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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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==A. Approved Screening Devices== | ==A. Approved Screening Devices== | ||
Pursuant to s. | Pursuant to s 320.27(1) 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 preceding 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. | ||
Since the enactment of Bill C-46 in December 2018, police officers are also allowed to demand breath samples from drivers at any time if the officers are in possession of approved screening device. | |||
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 | 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 320.15(1) of the ''Motor Vehicle Act'' or under s 254(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. | 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. | ||
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== B. Provincial Alcohol Offences (Immediate Roadside Prohibitions)== | == B. Provincial Alcohol Offences (Immediate Roadside Prohibitions)== | ||
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 offence for driving or being in care 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; "fail"). There is also a separate offence for driving or being in care or control of a vehicle with a blood-alcohol reading in excess of 50 milligrams of alcohol per 100 millilitres of blood (.05; "warn"). 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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# Driving prohibition confirmed: terms of driving prohibition will remain unchanged. | # Driving prohibition confirmed: terms of driving prohibition will remain unchanged. | ||
It is highly recommended that individuals seeking to challenge an | It is highly recommended that individuals seeking to challenge an Immediate Roadside Prohibition be represented by a lawyer. | ||
==== b) What Happens if you Lose the Hearing? ==== | ==== b) What Happens if you Lose the Hearing? ==== | ||
The administrative decision (review decision) is final. If the application is unsuccessful, the only recourse is through a judicial review. The application for the judicial review must be filed within 6 months of receiving the decision, and is made by filing a Petition in Supreme Court. | The administrative decision (review decision) is final. If the application is unsuccessful, the only recourse is through a judicial review. The application for the judicial review must be filed within 6 months of receiving the decision, and is made by filing a Petition in Supreme Court. It is highly recommended that individuals seeking to challenge the administrative decision by way of judicial review be represented by a lawyer. | ||
It is highly recommended that individuals seeking to challenge the administrative decision by way of judicial review be represented by a lawyer. | |||
===2. 12 and 24 Hour Prohibitions=== | ===2. 12 and 24 Hour Prohibitions=== | ||
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Similarly to the Immediate Roadside Prohibition describe above, individuals wishing to | 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 | challenge a 24 hour prohibition for '''alcohol''', there is an internal review process available | ||
through RoadSafetyBC pursuant to s | through RoadSafetyBC pursuant to s 251.1 of the ''Motor Vehicle Act''. This must be done | ||
within 7 days. | within 7 days. | ||
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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. | ||
12 hour suspensions apply only to drivers in the Graduated Licensing Program (“L” or “N” drivers) | 12 hour suspensions apply only to drivers in the Graduated Licensing Program (“L” or “N” drivers) for violations of the GLP rules. They are in other respects similar to 24 hour prohibitions. | ||
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''. | ||
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==C. Drug Offences== | ==C. Drug Offences== | ||
The BC government has passed legislation amending the ''MVA'' which received royal assent on May 17, 2018, and | The BC government has passed legislation amending the ''MVA'' which received royal assent on May 17, 2018, and has come into force by regulation of the Lieutenant Governor in Council. | ||
The new legislation includes a number of amendments. Section 25(10.101) | The new legislation includes a number of amendments. Section 25(10.101) allows the Lieutenant Governor in Council to impose a condition on driver’s licenses that those who hold the license must not operate a motor vehicle while having a prescribed drug in their body. | ||
Section 90.3(2.1) | Section 90.3(2.1) allows a peace officer to demand a sample of a bodily substance from a driver who holds a driver's licence on which a condition is imposed under section 25 (10.101) for analysis by means of approved drug screening equipment. If the analysis indicates the driver has a prescribed drug in their body, the peace officer may serve them with a notice of license suspension and request the driver to surrender their license. S. 90.3(3) allows the peace officer to apply the same consequence to a driver who declines to provide such a sample. | ||
Similar amendments | Similar amendments alter much of the ''MVA'' regulations for driving with alcohol in your system so that driving with a prescribed drug in your system can result in the same penalties. There is no blood drug concentration specified yet. It will be possible for a combination of drugs and alcohol to trigger penalties even if the blood concentration of each substance is less than the legal limit (section 94.1). | ||
==D. Federal Alcohol and Drug Offences== | ==D. Federal Alcohol and Drug Offences== | ||
