Difference between revisions of "Driving While Prohibited"

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{{Dial-A-Law TOC|expanded = autos}}
{{Dial-A-Law TOC|expanded = autos}}
This script explains [http://www.icbc.com/driver-licensing/tickets/Pages/Driver-prohibitions.aspx driving prohibitions] in BC. Then it explains what can happen if you are charged with driving a motor vehicle while prohibited from driving under the BC ''Motor Vehicle Act'' and the penalties if you are convicted. The script uses the words ''prohibitions'' and ''suspensions''. Usually, the Superintendent of Motor Vehicles '''suspends''' a driving privilege while a court '''prohibits''' someone from driving. But in reality, the two things are basically the same.
There are several ways you can be prohibited from driving: by the province, by the police, or by a driving conviction. It is a driving offence to drive while prohibited.


==Types of driving prohibitions or suspensions==
==Understand your legal rights==


'''1. BC Superintendent of Motor Vehicles [http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-driver-improvement-program prohibition for poor driving record]'''
===The province can prohibit you from driving===
:The BC Superintendent of Motor Vehicles can prohibit you from driving in any of the following cases (the government calls this Driver Improvement Program prohibitions):
A BC government office monitors driving records and can issue a driving prohibition. The '''Superintendent of Motor Vehicles''', through its [http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-driver-improvement-program Driver Improvement Program], looks at things like the number of '''penalty points''' you have accumulated on your driving record within a two-year period (many driving offences automatically result in penalty points). The Superintendent’s office can prohibit you from driving in any of these cases:
:*the Superintendent considers it in the public interest—for example, if you have a bad driving record.
*The Superintendent considers it in the public interest — for example, if you have a bad driving record or you were involved in a high-risk driving incident.
:*your driver’s license was suspended in anther province or state.
*Your driver’s licence was suspended in another province or state.
:*you don’t pay money, called damages, that a court orders for a vehicle accident in which you were the driver or vehicle owner.
*You haven’t paid money owing under a court order relating to a vehicle accident you were involved in.
:*you don’t take a medical exam that the Superintendent orders.
*You haven’t taken a medical exam required by the Superintendent.


'''2. [http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/prohibitions-and-suspensions/alcohol-and-drug-related-suspensions#24hour 24-hour roadside prohibition]'''
===The police can prohibit you from driving===
:If you have care or control of a vehicle and the police have reasonable grounds to believe that your ability to drive is affected by alcohol or drugs, they may:
Police have the discretion to issue various driving prohibitions.  
:*require you to remove your vehicle from the road.
:*require you to give them your driver’s license.
:*give you notice of a 24-hour prohibition. The notice is a document.
:*impound your vehicle (have it towed) to prevent you from driving during the 24-hour prohibition.


:If the police give you this prohibition without testing your breath, you can ask them to test your breath with an approved roadside-screening device (ASD). If your blood-alcohol level is not over 50 milligrams per 100 milliliters of blood, the police have to cancel the prohibition. But if your blood-alcohol level is over 50 milligrams, you face much more than a 24-hour prohibition—check script [[Drinking and Driving (Script 190)|190]], called “Drinking and Driving”.
====24-hour roadside prohibition====
Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec215_smooth BC’s driving laws], if the police have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug, they can issue a '''24-hour roadside prohibition'''.  


:If the prohibition is because of alcohol, you can ask the Superintendent to review the prohibition. You have to do that in writing, within 7 days of getting the notice. The Superintendent can cancel the prohibition only in 2 cases: if you were not the driver or you did not have care or control of the vehicle or if the police failed to test your blood alcohol when you asked.
If you are given a 24-hour prohibition, police send a copy of the prohibition notice to ICBC to be placed on your driver's record. Police can also '''impound''' your vehicle (have it towed) to prevent you from driving.  


