Drunk driving laws & changes

On June 15, 2012, B.C.’s ‘tough’ impaired driving laws came back (after being revised). But, will they stay? Time will tell.

B.C. has undergone some big changes in the past two years regarding its impaired driving laws. This topic is HUGE and COMPLEX; but, despite that, I will do my best summarize the changes and the resulting issues.

Here’s the story….

Under the previous law/regime, the process of dealing with a drunk driver was generally as follows: a police officer stops a vehicle and, upon having a reasonable suspicion that there is alcohol in the driver’s body, requests that the driver submit to/blow into a roadside screening device, which renders a pass, warn, or fail reading. If the driver blows a ‘fail’, then the driver is taken to the police station and is further submitted to an approved breathalyzer machine that measures the person’s blood-alcohol level.

If the person’s blood alcohol level is over 0.08 (when measured by the approved breathalyzer machine), then documents are forwarded from police to crown prosecutors who decide whether or not to proceed with criminal charges: Police don’t lay charges. If convicted, a judge then penalizes/sentences the drunk driver.

In addition to the likely criminal charges, those drivers who blow readings above 0.08 into the approved breathalyzer machine were also subject to a 90 day administrative driving prohibition (under provincial law): ADP Fact Sheet.

Under the ‘tough’ new law, which came in on September 20, 2010, the process was different. It was, put very simply, as follows: the police officer stops a vehicle and, upon having a reasonable suspicion that there is alcohol in the driver’s body, requests that the driver submit to/blow into a screening device. If the driver blows a ‘fail’ on the screening device, the driver receives an automatic 90 day driving suspension and is then subject to monetary penalties and mandatory programs, such as a responsible driving program and an ignition interlock device (to be installed into the person’s vehicle). The penalties/programs could cost the suspended driver over $4,000.00.

To clarify, under that new law, the stiff penalties flowed from the ‘fail’ reading on a screening device that was issued by the officer (and did not flow from a judge).

It was my understanding, too, that less criminal charges were being laid on drunk drivers (in court); instead, they were being dealt roadside by police under this new system. Of course, this was a faster way of dealing with drunk drivers.

Also, the process to challenge/review the ‘fail’ reading was quite minimal (and insufficient). This was significant.

On November 30, 2011, in Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639. Mr. Justice Sigurdson ruled that the new law unreasonably infringes section 8 of the Charter, specifically for those people who blew a ‘fail’. Put simply, the Court said that, based on the significant penalties, the B.C. Government should have created a reasonable and meaningful review process where a driver can challenge the results of the screening device (after blowing a ‘fail’). As it stood, the law needed to be changed.

The B.C. Government chose not to appeal the decision and, instead, chose to amend the law. In the meantime, the ‘tough’ impaired driving law was suspended.

After the decision, the B.C. Justice Minister, Shirley Bond, said that only minor changes were needed to fix the law. She was seemingly correct because, based on Mr. Justice Sigurdson’s decision, you’d expect the B.C. Government to do one of three things: lower the penalties, change the review/appeal process, or do both.

According to peppered media reports, on June 15, 2012, the ‘tough’ impaired driving laws came back (after some revision). The revisions are: 1) police now have to tell drivers that they are entitled to a second blow test; 2) police must now ‘swear’ their reports that they submit; and 3) police must now submit documents confirming the accuracy of the screening devices: Drunk driving laws return after tweaking.

Police are already applying the amended law: Traffic police catch drunk driver 18 minutes after new drinking and driving law came into effect.

Justice Minister Shirley Bond says the changes go beyond what the Court was asking for.

But, do you really think they do?

I hate to sound cynical, but I don’t think the issues were adequately addressed. For one, people are seemingly still denied a full (or adequate) hearing. On that issue, I would have expected the B.C. Government to do more in creating a meaningful review process, such as allowing for police officers to be cross-examined on their evidence, rather than simply submitting ‘sworn’ documents.

Now, don’t get me wrong: lowering (or better yet, eliminating) drunk drivers on the road is an incredibly important and laudable goal. Drinking and driving is beyond stupid. But, Charter rights (and the related fair process) need to be respected as these Charter rights separate Canada from less ‘desirable’ countries.

These changes might be adequate and pass Charter scrutiny. Or they might not. Time will tell.

Whatever happens, I hope that the B.C. Government (regardless of political affiliation) starts taking its time with drafting legislation.

Bad laws waste time and money and both are a scarcity.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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