BC Criminal Defence Lawyer Blog

Arrested? Your Right to Counsel in British Columbia

Have you been arrested in BC? Read about your right to counsel and if your right to counsel was violated what it can mean for your case.

BC Drinking and Driving 90 Day Driving Prohibition Issues

A recent decision of the BC Supreme Court discusses troubling aspects of the current BC drinking and driving prohibition review process.

No right to a criminal lawyer before roadside breathalyzer

Section 10(b) of the Canadian Charter of Rights and Freedoms states:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

The obvious question arises:  Am I entitled to talk to a lawyer before providing a breath sample and/or performing a roadside sobriety test?

Short answer:  no.

The Supreme Court of Canada addressed this matter in the case R. v. Orlanski [2005] SCJ No. 37.  Canada's top court found that, yes, being pulled over and asking to provide a breath sample is being detained, and therefore one is entitled to a lawyer.  However, section 1 of our Charter states that our guaranteed rights are subject to reasonable limits declared by law.

Section 254 of the Criminal Code of Canada, which sets out Canada's criminal offences, declares that upon suspicion of impaired driving a police officer can demand a breath sample and/or demand a roadside sobriety test.  Section 254 is a law that limits the 'right to counsel' Charter right.  What our top court decided was that demanding a breath sample and/or roadside sobriety test without an opportunity to contact a lawyer is a reasonable law.

What this means is that one is not entitled to talk to a lawyer before breathing into a roadside breathalyzer and/or performing a roadside sobriety test.

Delayed breath sample may result in “not guilty” from DUI charge

At what point after driving a car can a police officer get a breath sample from a breathalyzer?

Consider this not uncommon situation:

A person driving a car causes a car accident.  I’ll call this person driver X.  Driver X gets out of the car and remains at the scene.  A police officer arrives 15 minutes after the crash.  The officer starts investigating the crash, including talking briefly to driver X, then continues wrapping up the investigation.  Then, 15 minutes after arriving on the scene – once the investigation is winding down, the officer returns to driver X and offers driver X a ride.

During the second conversation between the officer and driver X, the officer smells alcohol on the driver X’s breath.  The officer demands a breath sample.  Driver X gives a breath sample and fails.  The breath sample is given 18 minutes after the officer arrives at the scene and 33 minutes after the crash.

These were the facts in a recent BC provincial court case (R. v. Redgrave, [2008] B.C.J. No. 938).

The result?  Not guilty.

The reason for the ‘not guilty’ DUI decision was that the delay between the time the officer arrived at the scene and the officer demanding a breath sample was unreasonable.  As such, the breath sample was not authorized by law, resulting in an unreasonable search and seizure within the meaning of section 8 of the Canadian Charter of Rights and Freedoms.

If there is a delay between the time a police officer arrives at the scene of a crash and demanding a breath sample, and if that delay is long enough – longer than it is reasonably necessary for the officer to investigate (the accident or whatever else is being investigated) – then there is a possibility that the breath sample evidence won’t be admitted in court.

Section 254 (2)(b) of the Criminal Code states “to provide forthwith a sample of breath…”
The word forthwith means immediately.

Accident victims and accident scene safety are always a priority over obtaining breath samples.  However, once safety concerns are over, the police officer must investigate for impaired driving.  Any delay beyond that which is necessary is unreasonable.  When this happens, impaired driving evidence may not be allowed to be used against you in court.

Note: police officer delay is not to be confused with an intentional delay caused by a driver.

How the breathalyzer works and possible ways to defend a DUI charge in BC

Police in British Columbia use breathalyzers as one of their primary tools to test for impaired driving.  A blood alcohol concentration reading reading above .08 is cause for arrest for DUI / impaired driving. 

There are 3 types of machines used to test for for blood alcohol concentration.  They are (1) the breathalyzer, (2) the intoxilyzer, and (3) the alcosensor.  These 3 devices use different chemical reactions in order to provide a blood alcohol concentration reading.

There are several ways a blood alcohol concentration reading can be inaccurate.  If a criminal lawyer can show that the breathalyzer equipment wasn't maintained properly, this could be grounds for the reading not be used in court during your trial.  Also, if the breathalyzer machine wasn't calibrated properly, this too could mean the reading (i.e. the .08 and above reading) will not be admitted as evidence during a trial.

These are just two examples of how a criminal lawyer can defend an impaired driving charge.  Read our article "Breathalyzers and how a criminal lawyer can defend a DUI charge in BC" to learn more ways to defend a breathalyzer reading of .08 and above.

BC ignition interlock program for DUI / impaired convictions

The Office of the Superintendant of Motor Vehicles (British Columbia) now (as of February 1, 2009) requires drivers to install an ignition interlock device in all vehicles they drive if:

• An alcohol-related Criminal Code or Motor Vehicle Act conviction,
• Three 24-hour prohibitions within 5 years, or
  
• Two Administrative Driving Prohibitions (ADP) within 5 years.

The more offences, the longer the device is required.
An ignition interlock device requires a driver to breathe into an into a breathalyzer type device before the vehicle will start.  If there's alcohol in the breath, the vehcile won't start.

Drivers with the interlock device will need to go to an interlock installation centre every 1 - 2 months to download the information recorded.  The yearly cost for an interlock device is $1,600.  If a person required to install the interlock device drives another vehicle for work, they need to install a separate device in that vehicle also at an additional $1,600 per year.

Nanaimo signs encourage calling 911 to report drunk drivers

The City of Nanaimo, British Columbia is unveiling a project in which it will post signs encouraging motorists to pull over safely and call 911 to report suspected drunk driving.

This initiative is a collaboration of the Nanaimo RCMP, Office of the Superintendent of Motor Vehicles, MADD Canada, the City of Nanaimo and BCAA Traffic Safety Foundation.

Call centres will be set up to serve these calls.  The article "Call 911 to report impaired driving: BCAA" in Canadian Driver dated June 23, 2009 sets out the harrowing cost and damage of drunk driving in BC alone.

I note that the road signs to be installed will suggest to "pull over" and dial 911.  There's plenty of dialogue these days about banning cell phone use while driving - 25 percent of car accidents are caused by driver distraction according to a recent BC government report.  While drunk driving is dangerous to all motorists, so is cell phone use while driving according to some reports (Washington State has a ban on cell phone use while driving).  I wonder if cell-phone while driving is banned in BC, whether signs will be installed encouraging calling 911 to report cell phone use while driving.  I suppose with today's electronic signs, they could toggle back and forth between messages.

I wonder whether 911 already fields such calls and if so, do police follow up on them?  I'll be interested to see how many calls the specially set up 911 call centres will receive reporting drunk drivers and whether sufficient policing resources will be available to go out and follow up on all the tips.

Safe roads are a significant concern to BC citizens.  One way to help police, I suppose, is engage the public to get involved.