'''3. [http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/prohibitions-and-suspensions/alcohol-and-drug-related-suspensions#12hour 12-hour roadside suspension]'''
{| class="wikitable"
:A 12-hour suspension applies only to new drivers in the Graduated Licensing Program. As a driver in this program (as a Learner or Novice), if you have care or control of a motor vehicle and an ASD test shows you have any alcohol in your body, you receive an immediate 12-hour driving suspension. You also have to go back to the start of your 12-month (L) or 24-month (N) stage. And the Superintendent will automatically review your driving record and can give you more driving prohibitions if your record is unsatisfactory.
|align="left"|'''Tip'''
If police give you a 24-hour roadside prohibition, believing you’ve been drinking, you can ask the police to test your breath. If your blood-alcohol level is below 50 milligrams of alcohol in 100 millilitres of blood (“below .05”), the police have to cancel the prohibition. But if your blood-alcohol level is over .05, you face more than a 24-hour prohibition — see our information on [[[Drinking and Driving (Script 190)|impaired driving (no. 190)]].
|}
====Immediate roadside prohibition====
Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html?searchUrlHash=AAAAAQANNTAgbWlsbGlncmFtcwAAAAAB&resultIndex=1#sec215.41_smooth another provision of BC’s driving laws], police can issue an '''immediate roadside prohibition''' if you provide a breath sample and an '''approved screening device''' shows a warn or fail reading, and police have reasonable grounds to believe your ability to drive is affected by alcohol.  


:If your blood-alcohol level is over 0.05, you face the same consequences as other drivers, plus go back to the start of your 12-month (L) or 24-month (N) stage. There is no review of a 12-hour roadside suspension.
A '''fail''' reading (of over .08) results in a 90-day driving prohibition. A '''warn''' reading (of over .05) results in a 3-day driving prohibition for a first prohibition, a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.
 
====Administrative driving prohibition====
Under [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec94.1_smooth another provision], if the police, suspecting you of drinking and driving, test your blood-alcohol level and it’s over .08, they can give you a 90-day '''administrative driving prohibition'''. They can also charge you under the ''Criminal Code'' with impaired driving. (For more, see our information on [[Drinking and Driving (Script 190)|impaired driving, no. 190]].)


'''4. [http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/prohibitions-and-suspensions/alcohol-and-drug-related-suspensions#irp Immediate roadside prohibition] (IRP)'''
===A criminal conviction can prohibit you from driving===
:If you have care or control of a motor vehicle and the police reasonably suspect that you have alcohol or drugs in your body, they may demand that you blow into a hand-held breath-testing device at the side of the road. (Script [[Drinking and Driving (Script 190)|190]] has more on this.)
If you are convicted of a driving-related offence under the ''Criminal Code'', you receive an automatic driving prohibition (in addition to other penalties). For example, if you are convicted of impaired driving, dangerous driving, or hit and run, you are automatically prohibited from driving for '''one year'''. The judge can order a longer driving prohibition, depending on the facts of the case and your overall driving record.


:If the device shows a “warn”, the police will:
===If you are charged with driving while prohibited===
:*take your driver’s license and give you a notice that you are prohibited from driving.
'''Driving while prohibited''' from driving is an offence under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-318/latest/rsbc-1996-c-318.html#sec95_smooth Motor Vehicle Act]''. If you are charged with driving while prohibited, the prosecutor must usually prove that:
:*impound your vehicle for 3 clear days (not including weekends).
*you were driving, and
:*immediately prohibit you from driving for 3 clear days (longer for later incidents).
*you were prohibited from driving, and
*you ''knew'' you were prohibited from driving.


:For a second offense within 5 years, the driving prohibition and vehicle impoundment increase to 7 days. For a third offense within 5 years, the driving prohibition and vehicle impoundment increase to 30 days.  
The prosecutor must prove each of these elements beyond a reasonable doubt. The prosecutor will normally use several documents to show these things, in addition to other evidence. You should carefully review these documents, ideally with a lawyer, before deciding how to proceed.


:In all 3 cases, you also have to pay penalties and fees to get your license back, or reinstated. And in the third case, you have to enroll in a responsible driver program and install an ignition interlock device in your vehicle. Both these things cost a lot more.  
For a description of what to expect from the process, see our information on [[Traffic Tickets (Script 194)|traffic tickets (no. 194)]].


:If the device shows a “fail” or if you refuse to provide a breath sample, the police will:
===If you’re sentenced for driving while prohibited===
:*take your driver’s license.
If you plead guilty or are found guilty on a charge of driving while prohibited, you will be '''sentenced'''.
:*prohibit you from driving for 90 days.
:*impound your vehicle for 30 days.


