Motor Vehicle Offences for Drugs and Alcohol (13:IX)
A. Approved Screening Devices
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, 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 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.
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 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)
The Motor Vehicle Act s 215.41 makes it an offence either to drive or to be in the care or control of a motor vehicle with a blood-alcohol reading in excess of 80 milligrams of alcohol per 100 millilitres of blood (.08; "fail"). There is also a separate offence for driving or being in care or control of a vehicle with a blood-alcohol reading in excess of 50 milligrams of alcohol per 100 millilitres of blood (.05; "warn"). Care or control of a vehicle means occupying the driver’s seat with access to the ignition key, even if the vehicle is parked.
Consequences for these offences depend on a number of circumstances, including a history of previous offences. For clarity, these consequences are listed below, along with an indication which offences they apply to.
Beyond the penalties noted below, receiving multiple penalties, or just one 90-day driving prohibition or Criminal Code penalty, can result in referral to the Responsible Driving Program (RDP), or the Ignition Interlock Program (IIP). The RDP is a course taken over 8 or 16 hours, whereas the IIP requires the installation of an interlock device in the driver’s vehicle. For more information, consult the Road Safety BC website.
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:
- Seize your driver’s license
- Issue you a 'Notice of Prohibition' which will start immediately – removing your driving privileges – the length of which depends on prior IRP convictions (if any)
- 3-day driving prohibition if it is the first time caught in the warn range
- 7-day driving prohibition if it is the second time caught in the warn range within five years; or
- 30-day driving prohibition if it is the third time caught in the warn range within five years.
If you register in the FAIL (.08) range, or refuse to provide a sample, the police may, at their discretion:
- Seize your driver’s license
- 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.
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 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 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 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
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 (Motor Vehicle Act 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 in advance of the hearing at any ICBC driver’s licensing office or by faxing them to RoadSafetyBC at 250-356-6544.
For both oral hearings and written reviews, all written information you wish to be considered in your review hearing should be provided to the Superintendent by 4:30 p.m., two days prior to the date and time of the scheduled review.
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.
It is highly recommended that individuals seeking to challenge an Immediate Roadside Prohibition be represented by a lawyer.
b) What Happens if you Lose the Hearing?
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
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.
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.
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. 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.
C. Drug Offences
The BC government has passed legislation amending the MVA which received royal assent on May 17, 2018, and has come into force by regulation of the Lieutenant Governor in Council.
The new legislation includes a number of amendments. Section 25(10.101) allows the Lieutenant Governor in Council to impose a condition on driver’s licenses that those who hold the license must not operate a motor vehicle while having a prescribed drug in their body.
Section 90.3(2.1) allows a peace officer to demand a sample of a bodily substance from a driver who holds a driver's licence on which a condition is imposed under section 25 (10.101) for analysis by means of approved drug screening equipment. If the analysis indicates the driver has a prescribed drug in their body, the peace officer may serve them with a notice of license suspension and request the driver to surrender their license. Section 90.3(3) allows the peace officer to apply the same consequence to a driver who declines to provide such a sample.
Similar amendments alter much of the MVA regulations for driving with alcohol in your system so that driving with a prescribed drug in your system can result in the same penalties. There is no blood drug concentration specified yet. It will be possible for a combination of drugs and alcohol to trigger penalties even if the blood concentration of each substance is less than the legal limit (section 94.1).
D. Federal Alcohol and Drug Offences
The Criminal Code provides a number of federal criminal offences related to impaired driving. These are serious criminal offences, with significant possible penalties. Individuals facing Criminal Code charges are strongly encouraged to consult with a lawyer.
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 Henry, (1971), 5 CCC (2d) 201 (BC Co Ct); R v James (1974), 17 CCC (2d) 221 (BCSC); and R v Faer (1975), 26 CCC (2d) 327 (Sask CA). Since it is difficult to conceive of a situation when driving is not also care or control, the Crown will almost always charge care or control.
The court in R v Kienapple , 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: R v Toews, , 2 S.C.R. 119.
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 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 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,  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 breathalyser technician. However, the breathalyser technician or registered analyst must have the requisite qualifications.
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 R. v. Bernshaw,  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 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 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: R v Elgie (1987), 48 MVR 103 (BCCA); R v Manninen,  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,  2 SCR 3. The Court in 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)).
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.
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. 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.
- 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 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 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.
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.
1. Provincial Driving Prohibitions for Criminal Convictions
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 — 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 — 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 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 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
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:
- I did not operate or have care or control of a motor vehicle;
- The concentration of alcohol in my blood did not exceed 80 milligrams of alcohol in 100 millilitres of blood within three hours.
- I did not refuse or fail to comply with a demand under section 320.15 of the Criminal Code to supply a breath or blood sample.
- 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.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 21, 2020.|
|© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.|