Motor Vehicle Offences for Drugs and Alcohol (13:IX): Difference between revisions
From Clicklaw Wikibooks
Motor Vehicle Offences for Drugs and Alcohol (13:IX) (view source)
Revision as of 21:39, 6 September 2020
, 6 September 2020no edit summary
No edit summary |
|||
Line 4: | Line 4: | ||
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. | 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 | Since the enactment of Bill C-46 in December 2018, a police officer is also allowed to demand a mandatory breath sample from a driver at any time. This demand does not require the officer to have reasonable grounds to believe the driver is impaired—they can ask any driver to provide a mandatory sample. This type of demand only applies to roadside tests, not tests where the individual needs to be transported to the police station. The driver does not have a right to consult with counsel before providing a mandatory demand breath sample. There are some requirements for an officer to make a mandatory demand: | ||
A) the officer must have an ASD in their possession when they ask the driver to provide the sample | |||
B) the officer must ask for the sample when the driver is driving or in care and control of a motor vehicle (they can pull a driver over and ask for a sample, but they cannot make a mandatory demand after the driver stops driving, like after they get home). | |||
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 | |||
Before requiring the driver to provide a roadside breath sample into an ASD, the peace officer does not have to inform the driver of their ''Charter'' right, under s 10(b), to consult 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'' or an Immediate Roadside Prohibition (IRP). | |||
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. | ||
Line 12: | Line 15: | ||
In contrast, a breathalyser 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 breathalyser is no longer used, and the police rely solely on the ASD to form the basis of issuing the driving prohibition. | In contrast, a breathalyser 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 breathalyser is no longer used, and the police rely solely on the ASD 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. | In summary, if the police demand a roadside 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. | ||
== B. Provincial Alcohol Offences (Immediate Roadside Prohibitions)== | == B. Provincial Alcohol Offences (Immediate Roadside Prohibitions)== | ||
Line 24: | Line 27: | ||
===1. Immediate Roadside Prohibitions=== | ===1. Immediate Roadside Prohibitions=== | ||
An officer can demand anyone in care and control of a motor vehicle to provide a roadside breath sample using an Approved Screening Device. You have the right to request a second sample be taken, and to have the lower reading prevail. | |||
If you register in the WARN (.05) range, the police may, at their discretion: | If you register in the WARN (.05) range, the police may, at their discretion: | ||
Line 37: | Line 40: | ||
*Issue you a 'Notice of Prohibition' which will start immediately – removing your driving privileges for 90 days | *Issue you a 'Notice of Prohibition' which will start immediately – removing your driving privileges for 90 days | ||
'''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.''' | '''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) Challenging Immediate Roadside Prohibition (issued for 3, 7, 30, or 90 days)==== | ====a) 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 RoadSafetyBC for a review of the driving prohibition (''Motor Vehicle Act'' s 215.48(1)) by attending any driver licensing center, and | 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 completing and submitting 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: | ||
*Not the driver or in care or control of a motor vehicle; | *Not the driver or in care or control of a motor vehicle; | ||
Line 55: | Line 58: | ||
*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. | *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 | The applicant may attach any statements or evidence 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)) | ||
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 | 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 | ||
Line 77: | Line 80: | ||
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. | 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. | ||
===2. 12 and 24 Hour Prohibitions=== | ===2. 12 and 24-Hour Prohibitions=== | ||
24-Hour roadside prohibitions are issued by the police where they believe on reasonable and probable grounds that your ability to drive is affected by alcohol or drugs. The police do not need a breath sample to issue a 24-hour prohibition, but you have the right to request an ASD test. Note, however, if you take an ASD test and test in the WARN or FAIL ranges, more serious penalties will apply to you. | 24-Hour roadside prohibitions are issued by the police where they believe on reasonable and probable grounds that your ability to drive is affected by alcohol or drugs. The police do not need a breath sample to issue a 24-hour prohibition, but you have the right to request an ASD test. Note, however, if you take an ASD test and test in the WARN or FAIL ranges, more serious penalties will apply to you. | ||
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. | 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. | ||
Similar to the Immediate Roadside Prohibition describe above, for 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 | |||
within 7 days. | within 7 days. | ||
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. | 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: ''[http://canlii.ca/t/g6rqr Giorio v Wilson]'', 2014 BCSC 786 at para 3. | ||
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) for violations of the GLP rules. | 12-hour suspensions apply only to drivers in the Graduated Licensing Program (“L” or “N” drivers) for violations of the GLP rules. In other respects they are 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''. | ||
