‘Disturbing’ changes to BC’s impaired driving provisions: lawyer
Posted May 3, 2018 7:31 am.
This article is more than 5 years old.
VANCOUVER (NEWS 1130) – While preparing for the federal legalization of marijuana, the provincial government has modified the Motor Vehicle Act to deal with drug impaired driving. But one lawyer says Victoria is also quietly slipping in changes to the way drinking and driving is dealt with and they take away some of your rights.
Vancouver lawyer Kyla Lee is concerned about tweaks to the administrative driving prohibition (ADP) which can be handed out when an officer has “reasonable and probable grounds” to believe that a driver’s blood alcohol concentration exceeded the legal limit within three hours of driving, or that the person refused to provide a blood or breath sample.
“One of the biggest changes has to do with when the prohibition starts,” Lee tells NEWS 1130.
“Right now, the driving prohibitions start 21 days from the date they are served on the driver. That period of time is important because it is the time period during which an adjudicator has to make a decision. You can dispute it within seven days and the adjudicator’s decision has to be rendered in that 21 day period,” she explains.
“So before the driving prohibition goes into effect, you get a decision about whether or not it’s valid and is going to be upheld. If it’s not, then you don’t have to serve any of the driving prohibition.”
Lee says the government is changing that to make the prohibitions start on the day it is served.
“It’s done in the same bill that create the drug-impaired driving scheme. Drug-impaired driving prohibitions are going to start seven days after they are issued, so there is a grace period for drugs but not for alcohol.”
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In her blog, Lee calls the changes “disturbing” because people facing impaired driving criminal charges along with a 90-day prohibition have always been extended the “sensible presumption of innocence.”
“The government is really quietly doing away with that. There was no discussion of it when they introduced the bill. They didn’t say they were also changing alcohol impaired driving, they just did it and they are trying to hide it,” she says.
“Another big change is that right now, if you get a 90-day administrative driving prohibition and the adjudicator can’t make a decision in that 21 day period, they are required to give you your license back until a decision can be rendered. But they are changing it so that the adjudicator is not required to do that. They can if they want but they don’t have to, so you could end up serving the whole of your 90 day prohibition before your case is even decided. The entire dispute process is rendered moot,” Lee explains.
“I would say these are significant changes aimed at taking away the rights of drivers to dispute their prohibitions and the rights of drivers to challenge the actions of police before they result in consequences,” she says, adding that she believes they are changes solely aimed at punishing drivers rather than ensuring a fair review process.
Lee says she can’t understand why the changes have been made given that the Motor Vehicle Act already has the Immediate Roadside Prohibition scheme, which takes effect immediately and can be served on the basis of less evidence.
“If an officer wanted somebody to serve the penalties immediately, they just use a different tool. There’s no need to make the administrative driving prohibition do it.”
She is also concerned the burden of proof has been reversed in disputing an ADP.
“It used to be that the burden was on the officer and they had to prove that the driver was over .08 and that they were in care and control of the vehicle or that they failed or refused to comply with the demand for a sample. Now the legislation shifts that. Once an officer establishes a person was over the limit, you still have to establish certain things to require the adjudicator to revoke the prohibition,” Lee says.
“It will complicate criminal charges for impaired driving prosecutions. These prohibitions are typically used when people are being charged with a criminal offence and now they are going to be required to give evidence in the review hearing, usually in the form of an affidavit or statement, which can then be used by the Crown in the course of prosecuting the criminal file.”
Lee suggests defending yourself on a driving prohibition could compromise your right in a criminal prosecution.
