DRUNK DRIVING / DRUNK DRIVING ACCIDENT / OVER .08 / REFUSAL
Impaired and drunk driving law has undergone huge changes over the last three to four years in British Columbia.
Contrary to some media-fuelled beliefs, driving with a BAC (or blood alcohol level) of 50 or higher has not been criminalized. The criminal law has remained unchanged. Commonly referred to as “impaired driving”, “DWI”, “DUI” or drunk driving, the offences of impaired operation and operation with an excessive alcohol-to-blood ratio (“over 0.08”) involves either operating or being in the care or control of a motor vehicle or vessel, while your ability to operate that vehicle or vessel is impaired by alcohol, or a drug.
Usually, police lay the charge after the driver is taken to the police station for the collection of a breath sample by a qualified technician. The instrument measures the BAC.
“Blowing over” means registering a sample over the legal allowable limit of .08. This will usually lead to an additional charge because it is an offence to operate a vehicle with a blood alcohol level over that limit, regardless of whether you are in fact impaired.
The “refusal” charge is laid if you refuse or fail to provide a proper sample or to engage in certain sobriety tests. The consequences of refusal are identical to the consequences of impaired driving and driving over 0.08.
Some years ago, the government also added new criminal offences if you refuse to perform certain sobriety tests (or “SFSTs”) at the roadside, and have introduced powerful new investigation powers to certain certified police officers to engage in “drug recognition evaluations”, which are designed to detect people driving under the influence of drugs other than alcohol.
These “drug recognition” investigations and prosecutions are extremely technical, and commonly cause lengthy delays for drivers under investigation. These delays, along with a number of real uncertainties about the “science” and the training make for real opportunities in defending “drug impaired” cases.
Even conventional charges of impaired driving / drunk driving / over .08 / DUI and refusal are very technical. It is common for investigators to make errors following the correct protocols. Those errors can can mean that the roadside screening device and/or the breath machine can be wrong and the driver innocent.
In addition to technical protocols, police are also required to carefully follow rules to protect an arrested driver’s constitutional rights, including the right to counsel, the right to silence, and the right against self-incrimination. These errors often lead to the collection of very damaging evidence, and challenging the process can lead to exclusion of the evidence, which is critical to an acquittal.
Immediate Roadside Prohibitions
As noted above, the law of drinking and driving has undergone substantial revision in British Columbia. The province has decided that certain “first time” offenders should not be charged criminally, but should be subjected to harsh roadside and so-called “administrative” sanctions.
In a nutshell, when a driver takes a roadside screening test and it registers a “warn”, he or she would receive either a 3, 7 or 30 day prohibition from driving. If the test registers a “fail”, then the prohibition is 90 days.
Unfortunately, the prohibition is just the start. Police will also tow and impound the driver’s car – at his or her expense. The Superintendent of Motor Vehicles will likely require the driver to enroll in either an 8- or 16-hour course of counseling, with intake and exit interviews. That is also at the driver’s expense.
Finally, it is common for the Superintendent to require drivers to install a device in their vehicle that requires constant and random breath samples to start the car or keep it driving. Once again, installation, maintenance, removal and rental of the “ignition inhibitor” are all at the driver’s expense.
Immediate Roadside Prohibitions (also referred to as “IRPs”) can be challenged, and our office has achieved impressive successes in such reviews. However, the driver must move quickly and initiate the review within seven days. The review itself will then take place and usually be decided within 21 days of the original incident. Moving quickly is imperative.
There are three levels of “bad driving” in Canadian law. At the lowest level is driving that causes an accident or damage, but wholly out of error by a driver who was otherwise driving well. This is handled by the insurance company and the only “penalty” is usually an increase in premiums.
The next level up is driving that is not objectively “dangerous”, but which constitutes an infraction of the Motor Vehicle Act. This type of driving is handled through the issuance of tickets, like speeding, moving violations, failure to wear a seatbelt and so on. The penalties are monetary, through a fine and often an insurance surcharge.
But when a person drives in a way that is considered to be a “marked departure” from the kind of driving that society expects from a reasonable person, the police may lay a charge of Dangerous Driving.
This is a criminal charge. It does not require that the person intend to put people in danger. In some cases, it does not even require actual danger be caused. It is charged where the driving is inherently unsafe, and on a level that justifies criminal intervention.
A conviction can be devastating. It usually includes a criminal record and Canada-wide Criminal Code driving prohibition. It may include jail, and if it involves injury or property loss, will likely lead to a denial of insurance coverage, along with personal liability.
Dangerous driving prosecutions usually rely on witnesses’ subjective observations. Often these observations can be tainted by a subjective opinion as to the accused’s manner of driving. In other cases, there may be forensic engineering evidence. These observations and this scientific evidence should be tested by an experienced lawyer acting for the defence. That can be the difference between a conviction on the one hand, or on the other, a judge’s finding that though the driving was not perfect, it also was not criminal. Indeed, that has been the difference in cases even involving multiple serious fatalities and casualties.
DRIVING WHILE PROHIBITED
The British Columbia Superintendent of Motor Vehicles is serious about enforcing good driving, as is the Court when it imposes prohibitions. Although most “driving while prohibited” charges are under the Motor Vehicle Act and are thus not criminal, they are considered serious. They routinely carry jail sentences (often automatic), and almost always more prohibitions. The government has armed Prosecutors with many “shortcuts” to prove the case, and drivers charged with the offence need and deserve proper representation. With that, success is far more common.
DRIVING WITHOUT DUE CARE & ATTENTION
As mentioned above, some driving infractions are handled solely under the Motor Vehicle Act. Driving without due care and attention is an “enhanced penalty” motor vehicle offence. It is the Motor Vehicle Act’s version of dangerous driving. The Crown need only prove certain aspects of poor driving on the part of the accused; and the accused must then show that the poor driving was done without negligence or fault on his part.
As such, these cases can be technical in nature, may provide many defences depending on the driver’s knowledge and actions at the relevant time and often have important consequences to the driver’s insurance coverage. The assistance of an experienced and skilful lawyer can make a big difference.
For a sampling of recent successes that Vancouver Criminal Defence Lawyer Emmet J. Duncan has enjoyed for his Clients, browse his Recent Cases in Defending Driving Offences.
** Please be advised that these definitions and information are not comprehensive legal definitions. They are designed to provide a brief and basic description of some of the most common criminal charges. As with all criminal charges, available defences will vary depending on the individual circumstances of each case. As such, the content of this website is not legal advice. Do not use or otherwise rely on any of the following content without first seeking proper legal advice.**