In the section 215 of the MVA, there is a “way out” for the driver being served the 24 hour suspension. The section 215(6) reads as follows:
(6) If a driver, who is served with a notice of driving prohibition under subsection (2), forthwith requests a peace officer to administer and does undergo as soon as practicable a test that indicates that his or her blood alcohol level does not exceed 50 mg of alcohol in 100 mL of blood, the prohibition from driving is terminated.
The novice driver does not really fit the “description” of “driver” in this section because blowing below .05 does not prevent a prohibition from driving (as stated), perhaps a 24 hour, but not a 12 hour suspension. If the Novice driver requests a roadside test, and is below .05, would he/she be free to go? As a Novice driver you are not allowed ANY alcohol in your system. So what happens then? If ANY alcohol is detected by a roadside test, a 12 hour suspension is mandatory at that point, according to 90.3 of MVA and the OSMV. If the officer does not give a 12 hour at that point (up to the officers discretion) then the law is not complied with.
How can a section of the motor vehicle act, designed for “regular” drivers, be used on a Novice driver in the GLP? Novice drivers can prove innocence by asking for a roadside test and blowing below .05, (getting off the 24 hour suspension) but in doing so, incriminate themselves to show alcohol in their system and receive another charge….the 12 hour suspension and further review by the OSMV. Because the driver is a Novice driver, it should be the officer’s responsibility to request the roadside test.
So how can a decision to uphold a 24 hour suspension use the reasons WITHIN that section that WILL NOT provide “innocence” or make any difference to the Novice driver? A catch 22 because getting a 12 hour or 24 hour suspension for the Novice has the same ramifications. A further review by the OSMV and loss of his/her license.
And, what if the driver had time between the accident and talking to the police to drink some alcohol? That changes things all together. Why is there a section like 90.3 then, if the Novice driver can fall under section 215? There must be a reason. Would it be that a Novice driver can “get away” with a 24 hour suspension by requesting and blowing below .05, but will get “nailed” with a 12 hour suspension by showing ANY alcohol in their system. Oh, there’s that catch 22 again, they both have the same ramifications. Perhaps the police should START with a 12 hour suspension procedure when stopping a Novice driver, and working up from there!
Well, lets start with a simple definition from the Motor Vehicle Act:
"driver" means a person who drives or is in actual physical control of a vehicle;
It doesn't say anything here about age, experience or anything else. If we drive or have physical control, we are the driver for the purposes of this law.
Now, let's take a look at section 90.3, which aims to enforce that drivers in the GLP, regardless of their age, must have a zero blood alcohol level when they are driving:
12 hour suspension
90.3 (1) In this section:
"approved screening device" means a device prescribed for the purposes of this section;
"driver" means a driver who holds a driver's licence on which a condition is imposed under section 25 (10.1) and includes any such person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion.
(2) 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 has alcohol in his or her body,
(a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road, and
(b) by demand made to that driver, require the driver to promptly provide a sample of breath that, in the opinion of the peace officer, is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling that sample of breath to be taken.
(3) If
(a) a driver, without a reasonable excuse, fails or refuses to comply with a demand made under subsection (2) (b), or
(b) the peace officer, pursuant to an analysis of the breath of the driver under subsection (2) (b), has reasonable and probable grounds to believe that the driver has alcohol in his or her body, the peace officer may
(c) serve the driver with a notice of licence suspension, and (d) if the driver is in possession of a driver's licence, request the driver to surrender that licence.
(4) If a peace officer requests a driver to surrender the driver's licence under subsection (3) (d), the driver must promptly surrender the driver's licence to the peace officer.
(5) A person's driver's licence is automatically suspended for a period of 12 hours from the time the peace officer served the driver with a notice of licence suspension under subsection (3) (c).
(6) [Repealed 2004-68-8.]
(7) A peace officer acting under subsection (3) need not hold the opinion that the blood alcohol level of the driver exceeds 3 mg of alcohol in 100 ml of blood.
(8) If a peace officer serves a notice of licence suspension under subsection (3) (c), the peace officer must cause a report of the suspension to be delivered to the Insurance Corporation of British Columbia.