:And you also have to pay a penalty and a license reinstatement fee, enroll in a responsible driver program and install an ignition interlock device in your vehicle. Both these things cost a lot more. The police may also arrest you and take you to the police station for further breath testing.
If it is your first conviction for driving while prohibited, a judge must '''fine''' you at least $500 and up to $2,000. The judge can also send you to jail for up to six months, but usually won’t for a first offence.


:You can ask for a [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews review] of the prohibitions within 7 days of when you get the notice of prohibition. The [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews/immediate-roadside-prohibitions-irp grounds] to dispute the prohibition are limited and most prohibitions are upheld. You must fill in an application form available at ICBC Driver Licensing Offices. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the notice. During the review process, you are still prohibited from driving.
As well, you will be '''prohibited from driving''' for at least 12 months. The judge can consider your driving record and impose a longer driving prohibition.


'''5. [http://www.icbc.com/driver-licensing/tickets/Pages/adp.aspx Administrative Driving Prohibition] (ADP)'''
In addition, a driving while prohibited conviction automatically results in '''10 penalty points''' against your driver’s licence. (For how penalty points affect the premiums you pay for car insurance, see our information on [[The Points System and ICBC (Script 187)|the points system and ICBC, no. 187]].)
:If your blood alcohol content is over 0.08, or if you refuse to give a breath sample, police may give you a 90-day driving prohibition and charge you under the ''Criminal Code'' with impaired driving – if they don’t give you an IRP (see item 4 above).


'''6. [http://www.icbc.com/driver-licensing/tickets/Pages/Driver-prohibitions.aspx Unlicensed driver prohibition]'''
For a second or further offence, a judge must send you to '''jail''' for at least 14 days and up to one year — in addition to ordering a fine of between $500 and $2,000, and a driving prohibition of at least a year.
:The Superintendent can prohibit you from driving for repeat unlicensed-driving offences. The prohibition lasts until you become licensed.


'''7. [http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/prohibitions-and-suspensions/consequences-conviction-motor-vehicle-offences Driving prohibition for ''Criminal Code'' conviction (court ordered)]'''
==Common questions==
:You lose the right to drive if you are convicted of a ''Criminal Code'' offense related to motor vehicles. For example, if you are convicted of impaired driving, dangerous driving, or hit and run, your license is suspended for 1 year. This is the penalty for a first offense—unless a judge orders a longer prohibition. For a second conviction within 10 years, your license is suspended for 3 years. For 3 or more convictions, your license is suspended indefinitely. With an indefinite suspension, you can re-apply for a license after 5 years, but the suspension can be extended if you don’t comply with other requirements or conditions of getting a license. Script [[Drinking and Driving (Script 190)|190]] has more on this topic.


:If you are convicted of a ''Criminal Code'' offense relating to motor vehicles, you have to complete the [http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-remedial-programs/responsible-driver-program Responsible Driver Program]. It may also be required if you apply for a driver’s license and you have received:
===Can I challenge a driving prohibition issued by the police?===
:*two 90-day administrative driving prohibitions within 5 years,
Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver's record. You can ask Road Safety BC for a '''review''' of a driving prohibition. You must ask '''within seven days''' of when you get the notice of prohibition.  
:*three 24-hour driving prohibitions within 5 years, or
:*a combined total of three 24-hour prohibitions or 90-day prohibitions within 5 years.


:If you are convicted of 3 of more alcohol-related ''Criminal Code'' offences, you can re-apply for a driver’s license after 5 years if you successfully complete the rehabilitation program.
To ask for the review, you fill in an application form available at any ICBC [https://www.icbc.com/locators/Pages/default.aspx driver licensing office]. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews grounds to dispute] the prohibition vary depending on the type of prohibition. The reality is most prohibitions are upheld. During the review process, you are still prohibited from driving.


==If you are charged with driving while prohibited==
==Get help==
To convict you of this offense, the prosecutor must usually prove beyond a reasonable doubt that you:
*were driving, and
*were prohibited from driving, and
*knew you were prohibited from driving.


