BC's Immediate Roadside Prohibition Declared to be Unconstitutional

IRP Declared UnconstitutionalThe BC Supreme Court has declared the Immediate Roadside Prohibition to be, in part, an infringement of the right to be free from unreasonable search and seizure. Read more about the IRP at www.hewsonlaw.com/blog.

Hewson Law

Richard Hewson is happy to introduce his new blog and website, www.HewsonLaw.com. Click on the link to go to the site, and stop by the Criminal Law Blog.

Decriminalization of Impaired Driving

Despite claims that BC's new impaired driving laws would be the toughest in Canada, it is now clear that former Premier Gordon Campbell and the BC Liberals have effectively decriminalized impaired driving. In almost all cases, drunk driving is no longer treated as a crime. Drunk drivers in BC are no longer being given criminal records, Criminal Code driving prohibitions and fines, or jail time. The government is content to rely on administrative penalties imposed at the roadside by the police. In Revelstoke last week, a driver with six prior convictions for impaired driving crimes was found drunk behind the wheel, and released with just a 90 day prohibition. Six months ago, he could have gone to jail for two years.

Reports are beginning to appear in the media. In The Province, Ethan Baron wrote, "Drunk driving is not a crime. As absurd as that statement sounds, it's becoming the reality in BC, thanks to the province's new drinking driving legislation."  Jeff Nagel quoted a Vancouver lawyer who called the new legislation "a get-out-of-jail-free card."

Immediate Roadside Prohibition

You’ve received a 90 day Immediate Roadside Prohibition. What now?

If you have been pulled over by the police and either blew a “Fail” into a roadside Approved Screening Device (ASD), or you refused to provide a breath sample, the officer will have served you with an Immediate Roadside Prohibition under section 215.41 of the British Columbia Motor Vehicle Act.

The officer will impound your vehicle for 30 days, and serve you with a Notice of Driving Prohibition. This means you are immediately prohibited from driving for 90 days.

You only have 7 days to file for a review of this driving prohibition.

You have the right to have this prohibition reviewed, and possibly get the prohibition revoked or shortened, but you must act quickly. You can file an application to review the prohibition at the BC Access centre. You will have to pay a $100 filing fee, which is non-refundable.

What will happen if I don’t fight this?

There are many consequences of being served with an Immediate Roadside Prohibition.

• You immediately lose your driving privileges for 90 days.
• Your vehicle is impounded for 30 days, and you are responsible for paying the towing and storage fees estimated at $700.
• You must pay a $500 monetary penalty within 30 days.
• You will be required to register in and participate in the Responsible Driver Program before you can apply to have your license reinstated. The tuition for the program is $985.60. You must pay the tuition before your registration will be processed, and there is a waiting list for this course of approximately 9 months. The program is delivered by Stroh Health Care.
• There is a $250 license re-instatement fee.
• You will receive a Driver Risk Premium bill for at least $905, if you have no other tickets, from ICBC.
• When you are eligible to drive again, you must install Ignition Interlock in any vehicle you drive for a period of one year. You are responsible for the installation and monitoring fees of approximately $1,730 a year, depending on how far you are from an installation location. Installation is done by Guardian Interlock at several locations across the province.

In total, being served with an Immediate Roadside Prohibition will cost you close to $5,000 before you can legally operate a motor vehicle again in British Columbia.

How can I get the prohibition cancelled?

The grounds on which the prohibition might be cancelled are limited. The Superintendent will not consider hardship or compassionate grounds. You must provide evidence that you were not driving, or that you did not blow a “Fail” into the ASD.



Changes to the British Columbia Motor Vehicle Act

The New Penalties for Blowing over .05 in British Columbia

Several changes to British Columbia’s Motor Vehicle Act take effect on September 20, 2010. These amendments create a new regime of driving prohibitions. In the past, drivers who failed a roadside screening device, or had a blood alcohol concentration over .08, have faced driving prohibitions and fines. Drivers will now be subject to driving prohibitions and monetary penalties if they blow a “Warn” on a roadside screening device, indicating a blood alcohol concentration over .05. You can read about the new penalties and prohibitions on the Superintendent of Motor Vehicles website here. 

These driving prohibitions take effect immediately, however you still have the right to apply for a review of the prohibition within 7 days of the day the Notice of Prohibition was served on you.

What is Considered a “First” Prohibition?

These new amendments don’t apply to any driving prohibitions that were issued before September 20, 2010. If you receive a prohibition on September 20, 2010, it will be considered a first prohibition for the purposes of the new regime. The Superintendent, however, can still prohibit anyone with an unsatisfactory driving record.

Your Right to Request a Second Roadside Breath Test

While you could face penalties if you blow a ‘warn’ on a roadside screening device, you now have the right to ask to blow again on a different screening device. The result from the second test is the result that the police must rely on.

If Convicted of Impaired Driving in 2011, Prohibitions Can Be Shortened

Anyone convicted of Impaired Driving today faces at least a one year driving prohibition. Soon, the Motor Vehicle Act will be amended so that if you are convicted of Impaired Driving, Driving Over ’80 or Refusal, and are subject to a driving prohibition under the Criminal Code, you can have the period of the license suspension shortened after completing a specific portion of the suspension.

If you register and participate in the Responsible Driver Program, and you have the Superintendent’s approval, then during the remaining period of the suspension, you may apply to drive a vehicle that is equipped with an Ignition Interlock device. This means that many people convicted of impaired driving will now be able to drive again much earlier than they would have in the past.

A person has the right to apply for a driver's license after the expiry of:

• in the case of a first conviction, 3 months,
• in the case of a second conviction, 6 months, or
• in the case of a third conviction or an additional subsequent conviction, 12 months

A person must drive a car equipped with Ignition Interlock for:

• in the case of a first or a second conviction, for the longer of the remaining portion of any driving prohibition
• in the case of a third conviction, at least 5 years

Are These Changes Here to Stay?

The amounts of the monetary penalties and the fact that these driving prohibitions take effect immediately may re-open an argument that was made in a case called Buhlers v. British Columbia (Superintendent of Motor Vehicles), 1999 BCCA 114. In Buhlers, the Court considered the constitutionality of the provincial legislation, and whether it created a violation of Section 7 of the Charter of Rights and Freedoms.

Only the Federal Government can make legislation dealing with Criminal Law. If the Province is found to be punishing criminal conduct, then they are dealing in an area in which only the Federal Government is allowed to make laws.

Section 7 of the Charter provides: Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.

In Buhlers, the Court found that the purpose of the legislation was merely regulating driver’s licences and enhancing public safety on the highway, not creating a criminal offence. In Buhlers, the Court also said that holding a valid driver's licence and driving of a motor vehicle within the Province of British Columbia is a privilege, not a right or liberty protected under the Charter of Rights and Freedoms.

It is possible that these new changes to the B.C. Motor Vehicle Act go beyond regulating driver’s licences and cross into the exclusively Federal area of Criminal Law.