(9) The report referred to in subsection (8) must be in a form established by the Insurance Corporation of British Columbia.
(10) The Lieutenant Governor in Council may prescribe an approved screening device for the purposes of this section.
This section of the Act essentially says that if the officer believes that a GLP driver has alcohol in their body, regardless of how much, they may direct the driver to park and comply with testing using a screening device. If the driver fails to comply, without reasonable excuse, or the screening device shows any alcohol in the result, the officer may suspend the GLP driver's licence for 12 hours.
The oversight on this is an appeal to the Superintendent and failing that, a review of the Superintendent's judgement by the court.
We have now covered what happens to a GLP driver who has a measurable level of alcohol in their blood between 3 mg% and 49 mg%. End of this part of the discussion.
Now we can move on to section 215 MVA, which applies to all drivers equally:
24 hour prohibition
215 (1) In this section:
"approved screening device" means a device prescribed by the Lieutenant Governor in Council for the purposes of this section;
"driver" includes a person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion.
(2) 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,
(a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road,
(b) serve the driver with a notice of driving prohibition, and
(c) if the driver is in possession of a driver's licence, request the driver to surrender that licence.
(3) 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 a drug, other than alcohol,
(a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road,
(b) serve the driver with a notice of driving prohibition, and
(c) if the driver is in possession of a driver's licence, request the driver to surrender that licence.
(4) If a peace officer requests a driver to surrender his or her driver's licence under this section, the driver must forthwith surrender to the peace officer his or her driver's licence issued under this Act or any document issued in another jurisdiction that allows him or her to drive or operate a motor vehicle.
(5) Unless the prohibition from driving a motor vehicle is terminated under subsection (6) or (8), the driver is automatically prohibited from driving a motor vehicle for a period of 24 hours from the time the peace officer served the driver with a notice of driving prohibition under subsection (2) or (3).
(6) If a driver, who is served with a notice of driving prohibition under subsection (2), forthwith requests a peace officer to administer and does undergo as soon as practicable a test that indicates that his or her blood alcohol level does not exceed 50 mg of alcohol in 100 mL of blood, the prohibition from driving is terminated.
(6.1) A test referred to in subsection (6) may be performed with an approved screening device.
(6.2) Despite subsection (6), a driver who is served with a notice of driving prohibition does not have a right to request or undergo a test under subsection (6) if
(a) the peace officer who served the notice first performed a test of the driver's blood alcohol level with an approved screening device,
(b) the test indicated that the driver's blood alcohol level exceeded 50 mg of alcohol in 100mL of blood, and
(c) the peace officer used the results of the test as part of the basis on which the peace officer formed reasonable and probable grounds to believe that the driver's ability to drive a motor vehicle was affected by alcohol.
(7) [Repealed 2004-68-18.]
(8) If a driver, who is served with a notice of driving prohibition under subsection (3), satisfies a peace officer having charge of the matter that his or her ability to drive a motor vehicle is not affected by a drug, other than alcohol, the prohibition from driving is terminated.
(9) A peace officer acting under subsection (2) need not hold the opinion that the blood alcohol level of the driver exceeds 50 mg of alcohol in 100 mL of blood.
(10) If a peace officer prohibits a person from driving a motor vehicle under this section, the peace officer must cause a report of the prohibition to be delivered to the Insurance Corporation of British Columbia unless the prohibition from driving a motor vehicle is terminated under subsection (6).
(11) The report referred to in subsection (10) must be in a form established by the Insurance Corporation of British Columbia.
(12) The Lieutenant Governor in Council may prescribe an approved screening device for the purposes of this section.
This section must be considered separately from section 90.3. The two are not connected in law other than that they are in the same piece of legislation.
In this section, in order to suspend, the officer must hold the opinion that the driver's ability to drive is affected by alcohol or a drug. We'll deal with only the alcohol portion in this thread. The officer can determine this solely though observation and inquiry of the driver and how the driver has been driving if it is not a case of care and control. If the officer uses a screening device the result can be used to help form the opinion.