The prosecutor will normally use several documents to show these things. You should carefully review these documents with a lawyer before deciding how to proceed. For more on defending yourself, check script [[Defending Yourself Against a Criminal Charge (Script 211)|211]], called “Defending Yourself Against a Criminal Charge”.
===With more information===
 
The '''BC government''' website includes information on driving prohibitions and suspensions.
==Penalties if you are convicted of driving while prohibited==
:Web: [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/prohibitions-and-suspensions gov.bc.ca/driving]
'''a.  [http://www.bclaws.ca/civix/document/id/consol28/consol28/96318_02#section95 Fine, jail, or both]'''
:For a first offence, a judge must fine you at least $500 and up to $2000. The judge can also send you to jail for up to 6 months, but does not have to and usually doesn’t.
With its '''Driver Improvement Program''', the Superintendent of Motor Vehicles identifies high-risk drivers and encourages them to improve their driving habits.  
 
:Web: [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-driver-improvement-program gov.bc.ca/driving]
:For a second or further offense, a judge must fine you at least $500 but not more than $2000 and must send you to jail for at least 14 days up to one year.
 
:You also [http://www.icbc.com/driver-licensing/tickets/Pages/fines-points-offences.aspx lose 10 points].
 
'''b.  Driving prohibition of 12 months or longer'''
:In addition to a fine and jail term, if you’re convicted of driving while prohibited, even if it’s your first offence, you will be prohibited from driving for at least 12 months. The judge can consider your driving record and impose a longer prohibition, in addition to the automatic 12-month prohibition.
 
'''c.  Vehicle impoundment'''
:There are other penalties too. If the police catch you driving while prohibited, they will impound, or take away, your vehicle. It will also be impounded if you are suspended from driving for ''Criminal Code'' convictions related to motor vehicles or if you are prohibited from driving because you are medically unfit.
 
:The impoundment lasts 7 days for a first incident and 30 days for a second incident and 60 days for a third incident. You have to pay all costs of the impoundment before you get your vehicle back. You can ask the Superintendent to review the impoundment within 30 days of the date of the notice of impoundment. The impoundment notice explains how to apply for a review.
 
==Summary==
Driving while prohibited is a complex offence with severe penalties. If you are charged, you should at least talk to a lawyer and get some advice. Then you can decide whether you want to hire a lawyer to represent you in court.
 
==More information==
* Check the ICBC website section on [http://www.icbc.com/driver-licensing/tickets/Pages/default.aspx driver licensing].
* Check script [[Drinking and Driving (Script 190)|190]], called “Drinking and Driving” and script [[Defending Yourself Against a Criminal Charge (Script 211)|211]], called “Defending Yourself Against a Criminal Charge”.
* Check the ''[http://www.bclaws.ca/civix/document/id/complete/statreg/96318_00 Motor Vehicle Act]'' and the ''[http://laws-lois.justice.gc.ca/eng/acts/C-46/index.html Criminal Code]''.
* BC government information on [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/prohibitions-and-suspensions prohibitions and suspensions].
* Check [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/organizational-structure-and-partnerships/about-roadsafetybc RoadSafetyBC] (previously called the Office of the Superintendent of Motor Vehicles).




Line 104: Line 78:
[updated May 2018]
[updated May 2018]


'''The above was last edited by John Blois.'''
'''The above was last reviewed for legal accuracy by [https://jcarrlawyers.com/lawyers/ Jeremy Carr], Jeremy Carr & Associates.'''


----
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Revision as of 21:18, 10 February 2019

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There are several ways you can be prohibited from driving: by the province, by the police, or by a driving conviction. It is a driving offence to drive while prohibited.

Understand your legal rights

The province can prohibit you from driving

A BC government office monitors driving records and can issue a driving prohibition. The Superintendent of Motor Vehicles, through its Driver Improvement Program, looks at things like the number of penalty points you have accumulated on your driving record within a two-year period (many driving offences automatically result in penalty points). The Superintendent’s office can prohibit you from driving in any of these cases:

  • The Superintendent considers it in the public interest — for example, if you have a bad driving record or you were involved in a high-risk driving incident.
  • Your driver’s licence was suspended in another province or state.
  • You haven’t paid money owing under a court order relating to a vehicle accident you were involved in.
  • You haven’t taken a medical exam required by the Superintendent.

