DUI Law – A Decade In Review

DUI Law – A Decade In Review

As another decade draws to a close, we can’t help but find ourselves reflecting on the events of the last ten years. From cell phones to sweat pants, nothing looks quite as it did a decade ago.

But what about our laws?

Certainly, our legal system is not impervious to change. Our ever-evolving laws can be changed and altered through challenge, interpretation and drafting. And the last decade has been particularly laden with transformation in one area in particular – impaired driving.

So let’s take a look back at how our impaired driving laws have adapted, expanded and evolved over the last ten years.

2010: Big Changes in BC

In September, 2010, the British Columbia legislature released new changes to the Motor Vehicle Act. The changes allowed for the issuance of automatic or immediate roadside prohibitions.

These changes were significant because it expanded the middle-ground, administrative option for police officers if a driver was driving under the influence of alcohol, but was not in the officer’s view, within the ambit of criminal charges.

With the 2010 amendments, drivers who blew a ‘fail’ on a screening device at the roadside, or failed to provide a sample altogether, could now receive an automatic prohibition from driving for a period of 90 days. Drivers who provided a ‘warn’ sample could face prohibitions ranging between three and thirty days, depending on their driving history. The immediate roadside prohibition also required recipents to pay a monetary penalty, attend a remedial program, have their vehicle impounded and pay impoundment, towing and storage fees, on top of licence reinstatement fees, and potentially enrol in the ignition interlock program.

It was heralded as Canada’s harshest drunk driving law.

However, not everyone was happy to see the changes kick into effect.

Many lawyers and legal scholars had serious concerns about the effect that the new laws would have on drivers’ rights. The Charter of Rights and Freedoms provides individual protection from infringements from actions of governments, including authorities such as the police. These protections are based on certain rights, which are laid out in the Charter. Examples of rights include the right to speak to a lawyer, the right to be presumed innocent, and the right to not be unreasonably searched or have evidence seized from you. All of these rights seemed to be at risk with the introduction of the immediate roadside prohibition scheme.

A 2011 BC Supreme Court case addressed some of these concerns. Three individuals had blown a ‘fail’ on screening devices and were issued driving prohibitions. Their lawyers argued that the new laws went against their client’s rights through the process by which officers seized breath samples. The court agreed. After working its’ way up to the Supreme Court of Canada, the challenge prompted BC to change its laws and make some adjustments to the administrative scheme on a whole.

2012: BC’s Laws Amended

In 2012, the laws were changed in response to concerns of the court. Although many lawyers felt that legislators did not go far enough to protect drivers, some changes were important and well-thought out.

For example, drivers now had the right to be told about a second breath test on the roadside after having obtained either a ‘fail’ or a ‘warn’ reading in the first instance. If they took the second breath test, the lower reading of the two would be the one relied on by the officer. This was a substantial departure from the former version of the scheme, which afforded drivers’ no right to be informed of the second test and went with the second result, no matter what it was.

The new laws would also allow drivers and their lawyers to appeal the driving prohibition for an expanded list of reasons.

The Superintendent of Motor Vehicles’ office claimed that the 2012 laws had led to a 52-percent reduction in alcohol-related motor vehicle deaths. The toughest drunk driving laws in Canada at the time, the BC laws had clearly advanced safety of road users…according to them.

2014: Business As Usual

2014 saw a further appeal of the immediate roadside prohibition scheme. This appeal, however, was not quite as successful as its forefather. The 2012 laws continued to be in effect.

From 2014 to 2018 there were a series of smaller developments that affected how the law was interpreted by adjudicators hearing IRP disputes, and courts hearing judicial reviews. These were in relation to whether the individual charged was in fact driving the vehicle, whether they actually refused to blow into a screening device, whether the reading on the device was a correct estimate of their blood alcohol content, and more.

2018: Canada-Wide Crack Down

The most serious changes to the law came in 2018, when bill C-46 made changes to Canada’s Criminal Code. These laws applied Canada-wide and affected all laws relating to driving under the influence of drugs or alcohol.

Before these changes, a police officer examining a driver at the roadside would have to first establish a reasonable suspicion that a person is driving with alcohol in their body before issuing a demand to provide a breath sample on the roadside. For example, the police officer would be required to observe a driver to see if they are slurring their words, determine if there was a smell of alcohol on their breath, or examine their eyes to see if they were glossy. In other words, the officer would have to have some basis for demanding that the driver blow into a screening device.

Following bill C-46, police officers are no longer required to form any suspicion before demanding a roadside breath sample. Police officers are now almost completely free to demand mandatory, arbitrary breath samples on the roadside.

The only caveat to their power to do so, is that they must have an approved screening device with them at the time the demand is made. If they do not, they can call a fellow officer to bring a device to them, but they must form a reasonable suspicion of alcohol consumption to do so.

This is just one of the many changes that bill C-46 brought about.

The new laws also allow officers to demand breath samples into an approved screening device up to two hours after a person has stopped driving. This effectively eliminates any ability to make a ‘bolus drinking defence.’ Drivers can no longer argue that they drove before alcohol had fully absorbed into their systems and therefore they were not impaired while behind the wheel. Although this defence is a rare one to mount in impaired driving proceedings, incidents were it occurs bring serious doubt about whether a person has committed an offence at all. The elimination of this defence at law means that potentially innocent people are unable to introduce evidence of that fact at trial.

With elevated penalties for impaired driving, and new sentencing principles at play, many people became concerned about how individual rights and liberties were being eroded in the name of community safety.

Our own Sarah Leamon was personally invited to the House of Commons, and subsequently to the Senate, where she offered her own concerns about the changes contemplated in bill c-46. She warned the government that the changes were over zealous and unneccessary.

However, they did not listen. Bill C-46 was passed into law.

2020: Looking Ahead

Given the massive overhaul to impaired driving laws that happened Canada-wide, the future is quite uncertain. Impaired driving law had been previously well-established, with a large volume of important case law dating back to the 1980s. Now that our federal laws have been largely over-hauled, much of the case law is now out-of-date and inapplicable. Long, drawn out court challenges are absolutely certain.

So going into the next decade, many lawyers hope to see our laws change for the better. We hope to see an appropriate balance between society’s safety interests and individual liberties. We need to make sure that constitutional rights are not trampled.

While we have no concrete insight as of yet where the next decade will lead us, pending Court challenges may reveal the need for a more fair balance between the rights of drivers and the need to keep BC’s roads safe.

So stay tuned, because we will be updating our readers on important impaired driving news well into the New Year.

If you have received charges relating to impaired driving or a 90-day immediate roadside prohibition, keep in mind that you may have a very short window to dispute. Give our office a Сall the lawyers at Sarah Leamon Law Group. Experienced lawyers are here to help you and first consultations are always free.