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

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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.
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.
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 MVAR and the offence may be a breach of certain conditions under s 55(8) of the ''Insurance (Vehicle) Regulation''.
=== 2. Refusing to Provide a Breath or Blood 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 Orbanskiand 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 (RvDupray, (1987), 46 MVR (2d) 39 (BC Co Ct)).
13-25Not 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.
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