Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"
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===1. Impaired Driving/ Driving Over 80=== | ===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 | 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 James'' (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 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.''' | ||
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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)). | 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. | 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 [[{{PAGENAME}}#2. Refusing to Provide a Sample | Section IX.2: Refusing to Provide a Sample]]). The “presumption back” also applies to a blood sample (s 258(1)(d)). | 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 [[{{PAGENAME}}#2. Refusing to Provide a Sample | 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). | 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. | 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 === | === 2. Refusing to Provide a Sample === | ||