Line 110: | Line 113: | ||
===1. Impaired Driving/ Driving Over 80=== | ===1. Impaired Driving/ Driving Over 80=== | ||
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 | 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 Henry'', (1971), 5 CCC (2d) 201 (BC Co Ct); ''[http://canlii.ca/t/gcqt9 R v James]'' (1974), 17 CCC (2d) 221 (BCSC); and ''[http://canlii.ca/t/g7hf3 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 ''[http://canlii.ca/t/1twxz R v Kienapple]'' [1974], 15 CCC (2d) 524 (SCC) held that an accused cannot have multiple convictions for the same act. The ''Criminal Code'' s 320.15(4) also states that a person who is convicted of an offence under this section cannot be convicted of another offence in this section for a single incident. '''Therefore, an accused cannot be convicted of both impaired driving and having a blood alcohol concentration exceeding 80 milligrams.''' | |||
The Crown can establish acts of care or control by proving any use of the vehicle or its fittings and equipment or some course of conduct associated with the vehicle which creates the danger or risk of putting the vehicle in motion: [http://canlii.ca/t/1ftzx R v Toews], [1985], 2 S.C.R. 119. | |||
A peace officer may demand a breath or blood sample pursuant to ''Criminal Code'' s | A peace officer may demand a breath or blood sample pursuant to ''Criminal Code'' s 320.27 (1) if the peace officer has reasonable and probable grounds to suspect the individual has alcohol or a drug in their body and they have operated a conveyance in the preceding 3 hours. Refusal to comply with a demand for a sample is a criminal offence (s 320.15(1)). Since Bill C-46 was passed in 2018, an officer no longer needs reasonable grounds to suspect an individual has drugs or alcohol in their body as long as the individual is operating a vehicle and the officer has an approved screening device in their possession (''Criminal Code'' s 320.17 (2)). | ||
For a charge under s | For a charge under s 320.14, 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 | 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 320.31 (2). 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 they consumed more alcohol between being stopped and the time the sample was taken). S 320.31 (1) also sets out requirements for the operation of the testing device. If those requirements are met, then there is a presumption that the results of the test are accurate. The results of a blood sample are also presumed to be accurate unless there is evidence to the contrary (s 320.31 (2)). | ||
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). | ||
Line 132: | Line 131: | ||
=== 2. Refusing to Provide a Sample === | === 2. Refusing to Provide a Sample === | ||
There are two ways that an officer can demand a sample: the first is a roadside mandatory demand, which requires that the officer have an approved screening device in their possession and does not require them to suspect the driver of having alcohol or drugs in their system (s 320.27(2)). The purpose of this test is for screening. An individual does not have the right to counsel before providing a roadside breath sample. The second type of demand under s 320.27(1) is both subjective and objective. The peace officer has to have reasonable grounds to suspect that the driver has alcohol or a drug in their body and that they operated a conveyance within the preceding 3 hours (based on ''Criminal Code'' s 320.27(1) and ''Charter'' s 8 (protection against unreasonable search and seizure) as interpreted in [http://canlii.ca/t/1frmf ''R. v. Bernshaw''], [1995] 1 S.C.R. 254. | |||
:'''NOTE:''' '''Providing a breath sample is not a voluntary procedure''': the peace officer demands the sample. The driver may refuse only if | :'''NOTE:''' '''Providing a breath sample is not a voluntary procedure''': the peace officer demands the sample. The driver may refuse only if they have 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 | In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private before providing the sample. This only applies when the driver is taken to the police station or medical facility for testing (not to roadside breathalyzer tests/mandatory demands). Where an accused chooses to exercise the right to retain counsel, the police officer must provide them with a reasonable opportunity to retain and instruct counsel, like by offering them a phone to use: ''[http://canlii.ca/t/22kmf R v Elgie]'' (1987), 48 MVR 103 (BCCA); ''[http://canlii.ca/t/1ftmx R v Manninen]'', [1987] 1 SCR 1233. If the police officer does not inform the driver of their 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 | 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: ''[http://canlii.ca/t/1l0b0 R v Orbanski and Elias]'', [2005] 2 SCR 3. The Court in ''[http://canlii.ca/t/1ftg5 R v Thomsen]'' (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 is a reasonable limitation on the exercise of that right”. | ||
The length of time constituting a sufficient and reasonable opportunity for an accused to exercise the right to retain and instruct counsel will depend on the circumstances of each case. An otherwise short period of time may not be unreasonable due to the behaviour and attitude of the individual under investigation by the police. Police officers are always mindful of the fact that they must take a breath sample within two hours of the time the offence was allegedly committed (''R v Dupray'', (1987), 46 MVR (2d) 39 (BC Co Ct)). | The length of time constituting a sufficient and reasonable opportunity for an accused to exercise the right to retain and instruct counsel will depend on the circumstances of each case. An otherwise short period of time may not be unreasonable due to the behaviour and attitude of the individual under investigation by the police. Police officers are always mindful of the fact that they must take a breath sample within two hours of the time the offence was allegedly committed (''R v Dupray'', (1987), 46 MVR (2d) 39 (BC Co Ct)). | ||
