Script 190 gives general information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
If the police do not issue an IRP under the BC Motor Vehicle Act, they may charge you with any of the following 3 serious criminal charges under the Criminal Code of Canada (available at http://laws-lois.justice.gc.ca/eng) if you drink and drive:
- “impaired driving” (caused by alcohol or drugs – both legal prescription drugs and illegal ones)
- driving with a blood-alcohol level over 80 milligrams (called “over .08”)
- failing or refusing to provide breath or blood samples on demand (called “refusing to blow”)
Although this script deals only with driving a vehicle, these charges apply if you’re driving a car, boat, plane, or other motor vehicle or 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. Care or control of a vehicle means you were in the driver’s seat and had access to the ignition key, even if you were parked.
If the police stop you, what tests must you take?
a. Blow into an approved roadside-screening device or ASD
If you are operating a vehicle or have care or control of it (even if it’s not moving) and the police reasonably suspect that you have alcohol in your body, they may legally require, or demand, that you immediately blow into a small machine called an approved roadside-screening device or ASD. If the police don’t do this right away, they may not be able to use your readings at trial.
Before requiring you to blow, the police do not have to tell you that you have a Charter right, under section 10(b), to call a lawyer. And you don’t have the right to speak to a lawyer before you decide whether to blow or refuse – you have to decide right away. If you refuse, it’s hard to win in court.
The ASD tests for alcohol in your body, and it can show a “pass,” “warn,” or “fail.” It shows a warn for blood-alcohol levels between 50 and 100 milligrams of alcohol in 100 milliliters of blood, and a fail for levels of 100 milligrams or higher. The legal limit is 80 milligrams, called .08. If the ASD shows a pass, the police will probably let you leave. (But that’s not automatic – see the section below called, “What can happen under the BC Motor Vehicle Act – even if you’re not over .08.”) If the ASD shows a warn or fail, the police may demand you take a breathalyzer test.
b. Take a breathalyzer test
A breathalyzer is a machine that measures the alcohol in your breath to see if you have more than the legal limit of .08. It’s more accurate than the ASD, and is operated by a qualified technician.
The police may demand you take a breathalyzer test only if they have reasonable and probable grounds to believe that you are:
- operating a vehicle, or having care or control of it, while your ability is impaired, or
- committing, or have committed in the previous 3 hours, the offence of impaired driving.
This means the police must have good reason to believe your ability to drive is impaired by alcohol. The police often use a fail result on the ASD as reasonable and probable grounds to demand a breathalyzer test.
If the police demand that you take a breathalyzer test, you must:
- go with the police to where the breathalyzer is located (usually, the local police station), and
- give breath samples (usually two) so your blood-alcohol level can be analyzed.
Because you are legally held, or detained, the police must tell you of your right to a lawyer – and other Charter rights – before you give breath samples. They must also give you a chance to contact a lawyer you choose – a private lawyer or a Legal Aid Duty Counsel – before you give breath samples. The police must stop trying to get samples or other evidence from you until you have had the chance to talk with a lawyer in private. For more on Charter rights, refer to scripts 200 and 230.
If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner take samples of your blood for analysis. The medical practitioner must be satisfied that taking samples won’t harm you. You have the right to speak to a lawyer before giving a blood sample.
If you are unconscious, you can’t agree to give a sample. So the police must get a warrant to take samples, which they can get by phoning a judge.
Things you don’t have to do
You don’t have to tell the police whether you drank or how much you drank. Later, at your trial, the court cannot use your refusal to do the tests as evidence to find you guilty.
Summary of what you must do
If the police demand it, you must:
- blow into the ASD.
- go with the police and give breath or blood samples for further analysis.
You must do these things unless you have a reasonable excuse not to. If you refuse to do them, you are committing an offence.
What is a reasonable excuse to refuse to blow into an ASD, or give breath or blood samples?
Courts are strict about what a reasonable excuse is. You may have a reasonable excuse to refuse a breathalyzer demand, for example, if the police don’t let you speak privately to a lawyer first . But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or exercise, those rights and speak to a lawyer. The legal issues are complicated and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.
How does the breathalyzer work?
The breathalyzer is a machine that samples deep lung air by using infra-red light to measure the concentration of alcohol in a person’s blood. It gives the results in milligrams per 100 milliliters. If you have over 80 milligrams (called “over .08”) you are legally too drunk to drive, and can be convicted of a criminal offence.
The technician will ask you to breathe deeply into a plastic mouthpiece connected to the machine. It takes several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. Then the technician will give you a certificate describing the test results. Keep it, and give it to your lawyer.
You won’t be charged with over .08 if the test results are less than 80 milligrams of alcohol. But, even with a result under 80 milligrams, or no breathalyzer test, the police can take your licence and stop you from driving for 24 hours if they believe your ability to drive is affected by alcohol.
What if your test results are over .08 or you refuse to blow?
If your results are over .08, you will be charged under the Criminal Code with over .08. If you fail to give a breath or blood sample, you will be charged with refusing to blow. You could also be charged with impaired driving.
As well, t he technician must complete a certificate of the test results and send a copy to the BC Superintendent of Motor Vehicles, along with a report explaining why the samples were taken. The police can then issue a 90-day Administrative Driving Prohibition (ADP), with a Prohibition Notice – separate from any Criminal Code penalties. This Notice is your temporary license until the ADP starts – 21 days after the Notice is served on you. You have 7 days to ask for a review of an ADP, by applying to the Superintendent of Motor Vehicles for a review. An oral review costs $200 and a written review costs $100. An adjudicator hears your review and decides whether to confirm or cancel the ADP.
You can apply for a review if you:
- were not operating or did not have care or control of a motor vehicle,
- did not have a blood alcohol level over .08 within 3 hours of driving,
- did not fail or refuse to provide a breath sample, or
- had a reasonable excuse for failing to comply with a demand for a breath or blood alcohol test.
If you apply for a review of the ADP, the driving prohibition doesn’t start until the review is finished.
What happens in court?
If you are charged with any of the 3 Criminal Code offences, you or your agent will have to go to court. There are legal defences to the three charges, but they are very technical and you need legal advice. You should get at least some initial advice from a lawyer, even if you decide not to have one in court.
The prosecutor must prove beyond a reasonable doubt that you committed the offence. For impaireddriving, the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.
For over .08, the prosecutor must prove your blood alcohol level was over 80 milligrams and there was no error in the reading. And for failing to blow, the prosecutor must prove that you failed to give samples – without a reasonable excuse.
The prosecutor normally calls as witnesses the police officer that stopped you, and any other people who saw you . The witnesses would tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include the smell of alcohol on the breath, bloodshot eyes, poor balance, or slurred speech.
You have the right to testify (tell the court your side) and you may want to, if you can explain what the witnesses said and raise a reasonable doubt whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech.
What are the penalties under the Criminal Code?
For a first offence of over.08, impaired driving, or refusing to blow, the mandatory minimum sentence is a $1000 fine and a driving prohibition between 1 and 3 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.
Previous drinking and driving convictions mean higher penalties – usually at least 30 days in jail for a second offence , and at least 120 days in jail for each offence after that. Plus, driving prohibitions are longer: between 2 and 5 years for a second conviction and 3 years to life for a third or later conviction. And if you kill or injure someone by drinking and driving, you risk being sued for a lot of money and your insurance company will not cover you. The penalty for killing someone while impaired or over .08 is always a jail term.
Convictions under the Criminal Code also mean you have to pay much higher vehicle insurance premiums . The website of the Insurance Corporation of BC (ICBC) has more on this at www.icbc.com/driver-licensing/tickets/risk-premium.
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