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Because you are legally held, or detained, the police must tell you of your right to a lawyer—and other <em>Charter</em> rights—before you provide breath samples. They must also give you a chance to contact a lawyer you choose—a private lawyer or a Legal Aid Duty Counsel—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]]. | |||
<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> | <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> | ||
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<p><strong>a. An <em>Immediate Roadside Prohibition</em> (IRP)</strong><br /> | <p><strong>a. An <em>Immediate Roadside Prohibition</em> (IRP)</strong><br /> | ||
You may be prohibited from driving and lose your vehicle immediately—under section 215 of the BC <em>Motor Vehicle Act</em> (available at | You may be prohibited from driving and lose your vehicle immediately—under section 215 of the BC <em>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>.</p> | ||
<p><strong>How long do you lose your license and vehicle under an IRP</strong>—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> | <p><strong>How long do you lose your license and vehicle under an IRP</strong>—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> | ||
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<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> | <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> | ||
<p><strong>An IRP is not a criminal conviction</strong>—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 | <p><strong>An IRP is not a criminal conviction</strong>—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> | ||
<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> | <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> | ||
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<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> | <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> | ||
<p><strong>24-hour driving prohibition is not a criminal conviction</strong>—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 | <p><strong>24-hour driving prohibition is not a criminal conviction</strong>—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> | ||
<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> | <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> | ||
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<p><strong>e. Higher insurance costs</strong><br /> | <p><strong>e. Higher insurance costs</strong><br /> | ||
Prohibitions and convictions under the BC <em>Motor Vehicle Act</em> mean you have much higher vehicle insurance costs. The website of the Insurance Corporation of BC (ICBC) has more on this at | Prohibitions and convictions under the BC <em>Motor Vehicle Act</em> 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].</p> | ||
<h3><strong>3. What can happen under the Canadian <em>Criminal Code</em> if you drink and drive?</strong></h3> | <h3><strong>3. What can happen under the Canadian <em>Criminal Code</em> if you drink and drive?</strong></h3> | ||
<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>Criminal Code </em>of Canada (available at | <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>Criminal Code </em>of Canada (available at http://laws-lois.justice.gc.ca/eng/:</p> | ||
<ul> | <ul> | ||
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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> | 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> | ||
<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, 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’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm. | <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, 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’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 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 | <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> | ||
<h3><strong>4. If you are facing a drinking and driving case</strong></h3> | <h3><strong>4. If you are facing a drinking and driving case</strong></h3> | ||
