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

Current LSLAP policy is to refer all impaired driving offences to the professional bar.

A. Provincial Offences – Immediate Roadside Prohibition

1. Approved Screening Device (ASD) and Breathalyzer

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 breathalyzer 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.

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 MVA or under s 253(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 breathalyzer 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 breathalyzer is no longer used, and the police rely solely on the ASD to 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.

2. Exceeding 80 Milligrams (.08)

The MVA 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). Care or control of a vehicle means occupying the driver’s seat with access to the ignition key, even if the vehicle is parked.

a) Penalties

If the driver’s breath sample registers a “fail” on the ASD, the driver will:

• immediately lose their license for 90 days and have their vehicle impounded for 30 days;
• have to pay all related towing and storage fees (approximately $900); and
• have to pay a $500 fine as well as a $281 driver’s license reinstatement fee.
• possibly be referred to remedial programs

To get their driver’s license back, the driver may have to complete the Responsible Driver Program ($900) as well as use an ignition interlock device ($1,500) for a full year following the completion of the suspension. The total cost of failing an ASD or refusing to blow is about $4,000 before the driver can legally operate a motor vehicle in BC.

3. Exceeding 50 Milligrams (.05)

The MVA 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 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.

a) Penalties

If a person is served with a notice of driving prohibition for having a blood-alcohol concentration between .05 and .08, the following penalties apply:

• For a first time offence in a 5-year period, the driver is prohibited from driving for three days. The vehicle might be impounded for the three days. The driver has to pay the towing and storage fees of approximately $300. There will also be an additional $200 administrative driving penalty and a $281 driver’s license reinstatement fee.
• For a second time offence in a 5-year period, the driver is prohibited from driving for seven days and the administrative penalty increases to $300 plus the $281 reinstatement fee.
• For a third time offence in a 5-year period, the driver is prohibited from driving for 30 days and the administrative penalty increases to $400 plus the $281 reinstatement fee. To get their driver’s license back, the driver must complete the Responsible Driver Program and use an ignition interlock device for a full year following the completion of the suspension. The total cost including penalties, towing, storage, the program, and the device is approximately $4,000.

These provincial penalties are additional to the criminal charges a driver may face if their blood alcohol concentration exceeds .08 or they refuse to provide a breath or blood sample.

4. Refusing to Provide a Breath Sample

If a peace officer has reasonable grounds to believe that a driver failed or refused, without reasonable excuse, to comply with a demand made under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device, the peace officer will seize their license and impound their vehicle.

a) Penalties

If the driver refuses or fails to comply with the breath demand without a reasonable excuse, the driver will:

• immediately lose their license for 90 days and have their vehicle impounded for 30 days;
• have to pay all related towing and storage fees (approximately $900); and
• have to pay a $500 fine as well as a $281 driver’s license reinstatement fee.
• possibly be referred to remedial programs

5. 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 (MVA 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 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. (MVA s 215.48)

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 (MVA 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.