The police can prohibit you from driving

Police have the discretion to issue various driving prohibitions.

24-hour roadside prohibition

Under BC’s driving laws, if the police have reasonable grounds to believe a driver’s ability to drive is affected by alcohol or a drug, they can issue a 24-hour roadside prohibition.

If you are given a 24-hour prohibition, police send a copy of the prohibition notice to ICBC to be placed on your driver's record. Police can also impound your vehicle (have it towed) to prevent you from driving.

Tip

If police give you a 24-hour roadside prohibition, believing you’ve been drinking, you can ask the police to test your breath. If your blood-alcohol level is below 50 milligrams of alcohol in 100 millilitres of blood (“below .05”), the police have to cancel the prohibition. But if your blood-alcohol level is over .05, you face more than a 24-hour prohibition — see our information on [[[Drinking and Driving (Script 190)|impaired driving (no. 190)]].

Immediate roadside prohibition

Under another provision of BC’s driving laws, police can issue an immediate roadside prohibition if you provide a breath sample and an approved screening device shows a warn or fail reading, and police have reasonable grounds to believe your ability to drive is affected by alcohol.

A fail reading (of over .08) results in a 90-day driving prohibition. A warn reading (of over .05) results in a 3-day driving prohibition for a first prohibition, a 7-day driving prohibition for a second prohibition, and a 30-day driving prohibition for any subsequent prohibition.

Administrative driving prohibition

Under another provision, if the police, suspecting you of drinking and driving, test your blood-alcohol level and it’s over .08, they can give you a 90-day administrative driving prohibition. They can also charge you under the Criminal Code with impaired driving. (For more, see our information on impaired driving, no. 190.)

A criminal conviction can prohibit you from driving

If you are convicted of a driving-related offence under the Criminal Code, you receive an automatic driving prohibition (in addition to other penalties). For example, if you are convicted of impaired driving, dangerous driving, or hit and run, you are automatically prohibited from driving for one year. The judge can order a longer driving prohibition, depending on the facts of the case and your overall driving record.

If you are charged with driving while prohibited

Driving while prohibited from driving is an offence under the Motor Vehicle Act. If you are charged with driving while prohibited, the prosecutor must usually prove that:

  • you were driving, and
  • you were prohibited from driving, and
  • you knew you were prohibited from driving.

The prosecutor must prove each of these elements beyond a reasonable doubt. The prosecutor will normally use several documents to show these things, in addition to other evidence. You should carefully review these documents, ideally with a lawyer, before deciding how to proceed.

For a description of what to expect from the process, see our information on traffic tickets (no. 194).

If you’re sentenced for driving while prohibited

If you plead guilty or are found guilty on a charge of driving while prohibited, you will be sentenced.

If it is your first conviction for driving while prohibited, a judge must fine you at least $500 and up to $2,000. The judge can also send you to jail for up to six months, but usually won’t for a first offence.

As well, you will be prohibited from driving for at least 12 months. The judge can consider your driving record and impose a longer driving prohibition.

In addition, a driving while prohibited conviction automatically results in 10 penalty points against your driver’s licence. (For how penalty points affect the premiums you pay for car insurance, see our information on the points system and ICBC, no. 187.)

For a second or further offence, a judge must send you to jail for at least 14 days and up to one year — in addition to ordering a fine of between $500 and $2,000, and a driving prohibition of at least a year.

Common questions

Can I challenge a driving prohibition issued by the police?

Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver's record. You can ask Road Safety BC for a review of a driving prohibition. You must ask within seven days of when you get the notice of prohibition.

To ask for the review, you fill in an application form available at any ICBC driver licensing office. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The grounds to dispute the prohibition vary depending on the type of prohibition. The reality is most prohibitions are upheld. During the review process, you are still prohibited from driving.

Get help

With more information

The BC government website includes information on driving prohibitions and suspensions.

Web: gov.bc.ca/driving

With its Driver Improvement Program, the Superintendent of Motor Vehicles identifies high-risk drivers and encourages them to improve their driving habits.

Web: gov.bc.ca/driving


[updated May 2018]

The above was last reviewed for legal accuracy by Jeremy Carr, Jeremy Carr & Associates.

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