If the officer does not use a screening device, the driver does have the ability at this point to be tested with one. If the test shows a blood alcohol level of less than 50 mg%, the prohibition is terminated.
This is a completely separate investigation by the officer from one conducted under section 90.3, although the breath sample taken can be used as evidence for the application of either section.
Aside from the demand for a breath test if one was not given initially for the application of section 215, the appeal of the officer's decision is again an adjudication by the Superintendent, which may be reviewed by the courts.
The next step up is either the application of the Criminal Code or the Immediate Roadside Prohibition provisions of the Motor Vehicle Act. This is where the legal authority comes from to apply the screening device outside of section 90.3:
253(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
If a test under 253(2)(b) does not show a fail, but is over 49 mg%, the officer can use it to form part of his opinion under section 215 MVA.
Finally, let's look at further sanctions that the Superintendent takes when the 90.3 or 215 notice (or for that matter, the notice of a criminal conviction for impaired driving or application of the IRP) reaches the Superintendent's office. Again, these are separate from the actions taken under either those sections. The guidelines the Superintendent applies set out under what is called the Driver Improvement Program. These further sanctions are applied to all drivers, but the threshold for action is much lower in the case of a GLP driver. These sanctions are also applied under the provisions of the Motor Vehicle Act:
Prohibition against driving by superintendent
93 (1) Even though a person is or may be subject to another prohibition from driving, if the superintendent considers it to be in the public interest, the superintendent may, with or without a hearing, prohibit the person from driving a motor vehicle
(a) if the person
(i) has failed to comply with this Act or the regulations, or
(ii) has a driving record that in the opinion of the superintendent is unsatisfactory,
(b) if the person's privilege of driving a motor vehicle has been suspended or cancelled in any jurisdiction in Canada or in the United States of America, or
(c) for any cause not referred to in paragraph (a) or (b) that relates to the use or operation of motor vehicles.
(2) In forming an opinion as to whether a person's driving record is unsatisfactory the superintendent may consider all or any part of the person's driving record, including but not limited to any part of the driving record previously taken into account by a court or by the superintendent in making any order prohibiting the person from driving a motor vehicle.
(3) If under this section the superintendent prohibits a person from driving a motor vehicle on the grounds of an unsatisfactory driving record, a prohibition so made must not be held invalid on the grounds that the superintendent did not examine or consider other information or evidence.
The Superintendent's decision to apply the Driver Improvement Program may also be reviewed by the courts.
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I appreciate your patience Tim!! I just want you to know that I'm not combative, just trying to put forward a point as to why the 24 hour suspension is unfair to the Novice driver as a first step in the investigation.
I agree with everything you state above regarding the letter of the law, section 215 being apples, and section 90.3 being oranges. But remember, drivers are categorized .... regular drivers(apples) and Novice drivers (oranges). I still believe that section 215 of the MVA is unfair or even uncontitutional for the Novice driver and I will try to put this from "brain to paper" in the least "un-confusing" way possible. I know there is two different sections (215 and 90.3) involved here...but bear with me.
The definition "driver" in section 215 includes a person driving a vehicle (etc) and yes, a Novice driver falls within this description. But after that, the Novice does NOT fall into that description. The driver refered to in this section is one that is said to be able to operate a vehicle legally with less than .05 BAC........ that is not the description of the novice driver. You see what I'm getting at? See section 215(6). This does not really apply to the novice, as they are not to have ANY alcohol in their system, so testing below .05 does NOT save his "butt", all it means is that the Novice driver will now face a 12 hour suspension instead of a 24 hour suspension......so (as stated in 215(6)), the prohibition is not really terminated, it is just a different length of time. This is where is it different for the Novice driver, and where the Novice driver does not , technically, fall into the description of this section. The driver refered to in this section is one that is said to be able to operate a vehicle legally with less than .05 BAC........ that is not the description of the novice driver. The novice driver cannot use the entire section to help his case and this is what makes this section unfair (to the novice driver)....in my way of thinking.
Section 90.3 is specific to the driver in the GLP. This is the section that should be applied to a Novice driver when an officer suspects ANY alcohol in the drivers system.
