BC changes impaired driving laws after court challenge
British Columbia is introducing changes to the review process for immediate roadside prohibitions (IRPs). Among the changes, police must let drivers know their right to challenge a first “Fair” or “Warn” result by doing a second test.
The IRP, also known as the Automatic Roadside Prohibition (ARP), was a controversial aspect of B.C.’s new laws.
In September 2010, B.C. introduced new impaired driving laws that, among other changes, saw drivers who provided a failing breath sample above 0.08 per cent blood-alcohol content (BAC) or refused to provide a breath sample at the roadside received an immediate, 90-day driving ban and a $500 fine. As well, they will have their vehicle impounded for 30 days as part of the automatic roadside prohibition (ARP).
In November 2011, a B.C. judge declared part of the newly-introduced impaired driving law unconstitutional. In a decision released on November 30, Justice Jon Sigurdson wrote: “The ARP [automatic roadside prohibition] legislation infringes section 8 of the Charter insofar as it concerns the prohibition, penalty and costs arising from the screening device registering a “fail” reading over 0.08,” he said. “This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society.” The court granted government’s request that the declaration of unconstitutionality be suspended until June 30, 2012, to allow time to amend the law.
The government said the proposed Motor Vehicle Act amendments will “enhance fairness and strengthen public confidence in the process” for drivers whose roadside breath samples yield either “warn” or “fail” readings on an approved screening device (ASD).
“The amendments are critical to sustain the public safety benefits and justice reform facilitated by providing police with tough, immediate roadside prohibitions, as an alternative to pursuing the full criminal process for those who provide a failing breath sample,” said a statement.
The proposed changes are designed to address the court’s concerns about providing failing drivers with a way to meaningfully challenge the roadside breath-test results, namely:
- Making it mandatory for police to advise drivers of their right to challenge the first test result by completing a second test. Currently, officers are not legally required to inform drivers of this right.
- Requiring police to advise drivers that the lower of the two readings will prevail. Under the existing law, when a driver opts to take a second test, its result prevails – higher or lower.
The government said other amendments are designed to improve administrative fairness and provide drivers with the opportunity for a more rigorous review through the Office of the Superintendent of Motor Vehicles:
- Expanding the grounds for administrative review to include the reliability of the ASD results, whether police advised the driver of his or her right to a second test, whether police conducted that second test on a second ASD, and whether the IRP was issued on the basis of the lowest reading. These grounds relate to the expanded requirements of police officers at the roadside under the amendments.
- Requiring sworn reports from police to the superintendent. This new requirement will support the reliability of evidence officers submit to support IRPs.
- Requiring police to submit documentation about the calibration of the ASD device or devices used. This new requirement will support the reliability of the ASD readings under review.
The amendments will see IRPs resume as an alternative to the Criminal Code process for drivers found in excess of the legal limit of .08 per cent blood-alcohol content (BAC). Police will retain the right to pursue the Criminal Code process, which has been the default approach since the B.C. Supreme Court ruling.
