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Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"
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Motor Vehicle Offences for Drugs and Alcohol (13:IX) (view source)
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Under MVA s 90.3, a peace officer may issue a 12-hour license suspension for an individual who has care or control of a motor vehicle with any amount of alcohol in his or her body, provided that there has been a previous condition imposed under MVA s 25(10.1) which prohibits that driver from driving after consuming alcohol (i.e. driving with a Class 7 or 7L). However, this suspension is terminated if the individual provides a medical certificate stating that his or her blood alcohol level did not exceed .03 at the time (30 milligrams of alcohol in 100 millilitres of blood). | Under MVA s 90.3, a peace officer may issue a 12-hour license suspension for an individual who has care or control of a motor vehicle with any amount of alcohol in his or her body, provided that there has been a previous condition imposed under MVA s 25(10.1) which prohibits that driver from driving after consuming alcohol (i.e. driving with a Class 7 or 7L). However, this suspension is terminated if the individual provides a medical certificate stating that his or her blood alcohol level did not exceed .03 at the time (30 milligrams of alcohol in 100 millilitres of blood). | ||
Under s 215(2)(c) of the MVA, a peace officer who has reasonable and probable grounds to believe that a driver’s ability to drive the motor vehicle has been affected by alcohol may order the driver to surrender his or her license. The license is then suspended, even if it is | Under s 215(2)(c) of the MVA, a peace officer who has reasonable and probable grounds to believe that a driver’s ability to drive the motor vehicle has been affected by alcohol may order the driver to surrender his or her license. The license is then suspended, even if it is not physically surrendered, for 24 hours or until the driver proves that he or she has a count of less than .05 (50 milligrams of alcohol in 100 millilitres of blood). Such proof may be obtained by means of a test or a doctor’s certificate. It is important to note that this test is completely voluntary, but it is mandatory when a peace officer requests a test. | ||
Under MVA s 215(3)(c), a police officer who has reasonable and probable grounds to believe that a driver’s ability to drive the motor vehicle has been affected by a drug other than alcohol may order the surrender of the driver’s license. The license will be suspended for 24 hours or until the driver proves he or she is not affected by drugs. | |||
If the result of any voluntary test taken is adverse to the driver, it cannot be used as evidence against the driver. It will only be used to confirm or challenge the officer’s decision to suspend the license. While a suspension under MVA s 215 will be placed on the driver’s record, this is a preferable alternative to a charge and conviction under the ''Criminal Code''. | |||
Under MVA s 94.1, if a peace officer has reasonable and probable grounds to believe that a person operated or had care and control of a motor vehicle while the concentration of alcohol in the blood exceeded .08 (80 milligrams of alcohol in 100 millilitres of blood) or that a person refused to provide a breath or blood sample (as required under ''Criminal Code'' s 254), the peace officer will likely issue a 90-day driving prohibition. The driver has seven days to apply to the Superintendent for review (MVA s 94.4(1)). | |||
== B. Federal (Criminal) Offences == | |||
=== 1. Impaired Driving/Exceeding 80 Milligrams (.08) === | |||
When breathalyzer test results are over .08, the driver may be charged with exceeding .08 or impaired driving. In addition, the driver will receive a 90-day Administrative Driving Prohibition (ADP). 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 miligrams of alcohol in 100 milliliters 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. | |||
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 driving if driving 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. | |||
