Friday, December 02, 2011

Court right to toss drinking-driving law

The B.C. Supreme Court struck a good balance in tossing part of the province’s new drinking-driving laws.
Justice Jon Sigurdson upheld the provisions that penalize people who blow between .05 and .08.
But he ruled that the use of the same approach to levy much tougher penalties for those who blow over .08 — the Criminal Code definition of impairment — is unconstitutional because it violates the Charter of Rights protection against “unreasonable search and seizure.”
The difference is the severity of the penalties. Sigurdson found that the Charter violation was tolerable in the case of the lesser penalties, given the importance of reducing impaired driving.
But the sanctions for blowing over .08 on a roadside screening device are much harsher. People have a right to a reasonable, independent appeal process when they face severe penalties, Sigurdson ruled, and the government has failed to provide one.
The fear that police officers effectively become judge and jury, without an adequate appeal process is well-founded.
It’s not a surprising ruling. The government’s aim — besides reducing impaired driving — was to save money by shifting impaired driving cases out of the courts.
Instead of laying a criminal charge, opening the door to a not guilty plea and trial, the government wanted to come up with similar penalties that could be imposed cheaply. Impaired cases make up about one-third of the caseload in provincial courts, in part because tougher penalties have given drivers a greater incentive to fight the charges.
The changes worked. The deaths linked to impaired driving fell 40 per cent in the year since the change was introduced, and the number of impaired driving charges fell by almost 75 per cent.
But the change, Sigurdson ruled, also violated British Columbians’ rights.
The courts have ruled that when a police officer has a “reasonable suspicion” a driver is impaired he could require a roadside breath test. But the test was simply an indicator that the driver should submit to a proper breathalyzer exam.
If he failed that, criminal charges could be laid. The driver would then have a chance to challenge the charge in court, cross-examine the officer and introduce evidence in his defence.
The provincial regulations skip all those steps. There is an appeal process, but it involves a strictly limited written appeal or hearing before a motor vehicle branch employee. Police don’t have to disclose evidence and there are no questions allowed.
Sigurdson found the province’s penalties for blowing over .08 were significant enough to require better safeguards to prevent innocent people from being wongly punished.
Drivers lose their licences for 90 days and face a $500 fine and the $880 cost of a remedial course. They are required to install ignition interlock devices once their licences are returned, which requires them to provide a clean breath sample before the car will start. Those cost more than $1,500. All in the total cost is more than $4,000, and some people, of course, lose their jobs. (Those who blow between .05 and .08 face a three-day suspension for a first offence, rising to seven days for a second infraction and 30 days for subsequent offences. They face fines of $200 to $400 and a $250 fee to have the licence reinstated. Repeat offenders also must take a course on drinking and driving, which costs $880, and have their cars impounded.)
The government has already been warned about problems with the regime. Earlier this year, a Supreme Court decision noted the appeal process was “fundamentally at odds with basic concepts of fairness and impartiality.”
There are easy fixes, at least going forward. The government can bring in a proper appeal process that respects Charter rights, or it can reduce the penalties.
It’s important to deter impaired driving. But it’s also important to respect basic principles — like innocence until proven guilty, and the right to a fair hearing before serious punishments are imposed.
Footnote: In the first 12 months, police imposed about 25,000 roadside suspensions. About 15,000 involved the more serious penalties for failing the roadside test or refusing to blow. It’s unclear whether drivers will challenge those penalties as a result of the ruling.

13 comments:

Anonymous said...

Paul, I have been subpeonaed to testify at the trial of a drunk driver; showed up at the appointed times (that case was three times remanded); and fulfilled my civic duty. Now I have seen the "basic principals" of a criminal court in action. Not only did the miscreant in that case blow a breathalizer reading of .20, then 15 minutes subsequently another one of .24 (most of us would have been unconcious before being able to imbibe to that degree) he had destroyed two vehicles and caused injuries to the 80 year old driver of the second. There were three other civilian witnesses besides myself, as well as the arresting officer and the certificate of analysis; all presenting mountains of damning evidence. Guess what? Yes, that's right...the offender's charges were thrown out and he walked away laughing. If he'd been convicted it would have been for his 5th time, and he was still on the road. So, Paul, I think you are on the wrong track on this file.

Rusty M said...

Bull Shit! You can't rip away the rights of the general populance based on one isolated case of 'my neighbour's brother knew a girl once, who had a friend blah blah blah ..."

Sorry Anon, your sample size of 1 renders your arguement insignificant.

DPL said...

No cop should be a roadside judge jury and executioner said, the real judge and he is right.How many vehicles are locked up in some impound lot costing people a lot of money because the BC Liberals decided to lower the impared number to .5 and didn't provice a instrument that is anywhere near accurate. Deal with folks blowing over .8, get them off the road for sure but quit cutting corners. No guilty till proven other wise

Scotty on Denman said...

