Impaired Driving – FAQ
In British Columbia, we have one of the most complicated schemes of DUI legislation in Canada.
If you are dealing with an impaired driving related charge or driving prohibition in British Columbia, our lawyers help.
What happened to the old “24 hour driving prohibitions” and why is mine for 3 days, 7 days, or 30 days?
Prior to September 20, 2010, if an officer had reasonable and probable grounds to believe that a driver’s ability to drive a motor vehicle is affected by alcohol or a drug, they could serve him/her with a 24-hour driving prohibition. After September 20, 2010 the prohibitions are for 3 days, 7 days, or 30 days, depending on whether the person had been served with a similar prohibition or prohibitions in the preceding 5 years.
I have been given a 3-day, 7-day or 30-day licence suspension and the officer did not even use a screening device. What can I do?
If a police officer served you with a 3-day, 7-day or 30-day licence suspension under section 215 of the Motor Vehicle Act because s/he believed your ability to operate a motor vehicle was affected by alcohol, and the police officer did not use any kind of a device to determine your blood alcohol concentration, you have the right to “immediately” request for an opportunity to provide a breath sample as long as you do so after the officer hands you the driving prohibition. The legislation does not require the officer to tell you about your right to request this test. If this sounds unfair to you, it is.
Is there a financial penalty associated with 3-day, 7-day or 30-day licence suspensions?
Yes. The amounts are $150, $300 and $400 respectively.
I have been given a 3-day, 7-day or 30-day licence suspension. Can it be appealed?
Yes. You have seven days to file an appeal. Be sure to contact counsel immediately so that you do not miss your opportunity to file an appeal. The appeal process to the Superintendent of Motor Vehicles is completely inadequate and it may be necessary to have the prohibition judicially reviewed in Supreme Court.
Is there a financial penalty associated with a 90 day licence suspensions?
Yes: $500. The imposition of penalties as a result of roadside screening device results obtained without an opportunity to contact counsel is inconsistent with jurisprudence from the Supreme Court of Canada. It is entirely possible that financial and other penalties will ultimately be found to be unlawful.
My review of a 3-day, 7-day, 30-day or 90-day driving prohibition was unsuccessful, is there anything I can do?
Possibly. The legislative scheme for reviewing 3-day, 7-day, 30-day or 90-day driving prohibitions is fundamentally flawed and unfair. The Superintendent of Motor Vehicles is given almost no authority to conduct a proper review of these driving prohibitions. This means that many of the issues relating to these driving prohibitions will need to be reviewed in court. The Supreme Court of British Columbia has authority to review decisions of the Superintendent of Motor Vehicles and to assess the legality of the legislative scheme. Contact counsel immediately to get advice on what your options are.
I have been given a Promise to Appear in Court for impaired driving. What does this mean?
The most serious part of an impaired driving investigation is the criminal part of the proceeding. Some people refer to the criminal charge as an over 08, DUI, or DWI charge. This process usually begins with the service of a Promise to Appear in court. There are several offences relating to impaired driving allegations that are often listed by police on the Promise to Appear. These include:
1. operating or having care and control of a motor vehicle while your ability to do so is impaired by alcohol or a drug (impaired driving);
2. operating or having care and control of a motor vehicle with a blood alcohol level in excess of 80 milligrams of alcohol per 100 milliliters or blood (over .08);
3. refusal to provide a breath sample
4. dangerous driving.
In British Columbia, however, the police do not have the authority to make the ultimate decision about what charge or charges will be laid. This responsibility rests with Crown Counsel (the prosecutor). For this reason, the charges ultimately approved may be different from those listed by police on the Promise to Appear.
To learn more, see our information about first appearances.
If I have been given a Promise to Appear in Court for a DUI charge. What are the consequences if I plead guilty?
The consequences of being convicted of impaired driving are serious and include a fine or jail as well as a minimum of a one year driving prohibition for a first offence. In addition, a conviction means that you would have a criminal record which can affect your ability to travel or secure employment.
In British Columbia, there is a minimum 1 year suspension for a first offence. There is a minimum 3 year suspension for a second offence (within 10 years) and there is an indefinite suspension for a third offence. In addition, before you are allowed to drive again, you will need to participate in the Responsible Driver’s Program which will require you take an education or a counselling course. You will also need to install a breath testing device on your vehicle for one year (the ignition interlock program). The above can total a few thousand dollars.
If I have blown over .08 or have been given a Promise to Appear in Court, does that mean I will be found guilty?
Simply because you have “blown over” on the breath test does not mean that you will be found guilty of an impaired driving related charge. Not only may the results of the breath test be inaccurate or not properly reflect your blood alcohol level at the time of driving, the legal requirements for the use of such results are intricate and complicated. It is important to have a lawyer review all of the paperwork that will eventually be provided by Crown Counsel in order to provide you with an informed opinion on the strength of your case.
