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

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 320.15(1) of the ''Motor Vehicle Act'' or under s 254(5) of the ''Criminal Code''.

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.

If an officer suspects you of being affected by alcohol while driving or in care or control, they may ask for a sample of breath into an ASD. You have the right to have a second sample taken, and to have the lower reading prevail.

'''As discussed above, your vehicle may be impounded if you are issued an Immediate Roadside Prohibition. This is discretionary for 3 and 7 day prohibitions, but mandatory for 30 and 90 day prohibition.'''

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 relevant boxes that indicate the ‘grounds for review.’ The grounds for review are:

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. (''Motor Vehicle Act'' s 215.48(4))

===2. 12 and 24 Hour Prohibitions===

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

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.

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.

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.

 

 

# 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).

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.

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.D.2: Refusing to Provide a Sample]]). The “presumption back” also applies to a blood sample (s 258(1)(d)).

A peace officer can demand a breath sample if that officer reasonably suspects a driver has consumed alcohol (''Criminal Code'' s 254(2)). This is for screening purposes only. An officer may also demand a breath or blood sample for later use as evidence in court under s 254(3) if that officer has reasonable and probable grounds to believe that the driver is impaired or has a blood alcohol concentration level over .08. Refusal to provide a sample in either circumstance is a criminal offence (s 254(5)). To demand the sample under s 254(3), the test is both subjective and objective. The peace officer must hold an honest belief and there must be reasonable grounds for this belief (based on ''Criminal Code'' s 254(3) and ''Charter'' s 8 (protection against unreasonable search and seizure) as interpreted in ''R v Bernshaw'' (1994), 95 CCC (3d) 193 (SCC)).

:'''NOTE:''' '''Providing a breath sample is not a voluntary procedure''': the peace officer demands the sample. The driver may refuse only if he or she has a “reasonable excuse”.

In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private. Where an accused chooses to exercise the right to retain counsel, the police officer must provide him or her with a reasonable opportunity to retain and instruct counsel: ''R v Elgie'' (1987), 48 MVR 103 (BCCA); ''R v Manninen'', [1987] 1 SCR 1233. If the police officer does not inform the driver of his or her right to retain and instruct counsel (''Charter'' s 10(b)), the breath or blood sample, if given, may be excluded from evidence if admitting it “would bring the administration of justice into disrepute” (''Charter'' s 24(2)).  

As with all ''Charter'' rights, the right to retain counsel is subject to reasonable limits prescribed by law and demonstrably justified in a free and democratic society: ''R v Orbanski and Elias'', [2005] 2 SCR 3. The Court in ''Thomsen v R'' (1988) 63 CR (3d) 1 held that “[w]hile a demand for a breath sample into a screening device constitutes a detention under s 10 of the ''Charter'', the suspension of the accused's ability to implement the right to retain and instruct counsel until arrival at the detachment for breath testing [under s 254(3)] is a reasonable limitation on the exercise of that right”.

=== 3. Drug Impaired Driving ===

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.  

*A driver who has over 2 ng of THC in their risks a fine of up to $1000 and a criminal conviction;

*A driver who has over 5 ng of THC in their system, is considered impaired and risks facing a criminal conviction, a $1000 fine and a one year driving prohibition; and

*A driver who has a combination of THC above 2.5 ng and a blood alcohol concentration of over 50 mg% of alcohol per 100 mL is also considered impaired and risks facing a criminal conviction, a $1000 fine and a one year driving prohibition.

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.

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''.

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.

{{REVIEWED LSLAP | date= September 19, 2019}}