Here is a scenario, in point form.
Police pull over a Novice driver.
Police suspect alcohol "involvement" and issue a 24 hour suspension
The driver requests a roadside test
The driver blows below .05
Police now issue the 12 hour suspension because of indication of alcohol in system.
So, in the above scenario, only the issuing of the 24 hour suspension in this section worked....for the police......the "way out" didn't work for the driver. Next scenario.
Police pull over a "regular" driver.
Police suspect alcohol involvement and issue a 24 hour suspension
The driver requests a roadside test
The driver blows below .05
Driver is free to go.
Why does this work out? Because there is a sub section within 215 that allows the "regular" driver to prove "innocence" and carry on his way.
Another scenario and the way a "drinking and driving" investigation should begin with a Novice driver.
Police pull over a Novice driver
Police suspect alcohol involvement and "enacts" section 90.3
Roadside test demanded by officer
12 hour suspension issued IF between 0.00 and .049, 24 hour suspension for .05 to .08, and regular impaired sanctions applied if driver blows over .08.
To put it simply....the driver description in section 215 is of a driver that can legally operated a vehicle under .05 BAC. (because blowing under .05 let's them off the hook). Would you agree to that?
But, that is NOT the description of a Novice driver. Section 90.3 describes the Novice driver with "a condition imposed under section 25 (10.1) which doesn't allow ANY alcohol within the drivers system. Thus, in my mind, section 90.3 should be enacted FIRST when officers deal with a novice driver in a "drinking and driving" investigation.
Harry
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We have two classes of driver in BC: those that are allowed to drive legally with a BAC between 0 and 49 mg% and those that aren't. Those that aren't are in the GLP, and those that are will be any other driver with a valid licence. My personal opinion, shared by many lawyers I have spoken with, is that we should all be treated like GLP drivers when it comes to the consumption of alcohol when driving. If you drink, you can't drive, and if you drive, you can't drink. Period.
To my mind, the investigation actually occurs in the reverse. The officer stops a drinking driver, forms the opinion that the driver has alcohol in their body, demands a screen pursuant to the criminal code and then decides which action is appropriate base on the law. If the driver is over 100 mg% it's either criminal impaired or the new IRP. If they are between 50 and 99 mg% then a 215 prohibition is imposed. If they are more than zero, under 50 mg% and in the GLP the 90.3 suspension is imposed.
We don't take a GLP driver who blows a fail (> 100 mg%), apply 90.3 and then stop. Nor do we take one who blows a warn (50 to 99 mg%) apply 90.3 and then stop. 90.3 only applies to GLP drivers whose BAC is over 0 and under 50 mg%.
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I know the police are following the MVA. In your answer above, you talk about a roadside test that is demanded by the police, and I fully agree. I also agree with, if you drink, dont' drive!!! Totally! But that is not my argument in this particular thread.
Okay, so a novice driver is pulled over.......and issued a 24 hour suspension. The driver requests a roadside test to prove that he is below .05 and does test to .04. Well, that gets the novice driver off the 24 hour prohibition. Because that didn't work, the officer can NOW issue a 12 hour suspension, with the proof of the just completed roadside test (which is required to be done anyways, under section 90.3) BUT, the novice driver just incriminated himself by asking for the roadside test, and in Canada, we have the right to NOT incriminate ourself.
I know that the police can demand a roadside test, and a novice driver "giving" their breath sample is not considered self incimination, because it was demanded of them. But, the novice driver ASKING for the roadside test and blowing .04 IS self incrimination. You see the difference? The novice driver has just provided evidence that they are not "guilty" of a 24 hour suspension, BUT , in doing the same "act" incriminates themself to another charge...the 12 hour suspension. They ARE two different charges....not different degrees of "punishment".
The way I see it, the officer cannot use "volunteered" evidence from one "case" or "proceeding" (24 hour prohibition), in another "case" or "proceeding" (12 hour suspension). This is why section 90.3 should be enacted FIRST when initiating an investigation into drinking and driving with a Novice driver.
