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

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{{LSLAP Manual TOC|expanded = motor}}
{{LSLAP Manual TOC|expanded = motor}}


==A. Screening Devices==
==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 proceeding 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 machine 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 results readings at trial.
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 proceeding 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.


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 253(5) of the ''Criminal Code''.
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 253(5) of the ''Criminal Code''.
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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.
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==
== B. Provincial Alcohol Offences (Immediate Roadside Prohibitions)==


The ''Motor Vehicle Act'' 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 offences for driving or being in car 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.
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 offences for driving or being in car 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.
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.
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====a) Challenging Immediate Roadside Prohibition (issued for 3, 7, 30, or 90 days)====
====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 the superintendent 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 boxes that indicate the ‘grounds for review.’ The grounds for review are:
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 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 the driver or in care or control of a motor vehicle;
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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.
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.
24 hour prohibitions may also lead to a 24 hour impoundment, as discussed above.
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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''.
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''.
=== 3. 90 Day Administrative 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.
===4. Provincial 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)


==C. Federal Alcohol Offences==
==C. Federal Alcohol Offences==
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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.
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 ===
=== 2. Refusing to Provide a Sample ===
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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.
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.
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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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