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Pursuant to s. 254(2) of the Criminal Code, a peace officer may demand a breath sample into an Approved Screening Device (ASD) from a driver if the officer reasonably suspects that there is alcohol in the driver’s body and they have operated a motor vehicle within the proceeding 3 hours. This is permitted for both drivers who are operating a motor vehicle or have care or control of it. An ASD is different than a breathalyser machine and it does not provide a numerical value for the readings of “warn” or “fail”. If the police do not administer the ASD right away, they may not be able to use the results readings at trial.

In summary, if police demand a breath sample, the driver must comply with the breath demand into the ASD. The driver is legally compelled to provide a breath sample unless there is a reasonable excuse not to do so. Refusing without a reasonable excuse constitutes a separate offence.

The Motor Vehicle Act makes it an offence either to drive or to be in the care or control of a motor vehicle with a blood-alcohol reading in excess of 80 milligrams of alcohol per 100 millilitres of blood (.08). There is also a separate offences for driving or being in car or control of a vehicle with a blood-alcohol reading in excess of 50 milligrams of alcohol per 100 millilitres of blood (.05). Care or control of a vehicle means occupying the driver’s seat with access to the ignition key, even if the vehicle is parked.

Beyond the penalties noted below, receiving multiple penalties, or just one 90-day driving prohibition or Criminal Code penalty, can result in referral to the Responsible Driving Program (RDP), or the Ignition Interlock Program (IIP). The RDP is a course taken over 8 or 16 hours, whereas the IIP requires the installation of an interlock device in the driver’s vehicle. For more information, consult the RoadSafetyBC website at http://www2.gov.bc.ca/gov/content/ transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-remedial-programs

If an officer suspects you of being affected by alcohol while driving or in care or control, they may ask for a sample of breath into an ASD. You have the right to have a second sample taken, and to have the lower reading prevail.

As discussed above, your vehicle may be impounded if you are issued an Immediate Roadside Prohibition. This is discretionary for 3 and 7 day prohibitions, but mandatory for 30 and 90 day prohibition.

A person may, within 7 days of being served with a notice of driving prohibition under section 215.41, apply to the superintendent for a review of the driving prohibition (Motor Vehicle Act s 215.48(1)) by attending any driver licensing center, and complete and submit the form, “Immediate Roadside Prohibition – Application for Review – Section 215.48 Motor Vehicle Act”. Fill in the blanks and check all boxes that indicate the ‘grounds for review.’ The grounds for review are:

It is highly recommended that individuals seeking to challenge an immediate roadside prohibition be represented by a lawyer.

The administrative decision (review decision) is final. If the application is unsuccessful, the only recourse is through a judicial review. The application for the judicial review must be filed within 30 days of receiving the decision, and is made by filing a notice of petition in Supreme Court. The filing fee is $200, and appeals can generally only be made on the basis that the original decision was unreasonable.

It is highly recommended that individuals seeking to challenge the administrative decision by way of judicial review be represented by a lawyer.

24-Hour roadside prohibitions are issued by the police where they believe on reasonable and probable grounds that your ability to drive is affected by alcohol or drugs. The police do not need a breath sample to issue a 24-hour prohibition, but you have the right to request an ASD test. Note, however, if you take an ASD test and test in the WARN or FAIL ranges, more serious penalties will apply to you.

If the police suspect that you have consumed alcohol and had care or control of a motor vehicle within the preceding three hours, the police may demand a breath or blood sample. If that sample indicates a BAC over .08, or you refuse a sample, you will be issued a 90-day Administrative Driving Prohibition. This is in addition to federal criminal charges you may face.

*I had a reasonable excuse for failing or refusing to comply with a demand under section 254 of the Criminal Code to supply a breath or blood sample.

If you are convicted of a federal criminal impaired driving or refusal offence, you may be prohibited from driving as follows:

* upon your 3rd Conviction — a minimum 3 year to-lifetime driving prohibition)

The Criminal Code provides a number of federal criminal offences related to impaired driving. These are serious criminal offences, with significant possible penalties. Individuals facing Criminal Code charges are strongly encouraged to consult with a lawyer.

Section 253(1)(a) of the Criminal Code makes it an offence either to operate or to be in care or control of a motor vehicle while alcohol or drugs impair one’s ability to drive. Section 253(1)(b) makes it an offence to either operate or be in the care or control of a motor vehicle with a blood-alcohol concentration reading in excess of 80 milligrams of alcohol per 100 millilitres of blood. With a charge under s 253, the Crown must prove operation if operation is charged or prove care or control if care or control is charged. These are two separate and distinct offences and neither is included in the other: R v Henryi, (1971), 5 CCC (2d) 201 (BC Co Ct); R v Jones (1974), 17 CCC (2d) 221 (BCSC); and R v Faer (1975), 26 CCC (2d) 327 (Sask CA). Since it is difficult to conceive of a situation when driving is not also care or control, the Crown will almost always charge care or control.

As stated above, a conviction requires the production of a valid certificate or vive voce testimony at trial from a registered analyst or a breathalyser technician. However, the breathalyser technician or registered analyst must have the requisite qualifications.

Under Criminal Code s 255, impaired driving is a hybrid offence. The minimum fine for a first offence is $1,000. If convicted of an indictable offence under s 255, the accused may be liable for a maximum of 5 years’ imprisonment. If convicted on summary conviction, the accused may be liable for up to 18 months’ imprisonment. Imprisonment is mandatory for repeat offences: at least 30 days for the second offence and at least 120 days for each additional offence.

A peace officer can demand a breath sample if that officer reasonably suspects a driver has consumed alcohol (Criminal Code s 254(2)). This is for screening purposes only. An officer may also demand a breath or blood sample for later use as evidence in court under s 254(3) if that officer has reasonable and probable grounds to believe that the driver is impaired or has a blood alcohol concentration level over .08. Refusal to provide a sample in either circumstance is a criminal offence (s 254(5)). To demand the sample under s 254(3), the test is both subjective and objective. The peace officer must hold an honest belief and there must be reasonable grounds for this belief (based on Criminal Code s 254(3) and Charter s 8 (protection against unreasonable search and seizure) as interpreted in R v Bernshaw (1994), 95 CCC (3d) 193 (SCC)).