And, they cannot be considered the same thing. 12 hour suspension means "temporary revocation or removal" of license, and the 24 hour prohibition means "prohibited from driving" but does not include an "interruption" of your license. A difference!
Thanks Tim!
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Chances are that very few 215s are invoked without the use of the ASD these days.
However, the novice has to balance the probabilities when they request a breath test if they are 215'd without an ASD. In a sense, they have nothing to lose by doing so. If they haven't been drinking, neither sanction will apply. If they have been drinking, better to wind up with a 12 hour rather than a 24.
One point we haven't visited is what would happen if the novice blew a fail. That too would mean a change in the investigation, this time either criminal or IRP.
Short story, when you are in the GLP, chances are you aren't old enough to drink legally in most cases, and if you choose to break that rule, and then are foolish enough to get behind the wheel, it's pretty hard to complain when something happens to you. It's not like you didn't know in both cases that you shouldn't be doing what you chose to do.
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Well, the police MUST use a ASD if they want to enforce the more stringent rules that came out in the fall of last year. So, this is why you will see less 24 hour prohibitions given WITHOUT a roadside test.
Your second paragraph has a "glitch" and this is why. A novice driver's ramifications are worse with a 12 hour suspension, than with a 24 hour prohibition. They will still have their license suspended by the OSMV after a revue, BUT because it is a 12 hour suspension, they will also have to pay a $250 license reinstatement fee. All the more reason that this section 215 is a "catch 22" situation for a novice driver. If they get a 24 hour prohibition, they will still have their license suspended after a revue.
I agree with your point, if a novice (or anyone) fails ..throw the book at them! If a section 90.3 is done, and they fail .....give them what is coming to them!
If, novice drivers are given a 24 hour prohibition, and are not in the position (constitutionally or have the knowledge to do so) to ask for a roadside test, AND the police don't request a roadsite test, how ........can the OSMV enforce their consequences stated here?
https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/r…
In that statement, and it is in BOLD lettering...."face the following consequences" of which the 12 hour suspension is first on the list. This means that, to anyone that would read this section, the novice driver WILL/MUST receive a 12 hour immediate roadside suspension (90.3) by the police. But how can that happen if a novice driver doesn't request, and the officer doesn't demand a roadside test? The driver can't possibly get a 12 hour suspension 2 weeks later...by the OSMV, I'm sure. No, he can't ...it has to be an immediate roadside suspension.
You see, what confuses me is this. The OSMV rejected a N drivers appeal of the 24 hour prohibition because he was satisfied that..... " the driver had the right to ask for a roadside test, and the officer did not deny any roadside test request". To me, that is bogus, because the same office mandates that a driver in the GLP will face a 12 hour suspension and that is not being accomplished by officers handing out 24 hour prohibitions to N drivers that DON'T request a roadside test. THIS is one reason I believe a section 215 does not apply to the N driver, but the police should use section 90.3. In that procedure, the OSMV gets their "12 hour suspension" (remember, mandatory) and the police take the driver off the road ...doing their job. Does this make sense?
Please also remember (in my way of thinking any ways), section 215 is setup for a (regular) driver that is LEGAL to drive with .01 - .05 BAC (because anything below .05 terminates the prohibition) and not a N driver who is NOT allowed ANY alcohol in their system. I mean, why have section 90.3 then, just use section 215. Section 90.3 is in the motor vehicle act to provide procedure for N drivers and to satisfy the OSMV.
You know, I should let the powers that be know about this situation. With the $250 license reinstatement the N driver has to pay after a 12 hour suspension and the lack of the issuing of that charge (because the police are just firing out 24 hour prohibitions to novice drivers) ...look at all the money the province is missing out on!
But maybe not ....you know what my son has paid so far for "appeal" fees (not that it does any good) ? Well, $200 for the fee to appeal the initial 24 hour suspension and then $100 for the fee to appeal the "intent to suspend" his license for 4 months, which we're thinking won't do any good any ways but has to be tried. Then there are the fees to apply for an appeal to the Supreme Court of Canada. So, the province is making over $300 on the appeal fees. Will we get any of this money back if our appeal is held up in the Supreme Court? Nope .....we can't even get the towing and impound fees back!
