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The government of British Columbia is determined to catch the impaired drivers on the province’s roads and to accomplish this Herculean task, is about to implement on September 20, 2010 what will be the toughest legislation in the country. In the process of doing so, however, it may very well be driving right over our right to be presumed innocent until proven guilty.
According to a September 5, 2010 article in Nelson Life, the Solicitor General, Michael de Jong is expecting some challenges under the Charter of Rights and Freedoms.
( http://www.nelsonlife.com/2010/09/05/impaired-driving-instant-punishment-could-be-challenged/ )
But the government is determined to go ahead regardless, and if you drink and drive in BC after the 19th you can count on paying the price to the tune of between $600 and $3,750 with more time off the road. There will be no mercy for first-time offenders either.
The idea behind the new, swift and severe penalties is to catch the drivers with blood-alcohol levels between .05 and .08 per cent. Studies have shown that even at this lower level co-ordination, sensitivity to brightness and depth perception may be compromised. Reaction times are slower and responses are less precise. In other words – you are a danger to yourself and others on the road. Impaired driving kills over 100 people and injures more than 3,000 each year in British Columbia and many of these tragedies are preventable. Those are pretty shocking statistics, no matter how you look at it.
Locating and identifying impaired drivers has been given an edge with the recent training of RCMP members in the use of the Alcohol Sensor Device (ASD). This is a small hand-held digital tool that will allow police to detect those impaired drivers that do not show the effects of their alcohol consumption (those we say are able to hold their liquor). Expect to see our local officers using ASDs in their stationary road checks. Each police vehicle will carry an ASD. The new legislation, combined with more roadside check-stops and the new devices in each vehicle will most certainly result in a massive increase in revenues for the government, whether or not law enforcement will see much or any of it.
Currently, a police officer may pull you over to the roadside and if you fail the breathalyzer test issue you an immediate 24-hour suspension and impound your vehicle. If warranted, the officer may impose more severe sanctions such as a 90-day administrative driving prohibition and possible criminal charges after additional testing at the station.
After September 19th, however, if you are caught with a blood-alcohol content (BAC) between .05 and .08 or your BAC is above .08, or you refuse to provide a breath sample, watch out!
When you breathe into the roadside screening device it will register a reading of Pass, Warn or Fail.
‘Pass’ means that your breath sample contains less than .05 per cent alcohol.
‘Warn’ indicates an alcohol level between .05 and .08 and this is where the fur begins to fly.
If it is the first time within a 5-year period, the following will happen:
- You will lose your driver’s license for 3 days
- You may also lose your vehicle for 3 days. If this happens you will pay all related towing and storage fees (an estimated $150).
- You will pay a $200 administrative driving penalty and a $250 driver’s license re-instatement fee.
This totals to a cost to you of $600, perhaps making that extra drink at the bar not a good investment.
For a second-time offense within a 5-year period:
- You will lose your driver’s license immediately for 7 days.
- You may also lose your vehicle for 7 days. The related towing and storage fees will cost you an estimated $210.
- You will be charged a $300 penalty and a $250 driver’s license re-instatement fee.
Your total cost will be $760.
If you haven’t learned your lesson by this time and you want to try for a third offense:
- You will immediately lose your license for 30 days.
- Your vehicle will be impounded for 30 days and you will pay a towing and storage fee of $700
- The administrative driving penalty will be $400 and the license re-instatement fee will be $250
- Before your license is returned to you, you will have to complete a Responsible Drivers Program ($880) – and – you will have to use an Ignition Interlock Device ($1,420) whenever you drive, for a whole year.
(If you don’t know how frustrating and down-right embarrassing that can be, the device is wired into your vehicle’s ignition. Every time you want to start the engine you are required to provide a breath sample and if you don’t or won’t, well the vehicle just won’t start. Even after you get on the road, you will have to undergo random breath tests along the way to ensure you remain alcohol-free while the vehicle is engaged. Everything is recorded on a handset, including any attempts you might make to dismantle it. If you fail the test while driving, there will be repeated warnings, then the horn will sound and your hazard lights will flash until you shut it down).
How does $3,650 sound to you?
