Difference between revisions of "Impaired Driving"

Both BC and Canada have laws against driving while impaired by alcohol or drugs. Often, only the [http://canlii.ca/t/847n BC law] applies. Sometimes, federal law (the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec253_smooth Criminal Code]'') applies instead of — or in addition to — BC law.

It’s not a crime to drive with some alcohol or drugs in your body. But it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol or drugs.  

 

If the police pull you over and have reasonable grounds to believe your ability to drive is affected by alcohol or a drug, they can require you to take the following tests. They can require these tests even if you aren’t driving but have “'''care or control'''” of a vehicle. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

===Police can require you to blow into a roadside screening device===

If the police reasonably suspect you have alcohol in your body, they may demand you give a breath sample by blowing into a hand-held '''approved screening device''' (or ASD). The police can use your test results to issue a driving prohibition or hold you for further investigation.

You don’t have the right to speak to a lawyer before you decide whether to blow into a roadside screening device — you have to decide right away whether to blow. Refusing to blow or to provide a sample suitable for the screening device can lead to a driving prohibition or a criminal charge.  

Under the law, a '''warn''' result means a blood-alcohol level over .05. A '''fail''' result means a blood-alcohol level over .08. In BC, roadside screening devices are set to show warn for blood-alcohol readings between .06 and .10, and fail for readings over .10. (The roadside screening devices allow more than the legal limits to avoid penalizing drivers who are at or near the limits and to account for the screening device’s margin of error.) If the roadside screening device shows a blood-alcohol reading below .06, the police will probably let you leave.  

 

===If the police demand you take a breathalyzer test===  

A '''breathalyzer''' is an instrument that measures the alcohol in your breath to see if you have more than 80 milligrams of alcohol in 100 millilitres of blood. If you do, you are “over .08”. This amount is the legal limit under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec253_smooth Criminal Code]''.  

===Your rights when detained===

When police make this demand, you are legally held, or '''detained'''. The police must tell you of your '''right to a lawyer''' and your '''other rights under the ''Charter''''' before you provide breath samples. They must also give you a chance to contact a lawyer you choose before you give breath samples. This could be a private lawyer or a duty counsel provided by legal aid. The police must stop trying to get samples or other evidence from you until you have the chance to talk with a lawyer in private.   

===You have the right to remain silent===  

You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case.

If your case goes to a trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

If the police demand it, you must blow into a roadside screening device, and take a breathalyzer test. You must do these things unless you have a '''reasonable excuse''' not to. If you refuse to do them, you are committing an offence.

===If you are charged with a criminal offence===

Police can charge you with any of three impaired driving-related offences under the ''[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec253_smooth Criminal Code]'':

*driving with a blood-alcohol concentration over 80 milligrams of alcohol in 100 milliliters of blood (“'''driving while over .08'''”)

These charges can apply if you’re driving a vehicle, a boat, a plane, or other vessel. They can apply even if you weren’t driving and didn’t move the vehicle — as long as you had “'''care or control'''” of it. You can have care or control of a vehicle even if you were parked — if you were in the driver’s seat and had access to the ignition key.

If your breathalyzer results were over .08, you will typically be charged with driving while over .08. If you failed to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also typically be charged with impaired driving.

===Driving prohibition===

If the police charge you with one or more of these three offences, the investigating police officer will typically issue you with a '''24-hour roadside prohibition'''. This takes effect immediately. They also typically issue a 90-day '''administrative driving prohibition'''. This driving prohibition starts 21 days after the police give you a copy of the notice of prohibition. (You can ask for a review of this prohibition, but you must do so within seven days. We explain how below.)

===Going to court===

If you are charged with any of the three ''Criminal Code'' offences, you will have to go to court (or have an agent go on your behalf). As there are a number of complex  technical and legal issues, you should get at least some initial advice from a lawyer, even if you decide not to have one in court. We suggest options shortly for finding a lawyer.

In responding to impaired driving-related charges under the ''Criminal Code'', you must decide how to '''plead'''. [[Pleading Guilty to a Criminal Charge (Script 212)|Pleading guilty]] means you accept responsibility for the offence. Pleading “not guilty” means the court will set a '''trial'''.

For '''over .08''', the prosecutor must prove your blood-alcohol concentration was over 80 milligrams of alcohol in 100 milliliters of blood. The prosecutor must show the evidence of your blood-alcohol concentration was legally obtained.  

For failing to blow, the prosecutor must prove you failed to give samples — without a reasonable excuse.

For a first offence of over .08, impaired driving, or refusing to blow, the '''mandatory minimum sentence''' is a $1,000 fine and a driving prohibition between one and three years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. This minimum sentence means you get a '''criminal record'''. A judge cannot give you a discharge.

===If there was an accident===

If you were in an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone while driving impaired, you risk being sued for a lot of money and having your insurance company deny coverage. The penalty for killing someone while impaired or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm.  

===Insurance premiums===

An impaired driving-related conviction under the ''Criminal Code'' means you will pay more in vehicle insurance premiums, under an ICBC program called '''driver risk premiums'''. This program applies to more serious driving offences. For more, see our information on [[The Points System and ICBC (Script 187)|the points system and ICBC (no. 187)]].

===Criminal record===

A conviction under the ''Criminal Code'' stays on your criminal record and driving record forever. After some time, you can usually ask for a [[Criminal Records and Applying for a Record Suspension (Script 205)|record suspension]], which limits access to your criminal record, but even that won’t erase the conviction from your record.

If police give you an immediate roadside prohibition, they can also '''impound''' your vehicle (have it towed). You must also pay penalties and fees, and you may be required to participate in driver safety programs.  

 

Yes. Police send a copy of any driving prohibition notice they issue to ICBC to be placed on your driver’s record. You can ask Road Safety BC for a '''review''' of a driving prohibition. You must ask '''within seven days''' of when you get the notice of prohibition.

To ask for the review, you fill in an application form available at any ICBC [https://www.icbc.com/locators/Pages/default.aspx driver licensing office]. You must also pay a fee that depends on whether you make your case in writing or orally. A decision will usually be made within 21 days of when you got the prohibition notice. The [https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driving-prohibitions-suspensions/disputes-appeals-reviews grounds to dispute] the prohibition vary depending on the type of prohibition. Close to a quarter of immediate roadside prohibitions are '''revoked''' (cancelled) on review.

A breathalyzer instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the '''concentration of alcohol in your breath'''. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. A reading of over 80 milligrams (called “over .08”) means you can be convicted of a criminal offence for being too drunk to drive.

Several penalties from drinking and driving apply only to the driver — any driving prohibition, fines or jail sentences, increased vehicle insurance premiums, and driver safety programs. But other effects apply to the vehicle owner. For example, if your car was impounded, you must pay towing and impoundment fees. If there was an accident, you can be exposed to significant costs. You probably don’t want to lend your car to someone who may drink and drive.

The legal issues for impaired driving can be complex and a conviction can seriously harm you. You can call the '''Lawyer Referral Service''' to get the name of a lawyer. For $25 plus taxes, you can speak to the lawyer for 30 minutes about your case, to help decide whether you would want to hire them.

===More information===

:Toll-free: 1-800-663-3051

[updated May 2018]