Hope you're enjoying your weekend! I'm going fishing tomorrow .....try to give my mind a break from this!
Harry
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Amount payable to reinstate driver's licence
97.2 If, under this Act, the Criminal Code, the Youth Justice Act (Canada) or the Youth Criminal Justice Act (Canada),
(a) a person is or was prohibited from driving a motor vehicle,
(b) a person's driver's licence is or was suspended, or
(c) a person's right to apply for or obtain a driver's licence is or was suspended,
except in the case of a licence suspension under section 90.3 or a prohibition under section 215, the amount payable to reinstate a driver's licence following the prohibition or suspension, in addition to any other fee prescribed, is $250.
It appears to me that the $250 reinstatement fee doesn't apply to actions under either 90.3 or 215. It comes later when the GLP driver is prohibited under the Driver Improvement Program, and that won't matter if the action that triggered it came under either section.
The suspension under 90.3 is discretionary for police. The wording in 90.3 says "may" not "must."
I find the Superintendent's site misleading, as there is no provision in 90.3 for suspending a driver for drug use.
There is no provision for impoundment solely for an action under 90.3. I've already discussed that. In you son's case, I would imagine that the vehicle was towed because it was no longer driveable or could not be driven from where it came to rest. Unless ICBC invalidates your coverage due to alcohol involvement, those fees should be looked after as part of your collision claim if you are making one.
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Yup, you're correct on the $250 dollar reinstatement fee, it would be a part of the DIP license suspension. Thanks for that clarification!
Perhaps I may be reading section 90.3 wrong also and maybe you can "shake" my brain on this. The suspension under 90.3 is discretionary for the police as the wording says "may" as you say.
My thinking (you tired of my thinking yet hehehe) , that "may" in 90.3(2) only refers to the point that an officer "may" pull you over "if they suspect the driver has alcohol in his or her body" .in 90.3 (2). Sections 90.3 (2)(a)(b) has the wording "request the driver" and "by demand" as to what the officer must to do after "fulfilling" the requirements of 90.3 (2) .
The word "may" in section 90.3 (3) kind of confuses me though. If a novice driver has alcohol in their system (by contradiction of section 25(10.1)), is an officer not legally bound to impose the 12 hour suspension? With a novice driver, it is cut and dried as to the level of alcohol in their system .... none! Don't take me wrong, if a police officer, in their own discretion and having fulfilled section 90.3(3)b, lets a novice driver go with no 12 hour suspension, this driver is a very lucky person! It still comes down to a point I've always made though, a novice driver MUST be given a roadside test when being investigated for drinking and driving, which again is different than for a "regular" driver.
My sons truck was not just towed, but was impounded by the officer. These are fees that are unrecoverable. Without an roadside check (which enables the police to follow the more stringent policies of last year), impounding of a vehicle is NOT mandatory. Under a 24 hour prohibition scenario, the officer can/may have the vehicle impounded IF the officer deems it necessary to PREVENT the driver from driving said vehicle during the 24 hour prohibition. Justin's truck was not drive able, he should have been asked..."where do you want your truck towed to?", we know they can't just leave it in the ditch.
A question to you Tim, and this may be the "crux" of what I am saying about all this. Can a regular driver get a 12 hour suspension? No, because that is designed for a driver holding a license under 25(10.1) and a regular driver does not fit this description. Can a Novice driver get a 24 hour prohibition? It appears they can ..... and I would consider this a double standard, but really, the novice driver DOESN'T fit the description of the driver in that section ....a driver that is legal to drive with a BAC under .05.
On a side note, this is what Justin received that night:
24 hour prohibition (because the officer smelled beer on his breath an hour later) There is "lack of continuance" here and LOTS of room for error on the officers part to assume he had alcohol in his system, driving into the ditch. If I, as a regular driver, were to get this 24 hour prohibition and it is my first one, there are NO other ramifications other than it is on my driving record. A regular driver should, and in most cases, would take this as lesson learned.
