Motor Vehicle Offences for Drugs and Alcohol (13:IX)

A. Approved Screening Devices

Pursuant to s. 254(2) of the Criminal Code, a peace officer may demand a breath sample into an Approved Screening Device (ASD) from a driver if the officer reasonably suspects that there is alcohol in the driver’s body and they have operated a motor vehicle within the preceding 3 hours. This is permitted for both drivers who are operating a motor vehicle or have care or control of it. An ASD is different than a breathalyser device at the police station and it does not provide a numerical value for the readings of “warn” or “fail”. If the police do not administer the ASD right away, they may not be able to use the result's readings at trial.

However, Bill C-46, received royal assent on June 21, 2018 and is coming into force and effect in October 2018 proposes to remove the “reasonably suspicion” requirement and allow police officers to demand breath samples from drivers at any time.

Before requiring the driver to provide a breath sample into an ASD, the peace officer does not have to inform the driver of their Charter right, under s 10(b), to call a lawyer. At this time, the driver does not have the right to speak to a lawyer before deciding whether to blow or refuse: the driver must decide right away. If the driver refuses, they will likely be issued a refusal to provide a breath sample under s 215.41(4) of the Motor Vehicle Act or under s 254(5) of the Criminal Code.

The ASD tests for alcohol in the body and it will show a numerical value for a blood alcohol content (“BAC”) under 50 milligrams of alcohol in 100 millilitres of blood (.05), “warn,” or “fail.” It shows a warn for blood-alcohol levels between 50 and 79 milligrams of alcohol in 100 millilitres of blood (.05), and a fail for levels of not less than 80 milligrams. No numerical values are given for a “warn” or a “fail” and it is impossible to determine the actual BAC of the driver.

In contrast, a breathalyser machine measures alcohol in the breath to see if the driver’s blood alcohol concentration is over the legal limit of .08. It is more accurate than the ASD and must be operated by a qualified technician. In practice, the breathalyser is no longer used, and the police rely solely on the ASD to form the basis of issuing the driving prohibition.

In summary, if police demand a breath sample, the driver must comply with the breath demand into the ASD. The driver is legally compelled to provide a breath sample unless there is a reasonable excuse not to do so. Refusing without a reasonable excuse constitutes a separate offence.

B. Provincial Alcohol Offences (Immediate Roadside Prohibitions)

The Motor Vehicle Act s 215.41 makes it an offence either to drive or to be in the care or control of a motor vehicle with a blood-alcohol reading in excess of 80 milligrams of alcohol per 100 millilitres of blood (.08). There is also a separate offence for driving or being in care or control of a vehicle with a blood-alcohol reading in excess of 50 milligrams of alcohol per 100 millilitres of blood (.05). Care or control of a vehicle means occupying the driver’s seat with access to the ignition key, even if the vehicle is parked.

Consequences for these offences depend on a number of circumstances, including a history of previous offences. For clarity, these consequences are listed below, along with an indication which offences they apply to.

Beyond the penalties noted below, receiving multiple penalties, or just one 90-day driving prohibition or Criminal Code penalty, can result in referral to the Responsible Driving Program (RDP), or the Ignition Interlock Program (IIP). The RDP is a course taken over 8 or 16 hours, whereas the IIP requires the installation of an interlock device in the driver’s vehicle. For more information, consult the Road Safety BC website.

1. Immediate Roadside Prohibitions

If an officer suspects you of being affected by alcohol while driving or in care or control, they may ask for a sample of breath into an ASD. You have the right to have a second sample taken, and to have the lower reading prevail.

If you register in the WARN (.05) range, the police may, at their discretion:

• Seize your driver’s license
• Issue you a 'Notice of Prohibition' which will start immediately – removing your driving privileges – the length of which depends on prior IRP convictions (if any)
  • 3-day driving prohibition if it is the first time caught in the warn range
  • 7-day driving prohibition if it is the second time caught in the warn range within five years; or
  • 30-day driving prohibition if it is the third time caught in the warn range within five years.

If you register in the FAIL (.08) range, or refuse to provide a sample, the police may, at their discretion:

• Seize your driver’s license
• Issue you a 'Notice of Prohibition' which will start immediately – removing your driving privileges for 90 days

As discussed above, your vehicle may be impounded if you are issued an Immediate Roadside Prohibition. This is discretionary for 3 and 7 day prohibitions, but mandatory for 30 and 90 day prohibition.

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

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

• Not the driver or in care or control of a motor vehicle;
• Not advised of right to a second test on an ASD;
• Requested second test, but the officer did not perform the test;
• Second test was not performed on a different ASD;
• Prohibition was not served on the basis of the lower ASD result;
• The result of the ASD was not reliable;
• The ASD, which formed the basis of the prohibition, did not register a WARN or FAIL reading;
• The ASD registered a WARN, but the blood alcohol content was less than .05;
• The ASD registered a FAIL, but the blood alcohol content was less than .08;
• Prohibition should be reduced because did not have any previous IRPs; or
• Did not refuse or fail to comply with a demand to provide a breath sample, or had a reasonable excuse for refusing or failing to comply with a demand.