Line 146: | Line 145: | ||
Breach of ''Charter'' s 10(a) (failure to be informed of reason of arrest) may also result in exclusion of evidence under s 24(2) of the Charter. | Breach of ''Charter'' s 10(a) (failure to be informed of reason of arrest) may also result in exclusion of evidence under s 24(2) of the Charter. | ||
=== 3. Drug Impaired Driving === | === 3. Drug-Impaired Driving === | ||
Bill C-46 | 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. Note that these limits still apply if the driver has a prescription for marijuana. | ||
The proposed amendments are to the Regulations, not the ''Criminal Code''. The Regulations set out the per se limits. | The proposed amendments are to the Regulations, not the ''Criminal Code''. The Regulations set out the per se limits. | ||
*A driver who has | *A driver who has 2 to 5 ng of THC per mL of blood risks a fine of up to $1000 and a criminal conviction; | ||
*A driver who has over 5 ng of THC | *A driver who has over 5 ng of THC per mL of blood 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. | *A driver who has a combination of THC above 2.5 ng per mL of blood and a blood alcohol concentration of over 50 mg% of alcohol per 100 mL of blood is also considered impaired and risks facing a criminal conviction, a $1000 fine and a one-year driving prohibition. | ||
=== 4. Penalties === | === 4. Penalties === | ||
Under | Under Criminal Code s 320.19(1), impaired driving is a hybrid offence. For both summary and indictment, the minimum punishments are the same: | ||
*(i) for a first offence, a fine of $1,000, | |||
*(ii) for a second offence, a term of imprisonment for a term of 30 days, and | |||
*(iii) for each subsequent offence, imprisonment for a term of 120 days. | |||
The court does not have to impose the minimum sentence if the accused successfully completes a treatment program (s 320.23(2)). If convicted of an indictable offence under s 320.19(1), the accused may be liable to imprisonment for a maximum term of 10 years. If convicted on summary conviction, the accused may be liable for a fine of not more than $5,000, imprisonment for a maximum term of 2 years less a day, or both. | |||
There are higher minimum fines that apply if the driver’s BAC is especially high (s 320.19(3). For a BAC between 120-160mg per 100mL of blood, a minimum fine of $1,500 applies (s 320.19(3)(a)). For a BAC higher than 160mg per 100mL of blood, a minimum fine of $2,000 applies (s 320.19(3)(b)). | |||
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''. | 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''. | ||
==== 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 prohibited from driving as follows: | If you are convicted of a federal criminal impaired driving or refusal offence under ss 320.14(1) or 320.15(1) of the Criminal Code, you may be prohibited from driving as follows (s 320.24(1)): | ||
* upon your 1st Conviction — | * upon your 1st Conviction — not less than 1 year and not more than 3 years, plus the entirety of the period of time that the offender is imprisoned | ||
* upon your 2nd Conviction — | * upon your 2nd Conviction — not less than 2 years and not more than 10 years, plus the entirety of the period of time that the offender is imprisoned | ||
* upon your 3rd Conviction — | * upon your 3rd Conviction and any subsequent convictions after that — not less than 3 years, plus the entirety of the period of time that the offender is imprisoned (there is no maximum period) | ||
Note that these prohibitions are in addition to any other penalty that applies. | |||
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''. | 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 convicted, meaning that insurance will not cover an accident that occurs within 2 hours before the offence was committed if the offender was operating the vehicle. This also applies if the offender was convicted under the Young Offenders Act or a similar act in the US. | ||
==== 2. 90 Day Administrative Driving Prohibitions ==== | ==== 2. 90 Day Administrative Driving Prohibitions ==== | ||
Under BC’s ''Motor Vehicle Act'' (s 94.1), a 90-Day Administrative Driving Prohibition (ADP) will be issued to any driver who is found to have a BAC over 0.08 or a blood drug concentration (BDC) that violates the ''Motor Vehicle Act'' Regulations. An ADP can also be issued if the driver refuses to provide a sample without a reasonable excuse or if a drug recognition expert determines that their ability to drive was impaired. This is in addition to federal criminal charges you may face. An ADP cannot be issued along with an Immediate Roadside Prohibition (IRP) (only one can be issued). | |||
The difference between an ADP and an IRP is that an IRP is issued following a WARN or FAIL reading from an Approved Screening Device, or a refusal to provide an ASD sample. The length of time that a driver is prohibited from driving under an IRP also differ depending on whether they have received one before or not. An ADP is based on specific BAC (as opposed to WARN/FAIL), BDC, refusal to provide a sample, or a drug impairment determination. The prohibition period for an ADP is always 90 days. | |||
The driver can apply for a review of the ADP within seven days of the date they receive 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: | The Grounds of Review for challenging an ADP are more limited than challenging an IRP. The grounds of review are as follows: | ||
Line 191: | Line 199: | ||
* 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. | * 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= | {{REVIEWED LSLAP | date= August 21, 2020}} | ||
{{LSLAP Manual Navbox|type=chapters8-14}} | {{LSLAP Manual Navbox|type=chapters8-14}} |