Driving without due care and attention (because he looked at his cell phone and the reason he went into the ditch) You know, there is a ticket out there designed for this ......"electronic distraction" and Justin would have gladly paid the $165 and paid for that part, as he admitted to the police of his wrong doing there. Many "legally impaired" drivers get their "impaired" charges reduced to "driving without due care and attention" when their cases come to court. Now this driver gets the same charge for looking at his cell phone? Another thing, if this police officer gave this ticket as a reason the accident happened, why would she also think "driving impairment" caused it also?
Impounding of his truck (which was not drive able) and by law, sould have been towed to his house on his request. The law does not require the officer to impound the vehicle, unless they are following the new policies, where a roadside test is required to enact.
Letter of intent to have his license suspended for 4 months due to the DIP.
Man, did he get nailed hard for looking at his cell phone and having a single vehicle accident. I believe the officer had an issue with Justin even before she began dealing with him (upset with Justin because she thought he "abandoned" his dog at the scene etc). Looking back at this, Justin should have been smart and went back to his truck the next day, but he wasn't ....he was responsible enough to go back to the scene after getting cleaned up at a buddies house.
At any time Tim, you can call this "case/discussion" closed and I will not be offended as I know you have limited time on your hands. I find this conversation exactly what I need ....a "sounding board" or view from the "other" side of things! Thank you!
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A letter of response to the letter of intent to suspend would be appropriate. Explain in detail how this has affected your son and what he has learned from it. Ask for a reduction in the length of the suspension if the suspension will not be foregone in the circumstances.
Dispute the ticket. Offer to plead guilty to failing to keep right prior to trial if you think that this is appropriate. There isn't anything wrong with making the officer prove the case. I would be willing to bet that your son's admission to looking at the cell phone was not a warned admission and if he chooses not to give evidence, it may be difficult to have it entered as evidence as a voluntary statement. Chances are, he probably thought that he had to tell the officer why he went off the road.
Ultimately, the thing that continues to bother me about this whole incident is that your son, injured to the extent that medical attention was required, still felt it was a better choice to go somewhere else and drink alcohol. Not having been present to know the full circumstances and not knowing your son at all, this seems to my cynical mind to be an attempt to cover up drinking prior to the collision. Of course, it may not be, but my experience in the investigation of impaired drivers has shown me that this is the usual reason for post incident alcohol consumption.
I often wonder what the world would be like if there were no substances like alcohol for us to use as a recreational drug or people took their responsibilities as a driver seriously enough that they didn't get behind the wheel after consuming, regardless of the amount. I know that we would need far fewer police officers, society would pay far fewer costs and a lot of people would still be alive today. Alcohol fuels poor life choices for some, doesn't it?
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The part that bothers you about Justin having gone to go somewhere else for a few beers instead of seeking medical intention can be straightened out here. After the accident, and he exited his truck .....the owner of the property told Justin he did not want him on his property with his kids around, told him to take off. (We have a letter from him stating this emphatically). Now, if someone is in shock and panicking, would it not seem realistic to go where you know you CAN get help? A friends just down the road? I would! Anyone who has choked on something, panics and normally looks for someone to help right away! It was in his mind to get help .....but WHILE getting help and getting cleaned up, he had the beer, and remember ....that is not illegal. So, he just didn't go somewhere to have a beer to "cover up" drinking prior to the accident, he went for help. Does this make sense?
Ditto on your last paragraph Tim! Alcohol fuels poor life choices ...not only in driving! I drive transit bus for a living, and see many drivers that think driving is a right, not a privilege! I would say that the entire MVA is based on the fact that driving is a privilege and more drivers should be aware of this. Please don't get me wrong, we here in our family have great respect for police and the job they do. It takes a certain type of person, but sometimes they can have a bad day too! After all, they are just human! :D
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Oh by the way, and I agree with your last paragraph also ......true! What started this whole thing out for us here, is the officer dealt with my son almost an hour later after the accident ("not having continuity" ....good police jargon eh?) and gave him a 24 hour prohibition because she smelled beer on his breath. Well, you know the rest of the story on that one. The further I delve into this, the more I got into what this particular thread is all about. Section 215 or section 90.3? :D
Harry
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“If a blood alcohol test was NOT administered and was not a basis for serving this notice, you have the RIGHT to forthwith request a test to determine your blood level.In the event the test indicates that your blood alcohol level does not exceed 50 milligrams of alcohol in 100 millilitres of blood, the prohibition from driving is terminated. The prohibition will not appear on your driving record and you will be allowed to drive.”
