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Difference between revisions of "Governing Legislation and Resources for Motor Vehicle Law (13:II)"
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Governing Legislation and Resources for Motor Vehicle Law (13:II) (view source)
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This discretionary power may be exercised without a hearing. In addition, the Superintendent is given discretion in determining which evidence he or she will consider in making the decision. A suspension cannot be quashed solely on the basis that the Superintendent did not consider certain relevant evidence (MVA s 93(3)). The MVA appears to permit the Superintendent to limit the period during which a license is suspended to certain times of the day or days of the week (MVA s 25(12)(a)). An appeal of the suspension or cancellation to the Supreme Court must occur within 30 days (MVA s 94(1)). | This discretionary power may be exercised without a hearing. In addition, the Superintendent is given discretion in determining which evidence he or she will consider in making the decision. A suspension cannot be quashed solely on the basis that the Superintendent did not consider certain relevant evidence (MVA s 93(3)). The MVA appears to permit the Superintendent to limit the period during which a license is suspended to certain times of the day or days of the week (MVA s 25(12)(a)). An appeal of the suspension or cancellation to the Supreme Court must occur within 30 days (MVA s 94(1)). | ||
13- | ===== (4) Automatic Prohibition ===== | ||
A driver convicted of a ''Criminal Code'' motor vehicle offence is automatically prohibited from driving for a period of one year (MVA s 99). The automatic prohibition also applies to some offences under the MVA, including: | |||
*a) s 95: driving while prohibited by order of peace officer or Superintendent; | |||
*b) s 102: driving while prohibited by operation of law; | |||
*c) s 224: impaired driving; or | |||
*d) s 226(1): refusing to give a blood sample. | |||
Under MVA s 100(3), an individual who refuses to stop for a police officer will receive a two-year prohibition from driving if he or she is also convicted of one of the following ''Criminal Code'' offences: | |||
*a) s 220: criminal negligence causing death; | |||
*b) s 221: criminal negligence causing bodily injury; | |||
*c) s 236: manslaughter; or | |||
*d) s 249(1)(a), (3) or (4): dangerous operation of a motor vehicle. | |||
==== d) Impoundment of a Motor Vehicle ==== | |||
Drivers risk having their motor vehicles impounded when: | |||
===== (1) Driving Without a License ===== | |||
Drivers who are not exempt from holding a license risk having their vehicle impounded if: | |||
*a) the driver has not received a license because: | |||
**the driver is in debt to ICBC for reimbursement of money paid in respect of a claim (MVA s 26(1)(b)); | |||
**the driver has not paid a fine owing due to a ''Criminal Code'' motor vehicle offence (MVA s 26(1)(c)(i)) or MVA offence (MVA s 26(1)(c)(ii)); or | |||
*b) the driver’s license has been cancelled: | |||
**for failure to pay a ''Criminal Code'' or MVA fine (MVA s 27(3)); | |||
**for current prohibition or suspension under the MVA, ''Youth Justice Act'', SBC 2003, c 85 [YJA], ''Youth Criminal Justice Act'', SC 2002, c 1, or ''Criminal Code'' (MVA 60(1)(c)); or | |||
*c) if he or she has been convicted of driving without a license since his or her last driver’s license expired or was cancelled. | |||
===== (2) Impoundment for Racing ===== | |||
If a peace officer has reasonable and probable grounds to believe that a person has operated a motor vehicle on a highway in a race and the peace officer intends to charge the person who operated the motor vehicle with a serious offence, the peace officer may cause the motor vehicle to be taken to and impounded for 48 hours at a place directed by the peace officer (MVA s 242(1)). | |||
===== (3) Excessive Speeding ===== | |||
A person who drives a motor vehicle on a highway at a speed greater than 40 km/h over the applicable speed limit set under the authority of an enactment commits an offence under s.148 of the MVA. On the first offence their vehicle is impounded for a period 7 days (MVA s 251). On a second offence their vehicle is impounded for 30 days. | |||
===== (4) Alcohol or Drug Induced Impairment ===== | |||
If a peace officer serves a person with a notice of a 3-day or 7-day driving prohibition under MVA s 215.41(3.1) and believes that impoundment of the vehicle that the person was operating at the time the notice was served is necessary to prevent the person from driving before the prohibition expires, the peace officer may cause the motor vehicle to be taken to and impounded at a place directed by the peace officer. | |||
If a peace officer serves a person with a notice of a 30-day or 90-day driving prohibition under s 215.41(3.1), the peace officer must cause the motor vehicle that the person was operating at the time the notice was served to be taken and impounded at a place directed by the peace officer. (MVA s 215.46) | |||
A peace officer may, at any time or place on a highway or industrial road if the peace officer has reasonable and probable grounds to believe that a driver’s ability to drive a motor vehicle is affected by alcohol or drug and impoundment is necessary to prevent the driver from driving or operating the motor vehicle before the prohibition expires, immediately cause the motor vehicle that the driver was operating or of which the driver had care or control to be taken to a place directed by the peace officer and impounded there for a period of 24 hours. (MVA s 215.4) | |||
See [[Motor Vehicle Offences for Drugs and Alcohol (13:IX) | Section IX: Offences Related to Drugs and Alcohol]] below for more information. | |||
==== e) Prison ==== | |||
