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Random Breath Testing

Every once in a while, some group of concerned individuals proposes the idea of random breath testing. There has been a lot of talk about the issue recently, as some members of the Conservative government are trying to propose such an idea. Additionally, the Quebec Transport Minister has recently suggested seeking authorization from the Supreme Court for random breath testing.

As far as I’m concerned, random breath testing is a significant constitutional violation. The current Immediate Roadside Prohibition system in British Columbia comes as close to random breath testing as I think will ever pass constitutional muster. Currently, police have the power to make a demand for a breath sample pursuant to the Criminal Code, but so long as the breath sample is provided, the driver has no recourse to challenge the validity of the demand. Refusing carries the same penalty as blowing a “Fail”, and unlike just blowing a “Fail” on an ASD, a refusal is also a criminal offence. Which means, effectively, that police are empowered to obtain breath samples from an individual at random, and there is no recourse so long as the driver provides samples.

It stinks.

Worse than that is the suggestion that random breath testing at large is a reasonable proposition. It completely disregards the Charter. And while there is a significant amount of carnage caused by impaired driving incidents, that does not mean that suspected impaired drivers do not deserve Charter protection.

The only way that I can ever settle the idea of random breath testing against constitutional rights is if the results of the breath tests are used only for the immediate removal of drivers from the road for 24 hours. With no notation on the driving record, no vehicle impoundment, and no fines or penalties. Then the public safety objective achieved by the liberty and privacy intrusion does not cause any imbalance.

The difficulty with this method appears to be that it puts an end to the criminal prosecution of drivers, where random breath tests are used. There would have to be some mechanism to distinguish the impaired drivers warranting criminal investigation and prosecution from those who should only be removed from the road on the basis of a suspicion. In British Columbia, this has resulted in very few impaired driving cases being charged and prosecuted. The time and effort needed to investigate an impaired driving case criminally is much greater than the ease of the roadside system. And although IRPs were never supposed to be issued in cases where there were accidents or injuries, that has not been the realistic outcome of IRP investigations in BC, thus far.

It seems that there is really no truly viable alternative to the method established in the Criminal Code to prosecute and investigate impaired drivers. But random breath testing with punitive or criminal consequences is absolutely no way to fix any perceived defects in the system.

CBC: Drivers Face Double-Standard With Drug Related Suspensions

B.C.’s Superintendent of Motor Vehicles is looking to change the province’s laws so drivers allegedly impaired by drugs can appeal 24-hour roadside suspensions.

Both alcohol and drug-related 24-hour suspensions are issued under different parts of Section 215 of the Motor Vehicle Act.

While drivers allegedly impaired by alcohol have the right to a review, drivers suspended for drug use either have to convince the ticketing officer to reconsider or file a petition in B.C. Supreme Court for a judicial review.

It’s an issue flagged by the director of Simon Fraser University’s School of Criminology, Neil Boyd, in a recent report on the enforcement of marijuana-related offences in B.C.

“You shouldn’t be driving under the influence of either drug,” Boyd said.

“But I don’t know why we would treat people who drive under the influence of alcohol somewhat more leniently in this context than people who drive under the influence of cannabis.”

Suspensions have huge consequences Vancouver lawyer Kyla Lee says the impact of a roadside suspension can last a lot longer than 24 hours. (CBC)

Vancouver lawyer Kyla Lee, who specializes in drinking-driving related cases, says the lack of a formal review process places an undue burden on people accused of driving while impaired by drugs.

“It does seem like people are being treated differently, and certainly it raises concerns for me about access to justice and about people’s ability actually to challenge these prohibitions,” Lee said.

“Not every prohibition is validly or justly issued, and there’s a danger here that innocent people are being issued these prohibitions that have more consequences than just removal from the road for 24 hours.”

In 2012, the Superintendent of Motor Vehicles issued 7,326 24-hour suspensions for alcohol and 3,800 suspensions for drugs. Of the alcohol-related cases, 172 drivers appealed and the Superintendent revoked 33 suspensions.

Lee says the impact of a roadside suspension can last a lot longer than 24-hours. The penalty can be used as the basis for a longer driving prohibition, and the fact of the suspension becomes part of a driver’s record.

“It will say ’24-hour prohibition’ and then there will be a dash and then it will say the reason for it: alcohol or drugs,” she said.

“I think the public is largely uninformed… about the significance of the consequences that can result from one of these on your driving record.”

Reliant on police officer’s opinion A number of people have gone to B.C. Supreme Court to quash their prohibitions, including a Victoria teen who filed a petition last month against a police officer who handed him a suspension at a roadblock. The teen claims his two passengers admitted to smoking marijuana while he abstained.

Neil Boyd, director of Simon Fraser University’s School of Criminology, says B.C. laws treat alleged drunk drivers differently from drivers alleged to be impaired by drugs. Both alcohol and drug-related 24-hour suspensions are issued under different parts of Section 215 of the Motor Vehicle Act. (CBC)

A driver in a Vancouver case — Trevor Maxwell Jeanes-McBean — successfully overturned his suspension in similar circumstances last February when the Superintendent declined to appear at the court hearing.

Justice Mark McEwan commented on the lack of a review process in a strongly-worded judgment this summer.

“I reject the (police officer’s) submission that there is no recourse to the exercise of the summary power granted under s.215(3) of the Motor Vehicle Act, whether or not the long term consequences for a persons’ permanent driving record is unfair,” McEwan wrote. “That is simply not so.”

Reviews of alcohol-related suspension largely focus on questions surrounding the application of screening devices. But drug-related suspensions rely on a police officer’s opinion and expertise in assessing signs of impairment.

Boyd says a number of the people he interviewed felt they were wrongly suspended after trying to do the right thing.

“They had been designated drivers for the evening. Sure, the friends in the back smelled of cannabis and the car smelled of cannabis, but they were going to a party and they agreed that they would not consume. Just as people often do with alcohol,” he said.

“To the extent that that’s an honest statement, it should be respected. Or it should be at least appealable.”

The time frame for introducing a more formal review process has not yet been determined.

Read the entire article here: http://www.cbc.ca/news/canada/british-columbia/drivers-face-double-standard-with-drug-related-suspensions-1.1929238


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