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

Motor Vehicle Offences for Drugs and Alcohol (13:IX) (view source)

Revision as of 03:29, 9 August 2016

1,726 bytes added , 03:29, 9 August 2016

no edit summary

LSLAP

5,109

edits

@@ Line 1: / Line 1: @@
 {{LSLAP Manual TOC|expanded = motor}}
-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. Screening Devices=
-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.
+Pursuant to s. 254(2) 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 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 breathalyser 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''.
+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 Motor Vehicle Act 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 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.
-=== 2. Exceeding 80 Milligrams (.08) ===
+= B. Provincial Alcohol Offences=
+The Motor Vehicle Act 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). There is also a separate offences for driving or being in car or control of a 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.
-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.
+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.
-==== a) Penalties ====
+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 RoadSafetyBC website at http://www2.gov.bc.ca/gov/content/ transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-remedial-programs
-If the driver’s breath sample registers a “fail” on the ASD, the driver will:
+==1. Immediate Roadside Prohibitions==
-*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.
+If an officer suspects you of being affected by alcohol while driving or in care or control, they may ask for a sample of breath into an ASD. You have the right to have a second sample taken, and to have the lower reading prevail.
-=== 3. Exceeding 50 Milligrams (.05) ===
+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.
-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.
+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
-==== a) Penalties ====
+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.
-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:
+===i) Challenging Immediate Roadside Prohibition (issued for 3, 7, 30, or 90 days)===
-*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.
+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 (Motor Vehicle Act s 215.48(1)) by attending any driver licensing center, and complete and submit the form, “Immediate Roadside Prohibition – Application for Review – Section 215.48 Motor Vehicle Act”. Fill in the blanks and check all boxes that indicate the ‘grounds for review.’ The grounds for review are:
-*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.
+*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.
-=== 4. Refusing to Provide a Breath Sample ===
+The applicant may attach any statements or evidences for the superintendent’s review. Please note that the filing of an application for review does not stay the driving prohibition. (Motor Vehicle Act s 215.48)
-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.
+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
-==== a) Penalties ====
+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.
-If the driver refuses or fails to comply with the breath demand without a reasonable excuse, the driver will:
+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.
-*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 decision will be rendered within 21 days from the date the driving prohibition is issued.
-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:
+Possible review outcomes include:
-*Not the driver or in care or control of a motor vehicle;
+# 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.
-*Not advised of right to a second test on an ASD;
+# Driving prohibition confirmed: terms of driving prohibition will remain unchanged.
-*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)
+It is highly recommended that individuals seeking to challenge an immediate roadside prohibition be represented by a lawyer.
-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.
+==== a) What Happens if you Lose the Hearing? ====
-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.
+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, and appeals can generally only be made on the basis that the original decision was unreasonable.
-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.
+It is highly recommended that individuals seeking to challenge the administrative decision by way of judicial review be represented by a lawyer.
-A decision will be rendered within 21 days from the date the driving prohibition is issued.
+==2. 12 and 24 Hour Prohibitions==
-Possible review outcomes include:
+-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.
-*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.
+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.
-It is highly recommended that individuals seeking to challenge the administrative decision by way of judicial review be represented by a lawyer.
+hour prohibitions may also lead to a 24 hour impoundment, as discussed above.
+hour suspensions apply only to drivers in the Graduated Licensing Program (“L” or “N” drivers), for violations of the GLP rules. They are in other respects similar to 24 hour prohibitions.
+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.
+== 3. 90 Day Administrative Prohibitions==
+If the police suspect that you have consumed alcohol and had care or control of a motor vehicle within the preceding three hours, the police may demand a breath or blood sample. If that sample indicates a BAC over .08, or you refuse a sample, you will be issued a 90-day Administrative Driving Prohibition. This is in addition to federal criminal charges you may face.
+To apply for a review of the ADP the driver must do so within seven days from the date he or she receives the Notice of Driving Prohibition.
+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.
+*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.
+==4. Provincial 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:
+* upon your 1st Conviction — a 1-3 year driving prohibition
+* upon your 2nd Conviction — a 2-5 year driving prohibition
+* upon your 3rd Conviction — a minimum 3 year to-lifetime driving prohibition)
 === 6. Twelve and 24-Hour Suspensions and 90-Day Driving Prohibitions ===

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

Motor Vehicle Offences for Drugs and Alcohol (13:IX) (view source)

Revision as of 03:29, 9 August 2016

Navigation menu

Search