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Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"
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Motor Vehicle Offences for Drugs and Alcohol (13:IX) (view source)
Revision as of 18:41, 8 August 2023
, 18:41, 8 August 2023no edit summary
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{{REVIEWED LSLAP | date= July | {{REVIEWED LSLAP | date= July 1, 2023}} | ||
{{LSLAP Manual TOC|expanded = motor}} | {{LSLAP Manual TOC|expanded = motor}} | ||
==A. Approved Screening Devices== | ==A. Approved Screening Devices== | ||
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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: | 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) | :a) The officer must have an ASD in their possession when they ask the driver to provide the sample; and | ||
:b) | :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 215.41(4) of the ''Motor Vehicle Act'' or under s 320.15(1) of the ''Criminal Code'' or an Immediate Roadside Prohibition (IRP). | 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 215.41(4) of the ''Motor Vehicle Act'' or under s 320.15(1) of the ''Criminal Code'' or an Immediate Roadside Prohibition (IRP). | ||
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For more information on the monetary penalty and potential referral to remedial driving programs, see: https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/roadsafetybc/prohibitions/alcohol | For more information on the monetary penalty and potential referral to remedial driving programs, see: https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/roadsafetybc/prohibitions/alcohol | ||
=== 3. What Happens if | === 3. 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. | 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. | ||
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Under Criminal Code s 320.19(1), impaired driving is a hybrid offence. For both summary and indictment, the minimum punishments are the same: | 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) | :(i) For a first offence, a fine of $1,000, | ||
:(ii) | :(ii) For a second offence, a term of imprisonment for a term of 30 days, and | ||
:(iii) | :(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. | 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. | ||
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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)): | 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 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 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 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. | Note that these prohibitions are in addition to any other penalty that applies. | ||
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* 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. | * 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. | ||
==E. Alcohol and Cannabis in Vehicles== | |||
=== 1. Alcohol in Vehicles === | |||
Section 76 of the Liquor Control and Licensing Act sets out that a person must not drive or otherwise exercise control over the operation of a motor vehicle, whether or not it is in motion, while there is liquor in the person's possession or in the motor vehicle. However, the above does not apply: | |||
*a) If the liquor is in a container that is unbroken and has an unopened seal; | |||
*b) If the liquor is being transported, sold or served in accordance with the terms and conditions of a licence, authorization or permit; or | |||
*c) If the liquor is not readily accessible by the driver and passengers. | |||
Violation of section 76 of the Liquor Control and Licensing Act can result in being issued a ticket for $230. | |||
=== 2. Cannabis in Vehicles === | |||
Section 65 of the Cannabis Control and Licensing Act sets out that cannabis cannot be consumed while a vehicle or boat is being operated. Neither the driver nor passenger can consumer cannabis whether the vehicle is in motion or not. | |||
* Consuming cannabis while operating a vehicle or boat can result in a ticket of $575; | |||
* Consuming cannabis in a vehicle or boat operated by another person can result in a ticket of $230; | |||
* Operating a vehicle or boat while knowing that another person is smoking or vaping cannabis in it can result in a ticket of $230. | |||
Section 81 of the Cannabis Control and Licensing Act sets out that an adult must not operate a vehicle while the adult has personal possession of cannabis or there is cannabis in the vehicle. However, the above does not apply: | |||
*a) If the cannabis was produced by a federal license holder and is still in its original unopened packaging; | |||
*b) If the cannabis is not readily accessible to the driver and any passengers in the vehicle; or | |||
*c) If one or more cannabis plants are not budding or flowering. | |||
Violation of section 81 can result in being issued a ticket for $230. | |||
{{LSLAP Manual Navbox|type=chapters8-14}} | {{LSLAP Manual Navbox|type=chapters8-14}} | ||