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

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 Motor Vehicle Act or under s 253(5) of the Criminal Code.

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.

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

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:

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)

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.  

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.

 

*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.

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.  

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)).

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 Orbanski and 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)).

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.