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===1. Impaired Driving/ Driving Over 80=== | ===1. Impaired Driving/ Driving Over 80=== | ||
Section | Section 320.14(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 320.14(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 320.14, 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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# Pursuant to ''Criminal Code'' s 258(1)(a), where a person is occupying the seat or position ordinarily occupied by the person who operates the motor vehicle, that person will be presumed to be in care or control unless he or she establishes that he or she did not occupy that seat or position for the purpose of setting the vehicle in motion; or | # Pursuant to ''Criminal Code'' s 258(1)(a), where a person is occupying the seat or position ordinarily occupied by the person who operates the motor vehicle, that person will be presumed to be in care or control unless he or she establishes that he or she did not occupy that seat or position for the purpose of setting the vehicle in motion; or | ||
# If the Crown is unable to rely on this presumption (i.e. the accused establishes that he or she did not enter the vehicle with the intent to set it in motion), the Crown must then prove acts of care or control which have been defined as any use of the vehicle or its fittings and equipment or some course of conduct associated with the vehicle which create the danger or risk of putting the vehicle in motion: ''R v Toews'' (1985), 21 CCC (3d) 24 (SCC). | # If the Crown is unable to rely on this presumption (i.e. the accused establishes that he or she did not enter the vehicle with the intent to set it in motion), the Crown must then prove acts of care or control which have been defined as any use of the vehicle or its fittings and equipment or some course of conduct associated with the vehicle which create the danger or risk of putting the vehicle in motion: ''R v Toews'' (1985), 21 CCC (3d) 24 (SCC). | ||
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=== 3. Drug Impaired Driving === | === 3. Drug Impaired Driving === | ||
Bill C-46, received royal assent on June 21, 2018 and | Bill C-46, received royal assent on June 21, 2018 and came into force and effect in 2018. The Bill makes significant changes to the ''Criminal Code'' and regulations. | ||
The Bill creates the ''Criminal Code'' offences for driving while impaired by marijuana. The Bill proposes limits for the amount of THC, the main psychoactive ingredient in marijuana, that drivers can legally have in their system while driving. | The Bill creates the ''Criminal Code'' offences for driving while impaired by marijuana. The Bill proposes limits for the amount of THC, the main psychoactive ingredient in marijuana, that drivers can legally have in their system while driving. | ||
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=== 4. Penalties === | === 4. Penalties === | ||
Under ''Criminal Code'' s 255, impaired driving is a hybrid offence. The minimum fine for a first | 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. | ||
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 | 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''. | ||
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 ==== | ==== 1. Provincial Driving Prohibitions for Criminal Convictions ==== | ||
If you are convicted of a federal criminal impaired driving or refusal offence, you may be | If you are convicted of a federal criminal impaired driving or refusal offence, you may be prohibited from driving as follows: | ||
prohibited from driving as follows: | |||
* upon your 1st Conviction — a 1-3 year driving prohibition | * upon your 1st Conviction — a 1-3 year driving prohibition | ||
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* upon your 3rd Conviction — a minimum 3 year to-lifetime 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 | 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)). | ||
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 | 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''. | ||
offence may be a breach of certain conditions under s 55(8) of the ''Insurance (Vehicle) Regulation''. | |||
==== 2. 90 Day Administrative Driving Prohibitions ==== | ==== 2. 90 Day Administrative Driving Prohibitions ==== | ||
If the police suspect that you have consumed alcohol and had care or control of a motor | 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. | ||
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 | 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. | ||
Administrative Driving Prohibition. This is in addition to federal criminal charges you may | |||
The Grounds of Review for challenging an ADP are more limited than challenging an IRP. The grounds of review are as follows: | |||
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; | * 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 | * The concentration of alcohol in my blood did not exceed 80 milligrams of alcohol in 100 millilitres of blood within three hours. | ||
100 millilitres of blood. | |||
* I did not refuse or fail to comply with a demand under section | * I did not refuse or fail to comply with a demand under section 320.15 of the Criminal Code to supply a breath or blood sample. | ||
Code to supply a breath or blood sample. | |||
* I had a reasonable excuse for failing or refusing to comply with a demand under section | * I had a reasonable excuse for failing or refusing to comply with a demand under section 320.15 of the Criminal Code to supply a breath or blood sample. | ||
{{REVIEWED LSLAP | date= September 19, 2019}} | |||
{{LSLAP Manual Navbox|type=chapters8-14}} | {{LSLAP Manual Navbox|type=chapters8-14}} | ||
