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IMPAIRED DRIVING

In his three decades of practice, Mr. Welsh has prosecuted and defended numerous impaired driving cases and knows the law in this area thoroughly.  He has also written articles for legal journals on areas of impaired driving law, most recently in 2011.  Click this link to read this article on BC Impaired Driving Law

The first thing you must know is that there are two sets of laws that deal with impaired operation of a vehicle.  One is criminal and is found in the Criminal Code of Canada.  The other is under the BC Motor Vehicle Act and is not criminal but can result in your being prohibited from driving and having your vehicle impounded.

Under the Criminal Code there are four offences that you can potentially be charged with.  If you are charged with one or more of these Criminal Code offences, please read the comments on my website under “criminal defence” [link] along with the comments here.

The four Criminal Code offences are:

1.  being in care or control of a vehicle (which includes a motor vehicle, motorcycle, boat, airplane and railroad engine) while you are impaired by alcohol or a drug (commonly  called “impaired driving”),
2. having care of control of a vehicle while your blood alcohol concentration (“BAC”) exceeds 80 mg of alcohol for each 100 ml of blood (often called the “breathalyzer count” or “driving over .08”),
3. refusing to take a breathalyzer test without lawful excuse and
4. refusing to blow into a roadside approved screening device (“ASD”) without lawful excuse.

With all of these offences, it is important to know that you do not necessarily have to be operating the vehicle to be charged.  It is enough to be in “care and control” of it.  So, if you are just sitting in the driver’s seat of a parked vehicle with the keys in the ignition, that may be enough.

The basis to prove each of these charges is different.  However, in all cases, the court has to be convinced beyond a reasonable doubt of your guilt.

For “impaired driving” the test the courts use is whether your operation of the vehicle was markedly different from what one would expect from a sober person.  This is often hard to prove and, if the reason was illness or some other cause than impairment, then you have a defence.

For the “breathalyzer count” the test is whether, when you blew into the breathalyzer machine at the police detachment, your readings were over 80 mg. of alcohol.  However, before a police officer can demand that you provide a breath sample, that officer must have formed the opinion, based on reasonable grounds, that your ability to operate a vehicle was impaired by alcohol or drugs.  The officer must also have told you of your rights to seek legal advice and have given you a reasonable opportunity to exercise them.  There are also many technical issues around the proper operation of the breathalyzer machine that a lawyer experienced in “impaired driving” law can use in a defence to this charge.

Refusal to provide a sample where the officer has a reasonably based opinion that your ability to operate a vehicle is impaired is an offence.   Again, this is a highly technical area requiring a lawyer with specialized knowledge.

One way a police officer can obtain those reasonable grounds is if you “fail” when blowing into the ASD.  However, before the officer can demand you blow into the ASD, that officer must have a reasonably based suspicion that you have alcohol in your body (from such things as smell, an admission of drinking, seeing alcohol in the vehicle and so forth).  If you refuse to provide a sample into the ASD and the officer has that reasonable suspicion, then you are guilty of the offence of refusal to provide the ASD sample.

In all these cases, a first offence has a minimum penalty of a $1,000 fine and a one year Canada-wide driving prohibition and a criminal record.

Defence of all these charges requires a high degree of knowledge of the criminal law, the Charter of Right and Freedoms and the operation of the breathalyzer machine and ASD.  Mr. Welsh has spent years studying in this area and has handled many “impaired driving” cases both as a prosecutor and defence lawyer.

We have all heard recently of the changes to BC’s Motor Vehicle Act respecting roadside suspensions.  However, it is important to know that the actual laws have not changed, just the penalties.  In an effort to reduce spending on the court system dealing with “impaired driving” cases, the BC government in 2010 increased the length of roadside suspensions and vehicle impoundment fees for those “fail” or have a “warn” when blowing into the ASD.

These are not criminal charges.  If you are given a suspension you do not get a criminal record, although it shows on your driving record and can lead to additional administrative driving prohibitions by the BC Superintendent of Motor Vehicles.

There are two types of administrative prohibitions that can occur.  If your breath sample gives a reading between  .06 and .08 it is called a “warn” and will result in an immediate roadside suspension and fine that is 3 days and $200 the first time, 7 days and $300 the second time and 30 days and $400 the third time.  If your reading is over .08 it is called a “fail” with a 90 day driving prohibition and $500 fine and 30 day vehicle impoundment.  There is also a Responsible Driver Program that those who fail and those with repeat “warns” must take and an ignition interlock to install in our vehicle for a year into which you must provide a breath sample each time to start your vehicle.   All this costs significant money, some $4,060.

Appeals are not to a court, but to an adjudicator and are called Administrative Driving Prohibition Reviews.  The forms to file can be obtained from the local Service BC office or online.  Go to www.pssg.gov.bc.ca.   Particularly if you receive a 90 day prohibition you should get legal advice immediately as there is only a 7 day period to file for a review.  At the time this was written the BC government is looking at changing the review process.