'''Read the relevant sections of the MVA to determine if there is the possibility of imprisonment for a particular offence.''' The OA limits the likelihood of incarceration as s 6 states that there should be no imprisonment for absolute liability offences and s 82(1) states that there should be no imprisonment for non-payment of fines. | |||
===== f) Breach of Insurance Conditions ===== | |||
Pursuant to s 55(8) of the ''Insurance (Vehicle) Regulation'', offences under MVA ss 95 and 102 (driving while prohibited), s 224 (driving with a blood alcohol level over .08), and s 226 (refusal to provide a blood sample) are considered a breach of certain insurance conditions. It is also a breach of these conditions if alcohol or drugs have rendered the driver incapable of proper control of the vehicle. | |||
== B. Federal (Criminal) Driving Offences == | |||
=== 1. Authority of Peace Officers === | |||
Pursuant to s 495(1) of the ''Criminal Code'', a peace officer may arrest without warrant: | |||
*a) a person who has committed an indictable offence or who, on reasonable grounds, the peace officer believes has committed or is about to commit an indictable offence; | |||
*b) a person who the peace officer finds committing a criminal offence; or | |||
*c) a person of whom the peace officer has reasonable grounds to believe that a warrant of arrest or committal is in force. | |||
Limitations are set out in s 495(2), allowing the peace officer to issue an appearance notice (s 496). An arrest is more likely when the offence involves impairment by alcohol or drugs as the peace officer may, acting under the authority of s 495(2), arrest if he or she forms the reasonable belief that it is necessary to prevent “the continuation or repetition of the offence or the commission of another offence”. | |||
In ''R v Labine'', (1987), 49 MVR 24 (BC Co Ct), the Court held that the policy of the police officer to arrest all impaired driving suspects regardless of rights afforded to them by the ''Criminal Code'' offends the ''Charter''. It specifically offends s 9 which protects against arbitrary detention. The police cannot deliberately adopt a policy to deprive the accused of the right not to be arbitrarily detained notwithstanding that the officer might be acting in the execution of their duties under ''Criminal Code'' s 495(3). Although the defence in ''Labine'' is still good law, its applicability has been greatly limited. The Court in ''R v Faulkner'', (1988), 9 MVR (2d) 137 (BCCA) states that unlawful arrests are not necessarily arbitrary. | |||
=== 2. Procedure === | |||
Consult [[Introduction to Criminal Law (1:I) | Chapter 1: Criminal Law]] for more information on LSLAP criminal procedure. | |||
It is in the client’s best interest to retain qualified legal counsel due to the potential for a criminal record and a severe penalty that may include incarceration. Complicated issues may also arise regarding insurance coverage. The Legal Services Society (Legal Aid) may represent an accused charged with an indictable offence or a summary conviction offence where there is a likelihood of imprisonment upon conviction. An accused who does not face the risk of imprisonment may receive legal representation if he or she faces a loss of livelihood upon conviction, has a mental or physical disability that is a barrier to self-representation, or faces immigration complications that may result in deportation. In all cases, the clinician should discuss the matter with the Supervising Lawyer prior to agreeing to act for the client or going on record as counsel. | |||
LSLAP will usually only represent clients for ''Criminal Code'' offences where: | |||
*a) the client cannot afford a lawyer; | |||
*b) the client has been turned down by Legal Aid; | |||
*c) the offence does not involve drugs or alcohol; | |||
*d) in the case of a hybrid offence, the Crown indicates it intends to proceed summarily or where the offence is purely a summary conviction offence; and | |||
*e) in the opinion of the Supervising Lawyer, the possibility of imprisonment is not significant. | |||
=== 3. Penalties === | |||
==== a) Fines or Imprisonment ==== | |||
To determine possible penalties, it is usually necessary to find out if the Crown is proceeding summarily or by way of indictment. The relevant offence sections in the ''Criminal Code'' outline the range of possible punishments. | |||
==== b) Penalty Points ==== | |||
The MVAR prescribes penalty points that are attached to specific motor vehicle offences. See [[Examples of Penalty Points and Fines for Motor Vehicle Offences (13:App A) | Appendix A: Examples of Penalty Points and Fines]]. | |||
==== c) Prohibition from Driving ==== | |||
An individual can be prohibited from driving under ''Criminal Code'' s 259. In addition, MVA s 99 imposes a one-year driving prohibition following conviction for a ''Criminal Code'' motor vehicle related offence. | |||
==== d) Impoundment of a Motor Vehicle ==== | |||
Please see [[{{PAGENAME}}#d) Impoundment of a Motor Vehicle | Section II.A.3(d)]] for impoundment with respect to provincial penalties. | |||
==== e) Breach of Insurance Conditions ==== | |||
Pursuant to s 55(8) of the ''Insurance (Vehicle) Regulation'', most ''Criminal Code'' motor vehicle offences are a breach of certain insurance conditions. It is also a breach of these conditions if alcohol or drugs have rendered the driver incapable of proper control of the vehicle. ''Criminal Code'' offences that breach insurance conditions are: | |||
*s 220: criminal negligence causing death; | |||
*s 221: criminal negligence causing bodily injury; | |||
*s 249: dangerous operation; | |||
*s 252: leaving the scene of an accident; | |||
*s 253(a): driving with a blood alcohol level over .08; | |||
*s 253(b): driving while impaired; | |||
*ss 255(2) or (3): causing bodily harm or death while impaired; | |||
*s 259(4): driving while disqualified; and | |||
*s 254(5): refusing to provide a breath/blood sample. | |||
If a conviction results from any of these offences, it may render the driver’s or owner’s insurance policy void and ICBC may legitimately deny any related claims (''Insurance (Vehicle) Regulation'' s 55(9)). | |||