The issue is not about drunk driving. Everyone agrees no one should drive drunk. Everyone agrees that drunk drivers should be punished. The issues are that people were being punished even when they weren't drunk (i.e., they blew under .08) and further, they were being summarily tried and convicted on the roadside by the arresting officer, with no recourse to trial or appeal.

The related issue is this question: why did the BC Liberals enact a law they knew would be challenged and thrown out on constitutional ground? Was it a calculated window of opportunity to grab some ill-gotten cash to help get the government out of the financial mess they've gotten us into? If it was, it was ill-considered: victims of this abusive law are lining up to sue for recompense and most likely damages which will potentially cost the government more than the money they illegally hauled in.

It's amazing how much the BC Liberals do because they think they can get away with it. We're all paying heavily for their compromised ethics.

Rusty M said...

The Liberals are all about cash grabbing. Their current favourite cash grab is their 'war on motorists'.

Add up all the gas taxes, and over-priced insurance, and intersection cameras, and .05 suspensions fines and reinstatement fees, increase ferry rates, bridge and highway tolls ... oh yeah baby, its a war on motorists ...

Anonymous said...

Rusty;

"The lady doth protest too much, methinks". The anecdote I provided was first hand, not bullshit. The old system was simply not working to keep drunks off the road.

As for next door neighbours, I had one of those as well...who just before he was run over and pinned under his own lawnmower by another drunk driver ("there's irony for you" as the saying goes) had had his driver's licence returned to him after having lost it for a few years for drunk driving. Of course that had never kept him off the road meantime. He liked to brag that the cops were so dumb because they'd only been able to convict him nine times out of the twenty-five times he'd faced charges for the same offence. That also came from the horse's mouth, not the friend of neighbour's sister.

I can hardly recall a single thing that the BC Liberals should be praised for, with the exception of their efforts to curb this single one of the many aspects of mayhem directly attributable to alcohol.

Rusty M said...
This comment has been removed by a blog administrator.
Anonymous said...

I don't agree that police should be judge and jury, but something obviously needs to be done. The attitude that drinking and driving isn't that big of deal is obviously more prevalent than Scotty on Denman believes, otherwise there wouldn't be such a high instance of it. I think the attitude it's ok to go out and have a few and then drive home so long as you're under .08 isn't a good one either. I'm not an expert on drinking, but doesn't alcohol effect people differently? These pubs with large parking lots only encourage such behavior. People should plan ahead and use taxis or transit. I am all for harsher restrictions placed on drivers who have been committed (longer driving bans, etc). Why not work on the appeal process instead of softening penalties? Driving is not a right, it is something that needs to be earned. Cars are extremely dangerous.

Anonymous said...

My husband received a roadside prohibition in October and lost his licence for 90 days and his truck impounded for 30 days (cost $780). The cops tested him 4 times before they got a reading they liked and, of course, wouldn't tell him what he blew, just failed.

That being said, at least he doesn't have a criminal charge against him.

But, when he goes to get his licence back, because he has a commercial drivers licence, he must have the breathalyzer installed in a commercial vehicle or else he goes back to a class 5. And when his seasonal break-up occurs (logging) he will have to have the device installed in another vehicle (another $200) plus apply for another drivers licence or else the months he's off work, don't count towards the 12 months. Or he could have an additional device installed in his own truck (another $130/month) and pay for two, even when one is not being driven.

Now that's a money grab. And why penalize on the class of licence you have? Whatever type you had when you got it suspended, should be yours to keep forever.

Anonymous said...

I wonder what the odds actually are for a drinker getting caught the first time ever they chose to drive while impaired. Not quite so high as winning the lottery I suppose. But for a professional driver to drink anything at all and then get behind the wheel? Maybe next time there won't be next time?

Mr. Beer N. Hockey said...

The people who like to have a few at the pub, with dinner, at a hockey game, with the softball team, in other words just about everybody except the quasi-Taliban MADD types, who think more laws and unfettered police powers diminish anti-social behaviour like drunk driving without screwing everybody in the process, have been uncomfortable with the two beers and you're screwed Liberal liquor laws from day one. Score one for common sense. The Vancouver mayors' legalization message was another such score for the common sense team. I would be surprised if a pattern of common sense is emerging, in this here age of common nonsense, but it would nice if it continues.

Dave Velasco said...

The court law should adhere more point to it alcohol retailers. They should aim for further alcohol retailing courses that will get business establishments in getting legal on their business first.

Joseph said...

Strict violations regarding drunk driving should impose by legal authorities for drunk drivers to be discipline. Drunk drivers who had been experience street accidents should learn their mistake. Legal matters about this can be help by DUI lawyers.




Joseph @ drink driving interlock