Discussing the changes to the impaired driving laws in BC

Mark: Hi, it’s Mark Bossert from Top Local Lead Generation. We’re here with Criminal Defense Attorney, Troy Anderson in Vancouver, BC. How’re you doing today Troy?

Troy: Very well thank you, how’re you?

Mark: I’m good. So we’re going to talk about impaired driving and maybe some of the changes that are taking place. Is it still a crime in BC?

Troy: Well, it is still a crime, still a crime all across Canada. What we have done in British Columbia is, we have what in my opinion amounts to effectively decriminalized most impaired driving and what I mean by that is it is not typically proceeded with under the Criminal Code anymore. What we’ve done in British Columbia is our provincial government has instituted what is called an immediate or automatic road side prohibition and it largely takes the place of an impaired driving criminal charge, so if you are a regular guy who perhaps blows over the legal limit which is .08 you will probably be dealt with administratively using the IRP or the Immediate Roadside Prohibition Program and then you would not be prosecuted criminally. It’s of course different if something more serious, so you’ve got a long history of impaired driving you will still be probably charged criminally. If there’s a serious accident particularly involving a fatality or significant injuries then you’ll probably be charged criminally but for most people who are charged with impaired driving it’s now under the IRP program and what that is, is the officer rather than taking you back to the police station, have you blow into the what we call the breathalyser, that’s not generally done anymore. What they will do, is have you use what’s called an approved screening device at the roadside and that’s a hand held version, it’s not as accurate as the one at the detachment but basically it’s a hand held breathalyser which will tell you if you blow either under 50 which would be you’re fine, go on your way. If you blew .05 to .1 so 50 a 100 milligram percent of alcohol in the blood you would blow a warn so you would likely be given a 3 day suspension if it’s your first time and if you blew fail which is calibrated to 100 milligram percent over you would be given a full 90 day immediate roadside prohibition. That carries with it a monititory $500 and then you would and as it sounds a 90 day driving suspension. You would then have to take part in a responsible driver program which will often involve going for intensive counselling, taking a driver improvement course and will often involve you having to have installed a car breathalyzer in your vehicle with you need to blow into to keep your car running and that’s in place for a year so it has very significant consequences altho technically it’s not a criminal proceeding.

Mark: O.K. well that boggles my mind. So no court, no judge just the device decides whether you’re guilty or not, basically.

Troy: You are entitled to a review, you are not entitled to a review in front of a judge, you’re entitled to file within 7 days, an application for a review of your Immediate Driving Prohibition, you would then be given a hearing date, be it a written hearing or oral hearing and it’s done by telephone from an adjudicator who works for Road Safety BC which we used to call the Superintendent of Motor Vehicles. They conduct a hearing on very, very limited grounds to determine whether or not they ought to uphold or appeal your driving prohibition and all the consequences that flow from it and in fact the only way a judge gets involved is if for example, you lose your administrative review and you apply to the Supreme Court Justice for judicial review of the adjudicators decision so to get to a judge takes some doing and it is quite expensive.

Mark: So I guess that wraps up the next couple questions, so how it’s decided, how to proceed – you can fight it if you want and how do you defend it, I guess best with representation in front of the adjudicator?

Troy: Well a lot of , well we’ll start with, first of all how does it proceed and I covered a little bit of that earlier so if you are someone who has no history of impaired driving and you haven’t received IRP’s in the past they will proceed with a IRP. If you are somebody who does have a history involving impaired driving they will probably proceed criminally and that’s a whole other discussion about what occurs in criminal court and your rights and particularly your charter rights that you can assert in a criminal trial in which you can’t actually assert in an administrative appearance so a lot of the protections that are available to all of us as citizens are stripped away in these administrative hearings so it’s a much narrower defense so getting back to the essence of your question, how do I proceed; it generally is better to have a lawyer I think represent you on these IRP’s because impaired driving is still a technical area of the law. The science that goes into it, the machines that are being used and knowing what to look for in trying to find flaws in the reports that are prepared by the police is a skill the average person probably doesn’t have. One of the things you can also attack, you can provide evidence that the reading on the approved screening device was not accurate, that is your blood alcohol level was not such that you would blow a warn or fail and for most people to marshal that evidence including the expert report that you would need, it would be very difficult particularly with only one or two turnarounds which is all you get so it’s probably a good idea to get a lawyer involved.

Mark: So what if I’m charged criminally?

Troy: Well if you’re charged criminally then the stakes are obviously higher. The minimum penalty for impaired driving criminally is a one thousand dollar fine and a one year driving suspension that applies Canada wide. It also address ten penalty points on your motor vehicle record here in British Columbia which may result in further suspensions, so once you get charged criminally it’s an entirely different experience in the sense that you’re actually called in front of a judge, you are entitled to disclosure of all of the material that the police have used against you and that’s going to include the maintenance and calibration material relating to the machines that they use. You are entitled to the protection of; you’re entitled to rely on your charter rights for example your right to be free from unreasonable search and seizure, your right to be free from arbritory detention so what occurs at the roadside is now the subject of judicial review, not completely cast aside as it is on the administrative appearance. So you are able to cross examine the police officer on why he or she took the steps that they did, you’re entitled to rely on technical defenses because the Crown is trying to prove a technical defense so there’s a lot of very, very detailed scientific and technical arguments here entitled to make in criminal court but may not be available in the administrative hearings, as well you get full protection of the charter and that will have significant affects. Significant affects for example in an application to exclude your blood alcohol readings from evidence which is something that I would always consider making on an impaired driving case, especially on a more serious one.

Mark: So am I reading this wrong, it seems like they kind of fuzzied the line, like .5 is now enough up to .1 so that’s actually over the .08 so it’s fuzzy where you can be in exchange for while yeah but we’re just going to rubber stamp you and goodbye driving for three months. Is that sort of what’s going on?

Troy: Well, that’s not how I would necessarily characterize it. A lot of people do call it a rubber stamp. I wouldn’t go that far. There are reviews and I do win some of these reviews, so it’s not a rubber stamp and you do have a right to push forward your evidence in affidavit form in calling your supporting witness to provide their written materials and hiring an expert but you’re quite right, it is very confusing, I think for a lot of people, like am I going to be charged with impaired driving if I have 2 glasses of wine and then drive home and it’s a very, very tough line to kind of straddle I suppose and our provincial government says, well that means that we will have a few people drinking and driving and that is their public policy. What has always concerned me about this is you get somebody who is very impaired and who is actually quite dangerous who is going to be treated exactly the same as the guy who’s a little bit over and who’s driving may not be that bad and I think that nuance and exploration of the evidence so that we know who we’re dealing with, I think is lost in a lot of these administrative hearings so the very dangerous drunk driver gets a break and guy who’s maybe had half a beer too much is treated exactly the same which I don’t think is necessarily fair and I think it unfairly, it’s unduly harsh on some people and far too lenient on others.

Mark: So this is the guy who understands this better probably than you do and if you get into difficulty, he’s the guy to call. We’ve been talking with Troy Anderson of troyandersonlaw.com. Call him 604-638-9188. He’s the guy who can help you out if you’ve got any kind of difficulty. Thanks Troy.

Troy: Thank you.