March 2014

I deal with a lot of cases involving charges of driving while prohibited. I also talk to a number of individuals who are serving driving prohibitions and are curious about the consequences of driving while they are prohibited. It is a Motor Vehicle Act offence to drive while prohibited, and a Criminal Code offence to drive while disqualified. So do not do it. You will most likely get caught.

How Do People Get Caught?
A lot of people seem to believe that if they do not do anything wrong with their driving, they will be able to drive while prohibited undetected. Police officers scan license plates while they are driving. Technology now enables officers to automatically scan thousands of license plates an hour. Anytime a plate comes back as a “hit” the police will pull the vehicle over to investigate. This technology is known as Automated License Plate Recognition. According to statistics reported on the DriveSmartBC blog, 1944 people were charged for driving without a license and 313 people charged with driving while prohibited in 2013 alone. The BC RCMP statistics show that in a period of fewer than two years, 3.6 Million license plates were scanned using ALPR technology.

How Do They Prove The Case?
Driving while prohibited cases are unique. The Crown must prove only that the person charged was driving, was prohibited, and knew he or she was prohibited. Evidentiary shortcuts in the Motor Vehicle Act allow the Crown to introduce documentary evidence, such as the driving record, letters from ICBC/OSMV, and Certificates from the Superintendent of Motor Vehicles or President of ICBC as proof of these facts. The documentary evidence creates a rebuttable presumption that the accused knew he or she was prohibited. Which makes defending these cases more difficult, although certainly not impossible.

There are defences to driving while prohibited charges. Mens rea must be proven. But knowing these defences involves a lot of research and particular knowledge. There are some defences that no longer work for driving while prohibited charges.

Consequences: 
Many people, on learning that a driving while prohibited charge is a Motor Vehicle Act offence, do not think the charges are serious. This is a mistake.

The consequences for driving while prohibited are significant. On a first conviction, the mandatory minimum penalty is a $500 fine and a one-year driving prohibition, pursuant to Section 99 of the Motor Vehicle Act. On a subsequent conviction, there is a mandatory minimum fine of $500 and a mandatory jail sentence of no less than 14 days. These cases must therefore be taken seriously.

As reported on the Acumen Law Blog recently, the breathalyzer doesn’t always work correctly. And key to defending any Immediate Roadside Prohibition case is understanding how these devices work.

But sometimes, errors occur that cannot be explained. As you can see in the above video, the Alco-Sensor IV DWF device simply would not accept my breath sample. I have blown into this and other breathalyzer and approved screening devices probably thousands of times. I have experimented with blowing hard, blowing soft, blowing for a short time, and blowing for a long time. I know how to provide a suitable sample. And in the video above, I was doing exactly what the device required to meet the sampling parameters. Yet for some reason, the device simply did not detect my airflow.

This was an approved screening device that had been checked for calibration using a wet bath standard and had received recent annual servicing. On paper, there was no reason why the device should not have accepted my breath sample. Nonetheless, despite my best and most legitimate attempts to blow, the machine did not work.

I deal with many Immediate Roadside Prohibition, Administrative Driving Prohibition, and criminal refusal to blow charges every year. Every once in a while I have a client who tells me they were making an earnest and honest attempt to provide a sample, but the police disclosure reveals information that would indicate no air was going into the device. Having experienced this issue myself, I can relate to my clients’ bafflement at their circumstances and I understand my clients’ innocence.

One of the most important factors in defending impaired driving, DUI, and/or Immediate Roadside Prohibition (IRP) cases is understanding the equipment used by the police. Until you have had hands-on experience with the devices and instruments, you cannot fully understand the intricacies of how these machines work. I am fortunate to have a small collection of breath testing equipment, including a BAC Datamaster C approved instrument, an Alco Meter SL-2 approved screening device, a Draeger AlcoTest 7410 approved screening device, and a Breathalyzer 900, which was formerly an approved instrument. In our office, we have an Alco-Sensor FST, Alco-Sensor IV, Intoxylizer 400, and an Intoxlyzer 5000. I have personally operated and used each of these pieces of equipment, so I know and understand how they work and why they fail.

But sometimes, (like in the above video) even with plenty of experience using a device, it simply does not work. And the reason why cannot be explained.

Tomorrow is the National Day of Impaired Driving Enforcement.

According to an article in the Morning Star, a Vernon newspaper, police will be out in full force on Saturday, March 22, 2014 conducting roadblocks and checking for impaired drivers. With nice weather finally here for springtime in Vancouver, I do not doubt that many people will encounter a roadblock on their travels this weekend.

There are a variety of consequences that you can receive when police conduct impaired driving investigations. They are often difficult to understand and can result in further punishment that you are not told about at the roadside. I deal with all manner of impaired driving cases, including:

• 24-Hour prohibitions for drugs;
• 24-Hour prohibitions for alcohol;
• 3-day, 7-day, and 30-day Immediate Roadside Prohibitions;
• 90-day Immediate Roadside Prohibitions for Fail;
• 90-day Immediate Roadside Prohibitions for Refusal to Blow;
• 90-day Administrative Driving Prohibitions;
• Impaired driving charges;
• Driving over 80 mg charges;
• Refusal to blow charges;
• Impaired driving causing bodily harm; and
• Impaired driving causing death.

If you are issued any of the above charges or sanctions, there are limitation periods and it is imperative that you act fast. Contact me immediately and I will be able to explain your rights and the procedure to you, free of charge. Our telephone number is 24-hours: 604-685-8889.

In a very interesting study published in the Journal of Pediatrics, researches found a correlation between being a passenger with a drunk driver and drunk driving behaviour.

Approximately 2500 teens were surveyed each year, over a three year period. Each year, tenth grade students were asked how many times they had ridden with a driver who had been drinking or taking drugs in the past year. They were then asked how long they had a driver’s license, questions pertaining to the use of drugs and alcohol, and about whether their parents were aware of their choices. In the final year of the study, students were asked how many times in the past 30 days they had driven after using drugs or alcohol.

The study found that students who had ridden with someone who had been drinking or using drugs were eleven times more likely to decide to drink and drive themselves. In some respects, this makes sense. Drinking and driving education for teenagers often focusses on the devastating social consequences of that behaviour: the likelihood of an accident, death, or injury. Individuals who do not experience these consequences are probably more likely to consider them more remote, and to engage in risk-taking behaviour themselves.

Interestingly, students who got their driver’s licenses earlier were also nearly two times more likely to drive drunk than those who got their licenses later. At least 30% of the students surveyed had either ridden with a drunk driver or had driven drunk themselves.

Studies like this are important. They help to understand why drunk driving incidents occur, so that prevention efforts can be aimed at methods that are more likely to produce success. In British Columbia, the Immediate Roadside Prohibition regime is said to have saved lives by preventing drinking and driving. However, studies have also shown that younger drivers are more likely to drink and drive, meaning that an aging population in British Columbia would cut down deaths. And despite the fact that IRPs are said to have saved lives, impaired driving is still on the rise in British Columbia, according to Stats Canada. But that’s another blog post for another day.