Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"
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* upon your 3rd Conviction — a minimum 3 year to-lifetime driving prohibition) | * upon your 3rd Conviction — a minimum 3 year to-lifetime driving prohibition) | ||
= | =C. Federal Alcohol Offences= | ||
The Criminal Code provides a number of federal criminal offences related to impaired driving. These are serious criminal offences, with significant possible penalties. Individuals facing Criminal Code charges are strongly encouraged to consult with a lawyer. | |||
==1. Impaired Driving/ Driving Over 80 | |||
Section 253(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 253(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 253, 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 Henryi, (1971), 5 CCC (2d) 201 (BC Co Ct); R v Jones (1974), 17 CCC (2d) 221 (BCSC); and 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. | |||
The court in R v Kienapple [1974], 15 CCC (2d) 524 (SCC) held that an accused cannot have multiple convictions for the same act. Therefore, an accused cannot be convicted of both impaired driving and having a blood alcohol concentration exceeding 80 milligrams. | |||
The Crown can establish acts of care or control in two ways: | |||
# Pursuant to Criminal Code s 258(1)(a), where a person is occupying the seat or position ordinarily occupied by the person who operates the motor vehicle, that person will be presumed to be in care or control unless he or she establishes that he or she did not occupy that seat or position for the purpose of setting the vehicle in motion; or | |||
# If the Crown is unable to rely on this presumption (i.e. the accused establishes that he or she did not enter the vehicle with the intent to set it in motion), the Crown must then prove acts of care or control which have been defined as any use of the vehicle or its fittings and equipment or some course of conduct associated with the vehicle which create the danger or risk of putting the vehicle in motion: R v Toews (1985), 21 CCC (3d) 24 (SCC). | |||
A peace officer may demand a breath or blood sample pursuant to Criminal Code s 254(3) if the peace officer has reasonable and probable grounds to believe the individual is impaired or has a blood alcohol level over .08. Reasonable and probable grounds may include factors such as the physical condition of the person, if the person is incapable of providing a sample of his or her breath, or that it would be impracticable to obtain a breath sample (s 254(3)). Refusal to provide a sample is a criminal offence (s 254(5)). | |||
For a charge under s 253(1)(b), the Crown may prove a blood alcohol reading in excess of .08 by producing a valid certificate of analysis or providing vive voce testimony at trial from a registered analyst or breathalyser technician about the blood alcohol concentration at the time the accused provided a breath sample. | |||
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 258(1)(c). 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 he or she consumed more alcohol between being stopped and the time the sample was taken). Please note that the “presumption back” applies only to samples demanded pursuant to s 254(3) and not s 254(2), which is for screening purposes (see Section IX.2: Refusing to Provide a Breath or Blood Sample). The “presumption back” also applies to a blood sample (s 258(1)(d)). | |||
Note that this presumption pertaining to the evidence contained in the breathalyser certificate does not offend s 11(d) of the Charter which protects the presumption of innocence: R v Bateman, [1987] BCJ No 253; 46 MVR 155 (BC Co Ct). | |||
As stated above, a conviction requires the production of a valid certificate or vive voce testimony at trial from a registered analyst or a breathalyser technician. However, the breathalyser technician or registered analyst must have the requisite qualifications. | |||
===Penalties=== | |||
Under Criminal Code s 255, impaired driving is a hybrid offence. The minimum fine for a first offence is $1,000. If convicted of an indictable offence under s 255, the accused may be liable for a maximum of 5 years’ imprisonment. If convicted on summary conviction, the accused may be liable for up to 18 months’ imprisonment. Imprisonment is mandatory for repeat offences: at least 30 days for the second offence and at least 120 days for each additional offence. | |||
In addition to facing the risk of a criminal conviction, drivers who are charged under the Criminal Code also risk losing their licence for a period 90 days under the Motor Vehicle Act. | |||
If you are convicted of a federal criminal impaired driving or refusal offence, you may be prohibited from driving by the province as follows: | |||
* upon your 1st Conviction — a 1-3 year driving prohibition | |||
* upon your 2nd Conviction — a 2-5 year driving prohibition | |||
* upon your 3rd Conviction — a minimum 3 year to-lifetime driving prohibition) | |||
Under s 259(1), a person’s driver’s license may be suspended for a period between one and three years. If convicted a second time, the suspension will be between two and five years. On each subsequent offence, the suspension would be a minimum of three years. Section 259(1.1) gives the court discretion to authorise an offender to drive during the prohibition period if the offender registers in an alcohol ignition interlock device program. Such an authorisation will not come into effect until the expiry of an absolute prohibition period of at least three months for a first offence, six months for a second offence, and one year for every subsequent offence (s 259(1.2)). | |||
In addition, 10 penalty points are recorded pursuant to the Motor Vehicle Act Regulations and the offence may be a breach of certain conditions under s 55(8) of the Insurance (Vehicle) Regulation. | |||
== 2. Refusing to Provide a Sample == | |||
A peace officer can demand a breath sample if that officer reasonably suspects a driver has consumed alcohol (Criminal Code s 254(2)). This is for screening purposes only. An officer may also demand a breath or blood sample for later use as evidence in court under s 254(3) if that officer has reasonable and probable grounds to believe that the driver is impaired or has a blood alcohol concentration level over .08. Refusal to provide a sample in either circumstance is a criminal offence (s 254(5)). To demand the sample under s 254(3), the test is both subjective and objective. The peace officer must hold an honest belief and there must be reasonable grounds for this belief (based on Criminal Code s 254(3) and Charter s 8 (protection against unreasonable search and seizure) as interpreted in R v Bernshaw (1994), 95 CCC (3d) 193 (SCC)). | |||
NOTE: Providing a breath sample is not a voluntary procedure: the peace officer demands the sample. The driver may refuse only if he or she has a “reasonable excuse”. | |||
In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private. Where an accused chooses to exercise the right to retain counsel, the police officer must provide him or her with a reasonable opportunity to retain and instruct counsel: R v Elgie (1987), 48 MVR 103 (BCCA); R v Manninen, [1987] 1 SCR 1233. If the police officer does not inform the driver of his or her 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: R v Orbanski and Elias, [2005] 2 SCR 3. The Court in Thomsen v R (1988) 63 C.R. (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 [under s 254(3)] is a reasonable limitation on the exercise of that right”. | |||
The length of time constituting a sufficient and reasonable opportunity for an accused to exercise the right to retain and instruct counsel will depend on the circumstances of each case. An otherwise short period of time may not be unreasonable due to the behaviour and attitude of the individual under investigation by the police. Police officers are always mindful of the fact that they must take a breath sample within two hours of the time the offence was allegedly committed (R v Dupray, (1987), 46 MVR (2d) 39 (BC Co Ct)). | |||
Not only must the police officer provide a reasonable opportunity for the accused to retain and instruct counsel, but the officer must also refrain from attempting to elicit evidence until the detainee has been offered this opportunity. | |||
Breach of Charter s 10(a) (failure to be informed of reason of arrest) may also result in exclusion of evidence under s 24(2) of the Charter. | |||
CHAPTER 10 FEDERAL DRIVING OFFENCES | |||