Even in circumstances where, after reviewing all of the police reports, notes and other material and discussing the circumstances with you, it is determined that the case against you is a strong one, a DUI lawyer may be able to assist in reducing the potential impact on you.
The law with respect to impaired driving is one of the most intricate areas of criminal law. It is important to obtain advice from a DUI lawyer immediately.
Can I get the mandatory minimum penalty reduced if I plead guilty?
No. Because there are mandatory minimum penalties, a judge is not allowed reduce the sentences on the basis of a guilty plea or your personal circumstances.
Do I need to go to court in person on the date listed on my Promise to Appear?
The date listed by the police on a Promise to Appear is only the beginning of the criminal process. Typically, it will take several months and a number of court appearances before the case is finally resolved.
Once you have retained a lawyer to assist you with your case, it is possible for them to appear in court on your behalf for the number of court appearances that will be required before your case is ready for trial or sentencing. This can significantly reduce the time and embarrassment associated with having to appear in court personally on these occasions.
Do I still need to attend personally for fingerprinting?
If the Promise to Appear sets out a date for this, then you must attend. Quite often, the person is fingerprinted before being released.
What are my chances of being convicted of impaired driving?
Like with any criminal charge, the principles that apply are these:
1.You are presumed to be innocent
2.The burden of proof is on the Crown prosecutor
3.The standard of proof is beyond a reasonable doubt (the most stringent standard known to law)
4.You have a right to remain silent and are not required to testify or answer questions
In many cases, the Crown is simply unable to prove its case to the required standard and people are found not guilty.
By the first appearance date on your Promise to Appear, we should be in a position to obtain a copy of the paperwork relating to your case. Typically, there is a substantial volume of material. Once we have had an opportunity to review this material and discuss the case with you, we will be in a position to advise you on the strength of the case and what your available options are.
What is the significance of the Certificate of Qualified Technician the police gave me?
When you are charged with driving with a blood alcohol concentration over .08, Crown Counsel needs to prove how much alcohol was in your blood at the time you were actually driving or in care and control of a motor vehicle. The direct evidence of this would be a blood test taken at the time you were still in your vehicle. In most cases, all the police have is the Certificate of Qualified Technician which lists the results of breath tests taken some time later back at the police station. These are in two respects different from what needs to be proven. The tests are breath tests and not blood tests. And they are never obtained until some time after you were driving.
In order to make use of a Certificate of Qualified Technician, Crown Counsel would need to establish that the police did a number of things correctly. Often, the police have not followed all of the required steps and Crown Counsel will not be able to make use of the Certificate of Qualified Technician.
What are the consequences of a criminal conviction for impaired driving, over 08, or refusing to provide a breath sample?
There are mandatory minimum penalties for impaired driving, over 08, or refusing to provide a breath sample charges. The mandatory minimum penalties may increase if you have been convicted of any of these things in the past depending on when the previous conviction was and whether the Crown seeks to rely on a notice of intention to seek greater punishment.
For a first conviction, the consequences of a conviction include a minimum of a $1,000 fine, a one year diving prohibition, and a criminal record. A number of other consequences, while not imposed by a judge in court, occur automatically pursuant to the Motor Vehicle Act. These include a requirement to pay for and attend the Responsible Driver Program and, after the one year prohibition is finished, paying for the installation and rental of an interlock device in your car, and paying an insurance surcharge for 3 years.
Is it possible to get an exception to the Criminal Code driving prohibition?
For a first offence there can be no exception for 3 months, for a second offence 6 months and for a subsequent conviction 1 year. After these complete periods of prohibition, if you are registered in an interlock program and have an interlock device installed in a car you may be permitted to drive. Participation in the interlock program is only available if the conviction was for driving while being impaired by alcohol rather than drugs. Participation in the interlock program also requires you to have already paid for and completed the Responsible Driver Program.
What is an interlock device?
An interlock is a breath testing device connected to the ignition system of a car. You need to provide breath samples before the car will start and then periodically you are required to pull over and provide additional samples while driving. The cost of installation and rental is approximately $1,730 per year.
How much does the Responsible Driver Program Cost?
$880.
How much is the insurance surcharge?
Approximately $900 per year but it may be more depending on your driving record.
What happens if I can’t afford to pay for the Responsible Driver Program, interlock device, and insurance surcharges?
You will not be allowed to drive again.
What are the implications of a criminal record?
A criminal record can impact on employment, membership in professional organizations, eligibility for volunteer positions and international travel.
Looking for some help with an impaired driving charge? Call Mulligan Defence Lawyers today: