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.

To submit supporting documents for the oral or written review they must be provided in advance of the hearing. This can be done by submitting the supporting documents 48 hours in advance of the hearing at any ICBC driver’s licensing office or by faxing them to RoadSafetyBC at 250-356-6544.

A decision will be rendered within 21 days from the date the driving prohibition is issued.

Possible review outcomes include:

• Driving prohibition revoked: will be advised to reapply for driver’s license. The reinstatement fees and monetary penalties will be waived or refunded, however any outstanding debts owed to the province or ICBC must be paid.
• Driving prohibition confirmed: terms of driving prohibition will remain unchanged.

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 30 days of receiving the decision, and is made by filing a notice of petition in Supreme Court. The filing fee is $200.

It is highly recommended that individuals seeking to challenge the administrative decision by way of judicial review be represented by a lawyer.

6. Twelve and 24-Hour Suspensions and 90-Day Driving Prohibitions

Even if the driver’s blood alcohol concentration does not exceed .08, the driver may be prohibited from driving for 24 hours if the peace officer has reasonable and probable grounds to believe that the driver’s ability to drive a motor vehicle is affected by alcohol. The police may also impound the motor vehicle for 24 hours under s 215.4(1) of the MVA if they believe that impoundment is necessary to prevent the driver from driving or operating the motor vehicle before the prohibition expires. If an ASD shows that the driver’s blood alcohol concentration is not over .05, the police must end the prohibition. The appeal to the Superintendent follows the same procedure as what is outlined under “Challenging Roadside Conditions” (IX.A.1.c).

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 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.

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 Crown can establish acts of care or control in two ways:

• a) 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
• b) 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 breathalyzer 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 Section IX.2: Refusing to Provide a Breath or Blood Sample). The “presumption back” also applies to a blood sample (s 258(1)(d)).

Note that this presumption pertaining to the evidence contained in the breathalyzer 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).

As stated above, a conviction requires the production of a valid certificate or vive voce testimony at trial from a registered analyst or a breathalyzer technician. However, the breathalyzer technician or registered analyst must have the requisite qualifications.

a) Penalties

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.

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 MVAR and the offence may be a breach of certain conditions under s 55(8) of the Insurance (Vehicle) Regulation.

2. Refusing to Provide a Breath or Blood Sample

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 Orbanskiand Elias, [2005] 2 SCR 3. The Court in Thomsen v R (1988) 63 C.R. (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”.

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)).

Not only must the police officer provide a reasonable opportunity for the accused to retain and instruct counsel, but the officer must also refrain from attempting to elicit evidence until the detainee has been offered this opportunity.

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.