BC court says part of drunk driving law is unconstitutional
In September 2010, British Columbia introduced some of the country’s strictest impaired driving laws. Some of the changes to the impaired driving laws included:
- Drivers who provide a failing breath sample above 0.08 per cent blood-alcohol content (BAC) or refuse to provide a breath sample at the roadside will face 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). Criminal charges may also be laid.
- Drivers caught once in the “warn” range (between 0.05 and 0.08 per cent BAC) in a five-year period will face an immediate, three-day driving ban and a $200 fine; a second time, a seven-day ban and a $300 fine; and a third time, a 30-day ban and a $400 fine. Research shows a BAC in that range means a driver is seven times more likely to be in a fatal crash than if they have no alcohol in their body.
- In addition, drivers who blow once in the “fail” range, or three times within five years in the “warn” range, will be required to participate in the rehabilitative Responsible Driver Program. They must also use an ignition interlock device, which tests a driver’s breath for alcohol every time they operate their vehicle, for one year.
Now, a B.C. judge has declared part of the impaired driving law as unconstitutional for turning police into a roadside judge, jury and executioner.
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.”
“In my view, because of the significant prohibition, penalty and cost implications of a “fail” reading, the Province could easily have provided in the legislation a reasonable and meaningful review process where a driver subject to a lengthy automatic roadside prohibition could challenge the results of the screening device,” Justice Sigurdson continued. “This is particularly so considering the Province has legislated to base the consequences of a “fail” reading entirely on the results of the screening device.”
The challenge stemmed from a petition filed by Aman Preet Sivia, who was stopped less than two weeks after the new law came into effect last fall. Sivia was found to be in excess of the .05 blood alcohol restriction and was issued a roadside prohibition by police. Sivia applied to the Superintendent of Motor Vehicles for a review of the decision but was denied.
Justice Sigurdson said the province is using the roadside screenings as evidence to pile “onerous fees and suspensions” onto a Criminal Code charge before that charge is even laid. He suggested drivers are being penalized as if there were Criminal Code charges – but without the required charter safeguards.
Total fees from the fine, impoundment and programs are estimated at $4,000.
“The 90-day licence suspension as well as significant penalties and costs are imposed on motorists who allegedly blow over .08, without those persons being able to meaningfully challenge the results,” he said.
Justice Sigurdson’s full ruling can be read online.
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Alberta now has the toughest drinking & driving laws. They should be strict. If you are stupid enough to get behind the wheel of a car after drinking & that is including illegal drugs as your now in a killing machine you should be charged & lose your licence all together. I personally have no sympathy for anyone that does this. t
I agree with the fact that penalties should equal the crime but it can not be an alleged crime. There is still a charter of rights and freedoms that has to be followed. I am sure others know this but if a 120 lb woman has 1.5oz hard alcohol drink in an hour and happens to also have taken a cold medicine or used her asthma inhaler the road side screening device will fail her.
When the police are allowed to penalize people there must be safeguards to protect innocent persons. A simple minor traffic ticket can be contested in court.
However,in Ontario police can suspend a licence, impound a car if a driver is deemed to be in the “warn range”. This suspension is registered on their drivers record for 3 years. This results in a massive increase in insurance rates for that individual for at least 3 years. But, what if the driver was innocent-what if there was an error. There is no recourse for a potentially innocent person to have their record cleared and would subsequently be faced with thousands of dollars paid for insurance. Innocent until proven guilty is now replaced with the police arbitrarily acting as judge and jury!
It’s plain and simple, don’t drink and drive and you have nothing to worry about.
“police arbitrarily acting as judge and jury!”
An electronic device determines culpability, and the law determines the sentence. The police merely enforce the law (as they should). There is nothing arbitrary about it.
“Innocent until proven guilty”
You are innocent until you blow over the legal amount (i.e. until you are proven guilty)
The requirement to submit to breathalizer test could be said the violate this right, but it has already been found to be a reasonable exception under section 1 of the charter.
But what if the device is wrong! What if the alcohol from the listerine you used just before you got in the car gives a false positive on the brethalizer? There are just too many things that can go wrong, and that is why there are safeguards. When you give the police that much power at the roadside, you are saying it’s OK to live in a country where your rights and freedoms can be trodded on by the state in the name of the common good. Adolf Hitler once said “Without law and order, our nation cannot survive” He didn’t like safeguards to protect the innocent from malicious prosecution either.
Jill. Here’s a real example. You are home sleeping. Your husband calls you at 2:00 because he’s been out drinking with the boys and needs you to go pick him up. Good for him. You get your wallet and get into the car in your PJ’s. You pick up your husband and on the way home you are stopped at a counter attack checkpoint. The officer says he can smell alochol on your breath and orders you to park your car and takes you over to his cruiser and administers the breathalizer test. The device says “WARN”. The car is impounded and you get a 3 day suspension. You have no recourse to challenge the reading of the machine, which was obviously improperly callibrated. Your costs? Cab Home, Towing of Car, Storage, transport to retrieve car, and of course the roadsise suspension will follow you on your driver record for a minimum of 5 years.
And you didn’t drink and drive…
I don’t think we out to be proud to have “one of the toughest drinking laws”. As many above have said, there are so many variations that can affect an incorrect reading – fumes from a passanger, mouthwash,etc….
I think the law needs to focus on the drunk drivers not the couple going out for dinner and having a glass of wine with their dinner- can’t do that anymore now can we. As for you people who say it’s simple- don’t drink-no problem. Then to you I say- forget the mouth wash too!