Distracted Driving and Impaired Driving: Is there a lesser of two so-called evils?

An ongoing case recently aired at a small claims court in BC could have wider implications for insurance cases in the province. A driver named Angela Seeley who crashed her car is suing the Insurance Corporation of British Columbia (ICBC) for refusing to honour her insurance claim. ICBC believes Ms. Seeley was impaired at the time of the collision and it alleges she lied by saying she had nothing to drink before it happened. Ms. Seeley agrees her driving was affected leading up to the crash, however, not by drinking but by texting.

This case raises some interesting points about why someone would admit to using their phone while driving but deny having consumed alcohol before driving. What are the differences between driving while impaired and driving while distracted? What are their implications for insurance claims and, crucially, how severely they are punished?

Driving while impaired vs distracted driving
From a defendant’s point of view, when compared to driving while impaired, it’s safe to say driving while distracted is the lesser of the two evils.

It does not appear Ms. Seeley was given a breathalyzer test after the crash. This may be why the defendants in this small claims case, ICBC, sought permission to interview BC Ambulance attendants who made observations of her after the collision. This was later refused by the judge because it was not in keeping with the “speedy, inexpensive and simple” resolutions small claims courts are intended to give.

ICBC will have to prove Ms. Seeley was impaired in order to win the case, which means it will have to show her ability to operate a vehicle was impaired by alcohol or drugs in order to prove that she was in breach. Proving she was impaired by drugs is going to be tough. There is currently no legislation in place that includes scope for a police officer to use a device to screen drivers for drug impairment. There are some tests, including the SFST and DRE tests that can be used to detect drug impairment. However, it appears that no such tests were done in this case.

Driving while texting, as Ms. Seeley insists she was doing before the accident, comes under the category of what is called distracted driving. This encompasses anything from eating to personal grooming to dealing with an unsecured pet. In BC, amendments to the Motor Vehicle Act were added in 2010 that prohibit the use of electronic devices while driving. These include cell phones, handheld electronic devices with telephone, email or text message capabilities or computing devices such as tablets. I have written extensively on cell phone driving laws.

Since there is no mention of anyone witnessing Ms. Seeley using her phone immediately before the crash, a key piece of evidence will be her cell phone records. The judge has ordered Ms. Seeley to get her provider to produce the records to prove she was texting at the time in question. I will be watching closely to see what those records reveal.

Consequences of driving while impaired vs distracted driving
If the police decide to pursue charges against a person for driving while impaired, the punishments are more severe than those for distracted driving. The level of punishment depends on factors such as the driver’s record but they range from an Immediate Roadside Prohibition to a criminal charge for impaired driving.

The consequences of either are severe. The Immediate Roadside Prohibition is a 90-day driving ban, plus fines and vehicle impoundment. A criminal conviction carries with it a mandatory minimum $1000 fine and one-year driving suspension for a first offence. Subsequent offences have mandatory jail terms.

The consequences for distracted driving are currently much less severe than for impaired driving offences. Driver’s who receive a single distracted driving ticket can expect to pay a $368 fine and have four driver penalty points added to their driver’s record.

Implications for insurance claims
The Seeley vs. ICBC case highlights an issue that could have ramifications for other insurance claim disputes that make it to court. Crashing due to impaired driving is most likely a breach of insurance policy meaning a driver could be responsible for 100% of the costs, such as damage to someone else’s property or injuries caused to another person.

Crashing due to distracted driving, on the other hand, does not automatically mean a breach of insurance policy. In fact, unless the BC Government amends the law, a distracted driving accident entitles a person to insurance coverage. So there’s a lot at stake here If the court finds Ms. Seeley was texting before the accident, ICBC may have to pay for her insurance claim. If the court finds she was drinking, she will most likely have to pay for everything out of her own pocket.

That’s not to say there are no implications for distracted driving. Under new government rules, your premiums could increase by $740 if you get multiple distracted driving tickets in a three-year period. The total amount of premiums and fines could cost up to $2,000. But that’s simply money that a person pays upon conviction. As she was not ticketed for distracted driving, and given that the limitation period for ticketing will expire before the court makes a determination, Ms. Seeley will not be exposed to these consequences.

According to reports, Ms. Seeley is taking ICBC to court in June where she will seek $25,000, the maximum allowable in a suit at the small claims level, for refusing to pay out for her insurance claim. The insurer has filed a counterclaim of more than $6,000 to recover the cost of a BC Hydro pole sheared in half as a result of the accident.

As I said earlier, ICBC is going to have to prove Ms. Seeley was driving while impaired at the time of the crash, which is why it has hired a blood analyst in an attempt to prove she was intoxicated. The judge has ordered her to divulge to the specialist her weight, the food she consumed and what time she ate on the day of the accident. Proving blood alcohol levels is a scientific process, but it is not without its flaws in the underlying assumptions an expert will have to make. The order that she disclose this information is particularly interesting because it is often information lacking in a criminal trial, which can lead to reasonable doubt about the readings. However, the ICBC process is a civil process and thus it is assessed on a standard of balance of probabilities.

The “dumpster fire” that is ICBC’s finances currently is well documented so it is understandable why it is fighting this case so vehemently. From the insurer’s point of view, losing this case could potentially open the floodgates to clients filing suits every time they reject an insurance claim because of impaired driving where the driver has not been charged or given some type of alcohol or drug testing at the time of the collision. Despite this, the Government messaging and police policy is that unless there are injuries or deaths, a suggestion of impairment, or vehicles are not moveable the police do not tend to attend crash sites. This will make breaches harder in cases of minor collisions, and the “I wasn’t drunk! I was texting!” defence more common as police involvement in accident investigations goes down.

As the article points out, the government is currently seeking ways to alleviate ICBC’s $1.3 billion shortfall, such as placing caps on claims for pain and suffering on minor injury claims. The idea of making texting a breachable offence is not being looked at as a possible way to stop the bleeding, for now at least. But I would not put it past this government to do so. Indeed, the idea has been discussed by government already.

Fighting a charge of driving while impaired or distracted driving can be a complex matter, and the consequences can be more significant than just the conviction for either offence. Insurance-related consequences are easier to avoid with good legal representation on the underlying offence. If you have been in an accident after drinking or while using your cell phone, it is important that you contact a lawyer to fight those charges as soon as possible.

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