BC DUI Lawyer: Update on BC DUI Laws Since Big November 30, 2011 Court Decision

Drinking & Driving Laws in BC

Sivia v. British Columbia (Superintendent of Motor Vehicles):Law in Limbo…?

On November 30^th 2011, the British Columbia Supreme Court held the “automatic roadside prohibitions” (ARPs) in BC’s Motor Vehicle Act for driver’s registering in the “fail” range on a roadside test are unconstitutional due to the severity of punishment and lack of meaningful review of the results.[1]

This is not the first time BC’s drinking driving legislation has been challenged…

But historically, these challenges have been unsuccessful. It is well-established that the province has jurisdiction to regulate drinking and driving as an aspect of its s. 92(13) legislative power over property and civil rights and similar legislation has withstood constitutional challenges in the past. For example, Buhlers v. British Columbia the Court of Appeal ruled that the provisions of the MVA that imposed an “administrative driving prohibition” (ADP) of 90 days based on an officer’s reasonable and probable belief that a driver had over 0.08 alcohol in his or her system were not an infringement on Charter rights and valid provincial jurisdiction.[2]

While the 24-hour roadside suspension, suspension upon criminal conviction for a motor-vehicle related offence, and ADP regime noted above have all survived constitutional scrutiny, the court has determined that aspects of the 2010 legislation crosses the line.

What did the legislation in question do?

The sections in question mandated an automatic 90-day driving suspension for a driver registering a “fail” (over 0.08 blood-alcohol) on a roadside-screening device.[3] The regime also imposes monetary penalties that could cost the suspended driver up to $4,000. The majority of these costs are made up of the cost of the responsible driver program and the use of an ignition interlock device for one year, which together total over $2,600.

Why is this case different than previous challenges?

While the ADP regime imposes similar penalties, it uses the analysis from a roadside test as “reasonable and probable grounds” to obtain a test from an “approved screening device” (a breathalyzer). The ARP regime is triggered after a roadside test alone. The difference is that the roadside test taken on a simpler device than a breathalyzer which does not provide a numerical blood-alcohol-concentration reading when the results are in the level of “warn” or “fail.” Roadside tests provide no physical record and on review are confirmed by the unsworn evidence of the peace officer who administered the test.

Why did the province make the changes?

In 2010­­­­ Solicitor General Michael de Jong, QC announced that the “Province is introducing Canada’s most immediate and severe impaired driving penalties to save lives, curb repeat offenders and give police more enforcement tools.”[4] The essential change was that with the new, roadside-issued 90-day bans, officers “no longer need to take drivers to the station for a full breath analysis in order to impose a driving ban longer than 24 hours.”[5] In other words, the ARP process was simpler and faster for the police officer to implement.

What is the problem with the ARP Regime?

According to evidence accepted by the court, roadside tests have a large margin of error. Wayne Jeffery, a toxicologist and former head of the RCMP toxicology lab in Vancouver deposed that while the procedural safeguard of taking two samples of breath 15 minutes apart and ensuring both samples are within 20mg% of each other is standard with the approved device (breathalyzer), it is not available with a roadside device. According to Jeffrey, this means that the accuracy of the roadside device reading could be affected by residual mouth alcohol from recent consumption of alcohol, recent use of mouthwash or recent regurgitation. He noted that unlike the approved instrument, the ASD does not have an internal safeguard to notify that residual mouth alcohol may be impacting the testing. Jeffrey maintained that where breathalyzers used by a qualified technician will give reliable results, a roadside test is not similarly dependable.[6]

Daffydd Hermann, a retired police officer noted that there are procedural safeguards officer’s must follow when using roadside devices including requirements that the officers must

• note the last drink consumed by the driver to ensure that mouth alcohol is not interfering with the results.
• operate the roadside devices only within their recommended temperature range
• follow all protocols and practices with respect to receiving proper breath samples
• be trained to offer to the driver a second test if the driver registers a “warn” or a “fail”.

On examination of this evidence, Justice Sigurdson determined that in some circumstances the roadside test may not accurately reflect blood-alcohol readings. He maintained that given the margin of error, the process may not be a reasonable search and seizure.[7] According to the judge, the evidence suggests that this problem does not exist, at least to the same extent, when an approved instrument (breathalyser) is used at the police station. He maintained that the potential for error, combined with a insufficient review process for ARP in respect to the failed tests were an infringement of s. 8 Charter rights.

What was wrong with the review process?

A driver subject to a prohibition based on a “fail” or “warn” result on the roadside screening device may apply under s. 215.48 to the Superintendent of Motor Vehicles for a review of the driving prohibition. Under s. 215.49, the Superintendent must consider any written statement or evidence provided by the applicant, the unsworn report of the peace officer, and a copy of the Notice of Driving Prohibition.

However, the scope of review is extremely limited. Only two issues are to be considered:

• was the applicant a “driver”, and
• did the screening device register a “warn” or “fail” (or did the motorist refuse to blow)?

The statutory review does not permit the driver to attempt to demonstrate that he or she did not have a blood-alcohol reading over 0.08 or to challenge the accuracy or functioning of the roadside test. The review does not allow the driver to attempt to challenge whether the demand for a breath sample was “capricious, cross-examine the officer, or raise the issue of whether the driver was advised of the possibility of giving a second sample.”[8] Justice Sigurdson maintained that the limited review process, combined with the potential for an inaccurate reading was a breach of section 8 of the Charter of Rights and Freedoms.

Can this infringement be saved under section 1 of the Charter?

In balancing the individual’s privacy interests and the state interest in the safety of highways involves Justice Sigurdson considered

• the intrusiveness of the search
• the lower expectation of privacy in a compelled breath sample at roadside, and
• the fact that driving is a highly regulated activity and a privilege

and found that the objective of the legislation (to remove impaired drivers from the highway) to be a very compelling state purpose. However, he continued, the absence of a mechanism for driver’s to challenge the validity of the results is problematic. Pointing to the review process already in place under the ADP regime, the judge maintained that it is possible to allow for a more meaningful review to be put in place without, in any material way, affecting the government’s objective of removing impaired drivers promptly and effectively from the road.

In the judges words, “The ARP regime that imposes prohibitions for drivers who “fail” at the roadside does not appropriately balance the rights of individuals and society at large. Relying on a search power derived from the criminal law that allows for a breath demand on suspicion but does not meaningfully allow the driver to challenge the suspension after the fact is not, in the entire context, reasonable. I therefore find that there is an infringement of s. 8.”[9]
Why was the “warn” legislation not an infringement?

According to Justice Sigurdson, the branch of the ARP regime dealing with roadside readings in the “warn” range is reasonable. The penalties are lighter and the suspensions are shorter (starting at 3 and 7 days and increasing only as much as 30 days in the case of repeat offenders). The costs (totaling $600) are made up of towing costs, the administrative penalty and the licence reinstatement fee. Accordingly, the judge maintained “with respect to prohibition length and associated costs, the ARP regime, in the case of a “warn” reading, does not approach criminal law in anywhere near the same manner as in the case of a “fail” reading.”[10]

What happens now?

The Officer of the Superintendent of Motor Vehicles released a public notice on December 2, 2011 informing citizens that police officers would revert to the pre-2010 process (ADP) for driver’s failing a roadside test.[11] However on December 19, 2011, Justice Sigurdson provided additional reasons allowing the province a grace period until June 30^th 2012 to amend the legislation regarding drinking and driving. Accordingly, we will have to wait to see whether the province will decide to use the ADP or ARP process until the new legislation is rolled out.