Two things of importance come out of this paragraph.
One is the word "right"....it is a driver's right to request the test. A person that is arrested gets the Miranda rights read to them(not given a piece of paper to read their rights)... and it's mandatory! They also will be asked if they understand them. I'll bet 90% of the human race knows about the Miranda rights...just watch a cop show on TV! How many people know about the right to request a roadside test? From my "poll", maybe 30% of the people and that is generous. The driver is either supposed to know the full details of section 215, or read the back of the ticket at some point...WHILE they are dealing with the officer. How many would tell the officer to please give me a few minutes to read this all over? All the more reason a driver has to be INFORMED of this "right" . The officer should also ask if the driver understands this right.
Second. Do you see what I have underlined in that paragraph? Isn't that a contradiction in the case of a novice? A novice is not allowed to drive while having alcohol in their system. Do you see the position this puts an officer in if the novice driver requests a roadside test, and blows .03? According to that statement, on this official document, the novice driver is allowed to drive. Do you see the position the novice driver is in? According to that statement, on this official document, the novice driver is allowed to drive. It not only says that the 24 hour prohibition is terminated, it ALSO says that he is allowed to drive. If a person says, "well that part doesn't apply to the novice driver", why should the rest of this "document" apply? You say, in your "officers" mind (respectfully said Tim), well...if you read the section, it only says that the prohibition is terminated.....it doesn't say the "driver" is allowed to drive. As police, we go by what the MVA says. Then, I say (stubborn me)....what good is my reading those rights on the back of the ticket if it's not correct? It would be correct for a "regular" driver, but NOT a novice driver. Do you see why I believe that the 24 hour prohibition is NOT designed or applicable to novice drivers. I know it's all semantics, but isn't that what reading the "law" is? What if the novice driver leaves the location of this event and hits a pedestrian attributed, in part,to the .03 BAC? Is the officer then partially responsible? I know Federal "law, section 215" supercedes Provincial "law, section 90.3) , so , the officer has the right to "ignore" the provincial level and stick with the federal level. But then, how much value can be held to provincial "sections" in the MVA?
I sent an email to the OSMV regarding the 12 hour suspension and the reply I recieved worries me. This was their reply:
_____________________________________________________
Thank you for your email.
Please be advised that as the legislation states, police can issue 12 hour suspensions if the police officer suspects the driver has drugs or alcohol in their system without a roadside test.
You may wish to contact your local police department or ICBC Customer Contact toll free at 1-800-950-1498 for more information.
_______________________________________________
I believe that this statement is wrong and here's why:
Section 90.3 does have many instances of the word "may", and quickly read would lead you to believe that it's all up to the police officers discretion. But it isn't. The first time the word "may" is stated is in 90.3(2), simply meaning the officer may pull you over. Section 90.3(2)b must be done because of "section 90.3(3)a , where a refusal to comply with the demand MADE under 90.3(2)b can be cause of a 12 hour suspension."{ Section 90.3(3)b has the word "pursuant" (meaning Proceeding from and conformable to; in accordance with) which means AFTER the analysis of the breath (roadside test) and refers , again, back to90.3(2)b.
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Miranda is something that you will only find in the United States. In Canada we call it the Charter of Rights and Freedoms, and it requires that the police advise you of your right to legal counsel if you have been arrested or detained. It does not require that they notify you of your right to a breath test under section 215 MVA.
I agree with you, unless the law has changed, my reading of section 90.3 does not allow a peace officer to suspend for drug use nor does it allow for a suspension without the use of an ASD. Section 215 MVA does though.
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Comparing Apples and Oranges...