can issue will vary depending on whether you have previous roadside prohibitions. If it is your first prohibition, you’ll get a 3-day driving prohibition. You’ll get a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.

If you get a fail result, the driving prohibition police can issue will be for 90 days.

If police give you an immediate roadside prohibition, they will also impound your vehicle (have it towed). You will be required to pay for the towing and storage. You must also pay penalties and fees, and participate in driver safety programs. As well, your vehicle insurance premiums may increase.

Tip

Under BC law, if your breath sample on a roadside screening device shows a warn or fail result, you have the right to request a second test using a different roadside screening device. You get the benefit of the lower of the two readings. The police have to inform you of this right before giving you a driving prohibition.

Can the police prohibit me from driving even if they don’t give me a breath test?

Yes. Under BC’s driving laws, police can issue a 24-hour roadside prohibition if they have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on a roadside screening device. But if you get a warn or fail result on the screening device, police can use it to issue an immediate roadside prohibition or to hold you for a criminal investigation.

Can I challenge a driving prohibition issued by the police?

Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask RoadSafetyBC for a review of a driving prohibition. You must apply within seven days of when you get the notice of prohibition.

To ask for the review, you can fill in an application form available at any ICBC driver licensing office or apply online. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The grounds to dispute the prohibition vary depending on the type of prohibition. The possible defences are not limited to the grounds to dispute. An expert on police procedure may be available through a lawyer to provide evidence in your case. Close to a quarter of immediate roadside prohibitions are revoked (cancelled) on review.

During the review process, you are still prohibited from driving.

Are the rules different for new drivers?

A new driver participating in BC’s graduated licensing program (a learner or novice driver) can be given a 12-hour roadside suspension of their driver’s licence if a breath test on an approved screening device shows they have any alcohol in their body. There is no review available of this suspension.

As well, they have to start their current stage of the licensing program over again (for example, novice drivers will start over at the beginning of their 24-month N licensing period).

If a new driver gets a result over .05 on a screening device, they also face the regular consequences fully-licensed drivers face.

How does a breathalyzer instrument work?

Breathalyzer instruments are designed to obtain scientifically and legally valid breath tests. Approved breathalyzer instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood-alcohol concentration. The printout can be used as evidence in court. In BC, breathalyzer instruments are usually located only in designated rooms in police stations.

A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the concentration of alcohol in your breath. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of at or over 80 milligrams (called “at or over .08”) means you can be convicted of a criminal offence for having a prohibited blood-alcohol content within two hours after driving.

The technician who operates the approved instrument will ask you to blow into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a certificate describing the test results. Keep this document in its original condition. Don’t write on it or damage it.

What if I lend my car to someone who drinks and drives?

Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other consequences apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.

Who can help

Finding a lawyer

The legal issues for impaired driving can be complex and a conviction can seriously harm you. There are lawyers who specialize in drinking and driving cases. You can call the Lawyer Referral Service to get the name of a lawyer. You can speak to the lawyer for a free half-hour legal consultation about your case, to help decide whether you would want to hire them.

  • Call 604-687-3221 (Greater Vancouver) or 1-800-663-1919 (toll-free)
  • Visit website

You can contact Legal Aid BC to find out if you qualify for a free lawyer under legal aid.

  • Call 604-408-2172 (Greater Vancouver) or 1-866-577-2525 (toll-free)
  • Visit website

If you can’t afford to hire a lawyer and you don’t qualify for legal aid, try to talk with a lawyer before deciding how to respond to any charge against you. On your first appearance in court or when you enter your plea, you can talk to duty counsel at the courthouse. These are lawyers who give free legal advice to people who have a case in the courthouse on that day.

With more information

The BC government website includes information on driving prohibitions, suspensions, and impaired driving.

  • Visit website

ICBC has information on the driver risk premium.

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