‘Fail’ means your blood alcohol level is above .08 per cent and/or you fail to provide a breath sample:
- You will immediately lose your driver’s license for 90 days and your vehicle for 30 days.
- Towing and storage fees are $700.
- The administrative penalty is $500 and the driver’s license re-instatement fee is $250
- You will have to complete the Responsible Drivers Program ($880) and use an Ignition Interlock Device ($1,420) whenever you drive for a full year.
- The total cost of your night-on-the-town will be about $3,750 and you may face charges under the Criminal Code of Canada.
If you are a new driver and are in the Graduated Licensing Program (“L” and “N” drivers), existing sanctions will continue to be applied at the discretion of the police. If you drive with less than .05 per cent alcohol in your blood or if there are drugs in your system, you will face the following penalties:
- a 12-hour immediate roadside license suspension (24-hour for drugs)
- You will have to go into a review process through the Superintendent of Motor Vehicles which will generate further driving prohibitions.
- It will cost you a $250 license re-instatement fee.
- If GLP drivers blow a Warn or Fail, they will be subject to the regular impaired driving penalties in addition to their GLP-specific consequences and reviews.
The new roadside-issued 90-day bans mean officers will no longer need to take drivers down to the station for an additional breath analysis in order to impose a driving ban longer than 24 hours as has been the case up until now.
If you receive a roadside prohibition, you will still have the opportunity to have it reviewed by the Superintendent of Motor Vehicles as long as you file an application within 7 days. The review fees will be doubled to $100 for a written review and $200 for an oral review, in order to offset some of the costs currently covered by the taxpayers.
If you still want to party, you can always ride home in style in a taxi or with a designated driver. Both sound a whole lot cheaper than taking a chance that the police are randomly checking vehicles somewhere else that night.
Before making recent changes to the Criminal Code, the Justice Department cited studies from Australia, New Zealand, and Ireland showing that drunk-driving deaths decreased by as much as 36 per cent after random breath testing was introduced.
However, while it would unquestionably be nice to make the roads a safer place to be, civil rights proponents and others don’t think that, in the big picture, it is worth trading our freedom and privacy for such ‘protection’. Both they and the government itself, are pretty sure that the new scheme will face a Charter challenge.
Why a novice driver should not be issued a 24 hour prohibition notice WITHOUT a roadside test. These reasons also show WHY an officer cannot use the 24 hour prohibition in the FIRST step of their investigation into a novice driver and drinking and driving.
This is all based on the novice driver having a BAC of below .05.
1) Section 215 – 24 Hour Prohibition
The 24 hour prohibition was initially designed as a tool for police officers to remove a driver that they suspect of having their driving ability impaired by alcohol from the road for 24 hours by observation only. That’s it, no more. It was not designed to remove a driver from the road for a possible 4 months when the OSMV becomes involved and adds their suspension. Why, because there is no evidence (roadside test) to provide such a harsh penalty. It is reasonable to prohibit a “regular” driver for 24 hours based on observation, but it is NOT reasonable to suspend a novice driver based on “observation”.
When a police officer physically hands the 24 hour notice to the novice driver, it means that the driver is treating them as a driver described in section 215, a driver that is allowed to drive with a BAC of under .05. See below:
Section 215(6) states:
(6) If a driver, who is served with a notice of driving prohibition under subsection (2), forthwith requests a peace officer to administer and does undergo as soon as practicable a test that indicates that his or her blood alcohol level does not exceed 50 mg of alcohol in 100 mL of blood, the prohibition from driving is terminated.
It does not say THIS prohibition (24 hour) is terminated, it says that the prohibition from driving is terminated. This means that the driver, according to this section….is “allowed to drive”.
The “right” stated on the reverse side of the 24 hour prohibition notice states:
“If a blood alcohol test was NOT administered and was not a basis for serving this notice, you have the RIGHT to forthwith request a test to determine your blood level.In the event the test indicates that your blood alcohol level does not exceed 50 milligrams of alcohol in 100 millilitres of blood, the prohibition from driving is terminated. The prohibition will not appear on your driving record and you will be allowed to drive.”
This paragraph, that is ON the notice that the officer is handing the novice driver states it twice, “ the prohibition from driving is terminated.” AND “you will be allowed to drive.” The officer is handing the novice driver a “right”, that legally (in BC) cannot be used by the novice driver to “allow them to drive” because of zero BAC tolerance. If the driver requests a roadside test, and shows BAC of below .05, technically a 12 hour suspension should be issued. In that case, the novice driver is NOT allowed to drive, or the prohibition of driving DOES NOT terminate. If the officer DOES allow the novice driver to drive, it is in contravention of BC laws, Section 90.3. If the officer “hands” you the right, or “treats” you as a certain class of driver, they must also stand by the “right” they have just acknowledged to the novice driver.
2) Section 90.3 – 12 hour suspension
Section 90.3 was legislated when the GLP came into effect. As the novice driver fits the description of “driver” in the section, this is the section that officers must begin their investigation with. Does not section 90.3 mandate, that when a police officer stops a novice driver for suspected drinking and driving, they begin with section 90.3? If we read the following:
Section 90.3(2)
A peace officer may, at any time or place on a highway or industrial road if the peace officer has reasonable and probable grounds to believe that a driver has alcohol in his or her body,
(a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road, and
(b) by demand made to that driver, require the driver to promptly provide a sample of breath that, in the opinion of the peace officer, is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling that sample of breath to be taken.
The word “may” in the first paragraph is a bit misleading. Many use this as the officer “may” do any of the following section. The way it is written, it means ONLY that the officer “may” pull over the novice driver, but once pulled over, a roadside test MUST be conducted. This is determined by the one small word…..”and”, at the end of section 90.3 (2)(a). Once (a) is accomplished, (b) MUST be done if we read “by demand made to that driver, require the driver to promptly provide a sample of breath that…..”.
A 12 hour suspension CANNOT be given to a novice driver without a roadside test. This is confirmed by:
Section 90.3(3) states: If
(a) a driver, without a reasonable excuse, fails or refuses to comply with a demand made under subsection (2) (b), or
(b) the peace officer, pursuant to an analysis of the breath of the driver under subsection (2) (b), has reasonable and probable grounds to believe that the driver has alcohol in his or her body,
If, either one of these two section are met…the 12 hour suspension can proceed. Section (a) makes sense, common in all “drinking and driving” sections. Section (b) says that the officer can only issue the 12 hour “pursuant to an analysis of breath under subsection (2)(b).” A roadside test is mandatory.
Points to ponder:
1) Does section 215 describe a driver that is allowed to drive with a BAC of below
.05?
2) Does section 90.3 describe a driver that is to have ZERO BAC while driving?
Which of the two should be used to start an investigation?
3) Why does a 24 hour notice only “work” or “stick” if the novice driver DOES NOT
use their right noted in the section and on the reverse side of the 24 hour notice? If they request a roadside test, and are below .05, legally the prohibition of driving is not terminated and they are not allowed to drive, legally.
4) Is it reasonable for a “regular” driver to be prohibited from driving for 24 hours
based on observation alone?
5) Is it reasonable for a novice driver to lose their license for up to 4 months based
on observation alone? Without the ability to use the right on the 24 hour notice?
6) By the officer demanding a roadside test at the beginning of their investigation
of suspected drinking and driving of a novice driver, they eliminated the right on the back of the 24 hour notice!
7) Why was section 90.3 legislated then, why not just use the 24 hour prohibition?
Yes, I do agree that a novice driver should face all consequences of drinking and driving! If they are stopped, and demanded to provide a breath sample…they are to face either a 12 hour suspension (if under .05), a 24 hour prohibition (if over .05) and impaired driving (if over .08)! This also eliminates the right on the reverse side of the 24 hour notice for that driver. Don’t you see, this is the way section 90.3 begins, why it was legislated!!!
The 24 hour prohibition driver description fits a novice driver IF they are over .05 BAC. It does not fit a novice driver IF they are below .05. This is a problem. The regular driver can use the right on the back of the notice, the novice driver cannot. This is a problem. Is there an officer out there that can, by observation only, determine a driver to be over .05? No……that is a problem.
Then why, are police still issuing 24 hour prohibitions to novice drivers WITHOUT the use or proof of a roadside test? Why is the OSMV/our government allowing this to happen?
Harry Veuger