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Law-Matters

Decriminalizing drunk driving!?

Last week, I wrote about the new, ‘tough’ impaired driving law. When I described the new law (the Immediate Roadside Prohibition Program), I gave a general description the impaired driving laws in BC. As a result, I went ‘easy’ on it; I didn’t describe this program for what it is... Put bluntly, it is BAD law.

As said last week, the new process/law allows police officers, rather than judges, to dole out the penalties for impaired driving: Drunk Driving Laws and Changes. This is true because the penalties now flow from the ‘fail’ reading on the screening device that is administrated (roadside) by the police officer (rather than the judge who sentences the offender after criminal charges have been laid and after the offender goes to court). I’ll explain…

Under the new law, alleged impaired driving offenders don’t typically go to court, as the new law/process allows police officers to deal with offenders on an expedited basis (on the side of the road).

Remember that, under the ‘old’ process (of dealing with impaired drivers under the Criminal Code), police had to bring the suspected impaired driver to the police station to blow into an approved breathalyser machine. From the results of the breathalyser (readings over 0.08), criminal charges would be laid against the impaired driver.

Keep in mind that the ‘old process’ required police officers to spend A LOT of time on each impaired driving investigation. Alternatively, the new program saves police A LOT of time, as the drunk driver doesn’t have to be taken the station for the breathalyser test (as the screening device is sufficient to penalize the impaired driver).

So, with the new process, less impaired drivers were (not surprisingly) taken to the police station to blow into the approved breathalyser machine and, as a result, less criminal charges were laid. Said a different way, less impaired drivers are dealt with under the Criminal Code or in criminal court.

To some people, this was great: impaired drivers were no longer “clogging” (hate that term) the courts. But, those people (who are rejoicing) might be missing the bigger picture…

Now, last week, I described how the new process doesn’t allow for an effective appeal process, which was the ruling in Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639.

Because of that ruling, the B.C. Government made some changes to the law. Those changes still don’t seem to address the issue of an effective appeal process. But, that isn’t the only thing wrong with the new process…

Previously, I referred to the new law as being ‘tough’. Everyone does… This is the common public perception (and it’s the ‘SPIN’ that has been given to it).

But, are they actually ‘tough’? Short answer: no.

When you think of ‘tough’, you likely think about criminal records, thousands of dollars in fines, minimum 12 month driving prohibition and possible jail time. You may be surprised to know that these were the penalties that impaired drivers received after getting a criminal conviction under the ‘old’ process (s. 255 and 259 of the Criminal Code). Under the old process, impaired drivers were also required to submit to (driving) programs and received a 90 day driving prohibition (under provincial law): ADP Fact Sheet.

Under the Criminal Code, there were even minimum jail sentences to subsequent offenders (s. 255): Criminal Code.

So, what are the new ‘tough’ penalties? As said last week, the driver receives an automatic 90 day driving suspension, which is, really, the same as before, under the ‘old process’: IRP Penalties. The impaired drivers are also subject to fines and mandatory programs (under provincial law), which is, for the most part, the same as before (after an impaired driver was convicted in criminal court): IRP Penalty Fact Sheet.

You may be shocked, but consider that under the ‘new’ process, impaired drivers (no matter how drunk they are) can be back on the road after their 90 day prohibition expires! If they aren’t charged criminally (and don’t go to criminal court), there is no criminal record, no potential jail time, and no 12 month mandatory minimum driving prohibition.

As you can see, under the Criminal Code (the previously ‘used’ process), impaired driving was treated as a serious Criminal offence (which it is). Under the new program, impaired driving has been DECRIMINALIZED. I hate to say it, but impaired drivers are being ‘ticketed’ (albeit, with a very harsh ticket). Doesn’t sound too ‘tough’ to me…

Now, you may not agree with me. That is fine. The point of my column isn’t to convince you to ‘side with me’. Rather, it is intended to encourage readers to think about issues and conduct their own research (instead of blindly relying on someone else’s opinion, including my own).

My suggestion: think about and look into the issue. You may be surprised (and outraged) about what you learn.

**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.



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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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