C.J. Mayo ~

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

Or, as in the article above, we can let global megacorporations outlaw tomatoes and garlic and force us to eat Genetically Modified Food from Monsanto and others. Decide for yourself but I know which side of this argument I am on. Love an underdog.