Impaired Driving Frequently Asked Questions
There are a number of different sections of the Motor Vehicle Act under which you may be prosecuted for driving while prohibited. Generally, the minimum punishment, for a first offence, is a further one year driving prohibition and a $500 fine.
Can a judge give me a sentence below the minimum set out in the Motor Vehicle Act?
No. Regardless of your personal circumstances, a judge may not impose a sentence that is below the minimum.
Can a judge give me a higher sentence than a one year driving prohibition and a $500 fine for my first offence?
Yes. Driving prohibition punishments can be as high as three years, and fines can be up to $2000. A judge may also sentence you to jail for a first offence.
Can I ask the judge to let me drive for work purposes only?
No. Unfortunately, in British Columbia, a judge has no power to limit your driving prohibition when you are convicted of driving while prohibited. He or she must sentence you to not drive 24 hours a day, 7 days a week.
Can I go to jail for driving while prohibited?
Yes. Even when prosecuted under the BC Motor Vehicle Act rather than the Criminal Code, a judge can still send you to jail for driving while prohibited. In British Columbia, sentences are usually served at maximum security provincial remand jails.
Can I be let out on the ankle bracelet (Electronic Monitoring house arrest) if I am sentenced to jail?
Although it used to be common practice for persons serving jail for driving while prohibited to be released on electronic monitoring, a shift in funding and administration a few years ago virtually ended its use for these cases. In BC, people usually serve their sentence in a conventional jail setting.
What is the punishment for a second driving while prohibited conviction?
This is an important question for a person considering pleading guilty to their first driving while prohibited charge. A second driving while prohibited conviction carries a minimum 14 days in jail. For example, if you are convicted of driving during the one year driving prohibition from a first conviction, the minimum sentence is 14 days in jail. A judge may not reduce this sentence, even if it would cause exceptional hardship, such as the loss of employment or housing.
Some individuals have a second driving while prohibited charge that has come up while they are serving their one year driving prohibition from their first charge. That can produce longer and longer driving prohibitions, and more and more time in jail.
All this seems rather harsh. Is this really necessary?
Many would say no, but British Columbia has traditionally been the province with the toughest laws and punishments for prohibited driving. The penalties are harsh, inflexible, and generally ignore the effects on your ability to work or support family members.
Is there any way to avoid the driving prohibition and other punishments for driving while prohibited?
If you defend your charges at trial and are successful, you will receive no punishment from the court.
Can I drive while I am waiting for my trial on a charge of driving while prohibited?
Unless you are subject to another prohibition, you are considered innocent until proven guilty, and may continue to drive.
How can there be any defence to a charge of driving while prohibited?
In BC, to be convicted, the prosecutor must prove you guilty beyond a reasonable doubt. You are presumed innocent until proven guilty. You also have a right to remain silent at your trial and are not required to answer questions unless you choose to testify. These important protections are in place in any driving while prohibited prosecution. The prosecutor must prove beyond a reasonable doubt the following three things:
1. You drove;
2. You were in fact prohibited under the section that is alleged (this can be an important detail); and
3. Very importantly, that you knew, at the time, that you were prohibited under the section that is alleged.
The prosecutor will often try to use documentary evidence and legislative shortcuts in their case against you. However, courts have often stated that when the prosecution uses legislative shortcuts, any problems with the documents can make them inadmissible, or deny the prosecutor the use of a presumption they require to prove the case to a standard of beyond a reasonable doubt.
Do I have to testify in my defence?
You have the right to choose if you testify or not. The prosecutor cannot require you to testify if you do not wish to. Part of the role of your lawyer would be to advise you whether to testify or not.
I admitted to the police officer that I was prohibited, how can I defend the charge now?
Statements to police officers at the roadside can be “thrown out” (found inadmissible) at trial. In Canada, when you are detained by a police officer, you have a right to remain silent, and a right to consult a lawyer. These rights are usually not afforded people at a roadside, and the things they say are often found to be in breach of these rights. This kind of argument, called a “Charter application” is the sort of complicated analysis as part of a defence that a lawyer can provide.
Why do I need a lawyer in a driving while prohibited case?
Because the documents and legislative shortcuts are so important in cases of this sort, it is crucial that you have someone with a trained eye carefully examine the documents for problems. A lawyer is not looking for simple spelling mistakes or incorrect license plate numbers. We look for sometimes elusive breaks in the evidentiary chain, non-compliance with the BC Motor Vehicle Act, and other difficult to spot problems. The issues in driving while prohibited cases in BC would not typically be apparent to anyone other than a lawyer who has experience dealing with this type of charge.