The applicant may attach any statements or evidences for the superintendent’s review. Please note that the filing of an application for review does not stay the driving prohibition. (Motor Vehicle Act s 215.48(4))

To apply for a review of the Immediate Roadside Prohibition, the applicant must show proof of their identity, and provide a copy of the Notice of Driving Prohibition issued by the peace officer

There are two types of reviews: written and oral. The superintendent is not required to hold an oral hearing unless the driving prohibition is for 30 or 90 days, and the applicant requests an oral hearing at the time of filing the application for review and pays the prescribed oral hearing fees (Motor Vehicle Act s 215.48(5)). In a written review, all documents are reviewed by the adjudicator at the appointed time and location, but no oral submissions will take place. In an oral review, the adjudicator will listen to why the driving prohibition ought to be revoked. It is highly recommended that full written submissions are also provided. If the oral hearing is missed, the hearing will automatically change to a written review system. The payment for a written review is $100 whereas the payment for an oral review is $200. The payment is non-refundable.

To submit supporting documents for the oral or written review they must be provided in advance of the hearing. This can be done by submitting the supporting documents in advance of the hearing at any ICBC driver’s licensing office or by faxing them to RoadSafetyBC at 250-356-6544.

For both oral hearings and written reviews, all written information you wish to be considered in your review hearing should be provided to the Superintendent by 4:30 p.m., two days prior to the date and time of the scheduled review.

A decision will be rendered within 21 days from the date the driving prohibition is issued.

Possible review outcomes include:

1. Driving prohibition revoked: will be advised to reapply for driver’s license. The reinstatement fees and monetary penalties will be waived or refunded, however any outstanding debts owed to the province or ICBC must be paid.
2. Driving prohibition confirmed: terms of driving prohibition will remain unchanged.

It is highly recommended that individuals seeking to challenge an immediate roadside prohibition be represented by a lawyer.

b) What Happens if you Lose the Hearing?

The administrative decision (review decision) is final. If the application is unsuccessful, the only recourse is through a judicial review. The application for the judicial review must be filed within 30 days of receiving the decision, and is made by filing a notice of petition in Supreme Court. The filing fee is $200, and appeals can generally only be made on the basis that the original decision was unreasonable.

It is highly recommended that individuals seeking to challenge the administrative decision by way of judicial review be represented by a lawyer.

2. 12 and 24 Hour Prohibitions

24-Hour roadside prohibitions are issued by the police where they believe on reasonable and probable grounds that your ability to drive is affected by alcohol or drugs. The police do not need a breath sample to issue a 24-hour prohibition, but you have the right to request an ASD test. Note, however, if you take an ASD test and test in the WARN or FAIL ranges, more serious penalties will apply to you.

If you are issued a 24 hour prohibition, the police will take your license, and you will have to retrieve it at the police station after 24 hours have passed.

Similarly to the Immediate Roadside Prohibition describe above, individuals wishing to challenge a 24 hour prohibition for alcohol, there is an internal review process available through RoadSafetyBC pursuant to s. 251.1 of the Motor Vehicle Act. This must be done within 7 days. There is no internal review process for challenging a 24 hour prohibitions issued for drugs. The only way to challenge this is by way of judicial review in the BC Supreme Court: Giorio v. Wilson, 2014 BCSC 786 at para 3.

24 hour prohibitions may also lead to a 24 hour impoundment, as discussed above.

12 hour suspensions apply only to drivers in the Graduated Licensing Program (“L” or “N” drivers), for violations of the GLP rules. They are in other respects similar to 24 hour prohibitions.

While a suspension under Motor Vehicle Act s 215 will be placed on the driver’s record, this is a preferable alternative to a charge and conviction under the Criminal Code.

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:

1. 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
2. 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 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.

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.

3. 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 are also issued a 90-day Administrative Driving Prohibition pursuant to s 94.1 of the Motor Vehicle Act.

1. Provincial Driving Prohibitions for Criminal Convictions

If you are convicted of a federal criminal impaired driving or refusal offence, you may be prohibited from driving 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. 90 Day Administrative Driving Prohibitions

If the police suspect that you have consumed alcohol and had care or control of a motor vehicle within the preceding three hours, the police may demand a breath or blood sample. If that sample indicates a BAC over .08, or you refuse a sample, you will be issued a 90-day Administrative Driving Prohibition. This is in addition to federal criminal charges you may face.

To apply for a review of the ADP the driver must do so within seven days from the date he or she receives the Notice of Driving Prohibition. The Grounds of Review for challenging an ADP are more limited than challenging an IRP. The grounds of review are as follows:

• I did not operate or have care or control of a motor vehicle;

• The concentration of alcohol in my blood did not exceed 80 milligrams of alcohol in

100 millilitres of blood.

• I did not refuse or fail to comply with a demand under section 254 of the Criminal

Code to supply a breath or blood sample.

• I had a reasonable excuse for failing or refusing to comply with a demand under section

254 of the Criminal Code to supply a breath or blood sample.

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