Drug Impaired Driving Part 2: Disputing a 24 Hour Prohibition for Drugs 

I deal with a fair number of 24-Hour Prohibitions for Drugs in the course of my work. These types of prohibition are dangerous, in my opinion, because they can happen to anyone at any time or place on a roadway. They also involve greater consequences than what is told to the driver at the time the prohibition is issued. And disputing them is a complex and often expensive process, with results that do not really address the concerns a dispute process should. I’ve previously written about drug-impaired driving laws in Canada, and promised that I would follow up with more information about the 24-Hour for Drugs dispute process.

24-Hour Prohibition for Drugs
Under the Motor Vehicle Act, the police have the authority to issue a 24-Hour Prohibition to anyone whom they believe is driving while their ability to do so is affected by alcohol or a drug. The authority to do so is found in Section 215 of the Motor Vehicle Act. If the police officer arrives at this belief, then he or she can issue the prohibition and take the driver’s license. The vehicle is also typically impounded for a twenty-four hour period, at the cost of the driver.

In many respects this legislation serves a good public purpose. It allows for a very small sanction on the basis of an officer’s reasonable belief, and it addresses a valid public safety concern that drivers who are impaired pose. But there are a number of significant problems with this legislation that make it something far more nefarious.

Negative Aspects of 24 Hour Prohibitions
About a year ago, there were a number of news stories about a man named Derek Kowalenko who received a 24-Hour Prohibition for drugs, despite not having used any drugs whatsoever. Because there was no readily accessible dispute process, Mr. Kowalenko lost his job. There was no real opportunity for him to challenge the prohibition because, unlike prohibitions for alcohol, there are no review hearings conducted by the Superintendent of Motor Vehicles. There appears to be no rational basis for this, given that the tribunal is routinely tasked with making the types of determinations that would be relevant to these disputes.

Instead, the only way to dispute a 24-Hour Prohibition for Drugs is to seek judicial review in BC Supreme Court. I’ll explain this more further down.

Worse still is the fact that the prohibition is recorded on your driving record. And your driving record is forever. Meaning that anytime your driving record is before a court or a tribunal, they will see this incident. Ditto for whenever you are stopped by police or are crossing the border. If this doesn’t concern you, you should think again. American border guards don’t take kindly to people who have a history of drug use. There is a good chance that a 24-Hour Prohibition for Drugs will keep you from entering the United States.

Even if you aren’t traveling out of the country, the incident on your driving record will still haunt you. If you have an “N” a further driving prohibition of at least two months will be issued to you, under the so-called “Driver Improvement Program.” So even though the law makes it seem as though the punishment is 24 hours, it’s a lot longer. Class 5 or better drivers are also not exempt from scrutiny. I’ve had several clients served lengthy driving prohibitions after receiving a 24-Hour for Drugs when they’ve had a few speeding tickets or other minor offences in the past.

These types of prohibitions are also viewed as a DUI incident, which means that they can trigger referrals to the Responsible Driver Program and the Ignition Interlock Program. The latter doesn’t even make sense, given that an Interlock device cannot detect drugs, and no one has perfected a marijuana breathalyzer yet. But RoadSafetyBC doesn’t seem to care. They view all “DUI” events as equally significant.

The Subjective Nature of 24 Hour Prohibitions for Drugs
Unlike a 24-Hour Prohibition for alcohol, there is no objective measurement of whether someone may be affected by a drug. In the case of an alcohol prohibition, the driver has the right to request a blood alcohol test on a roadside breathalyzer. If they blow less than 50 mg% then the prohibition is revoked. If they request the test, the officer is required to provide it. Not so for drugs. A person can dispute it then and there with the officer by satisfying him or her that their ability is not affected by a drug. No mechanism to prove this is set out, meaning officers are not required to take a blood test or administer Standardized Field Sobriety Tests or the Drug Recognition Evaluation.

Suffice it to say, attempts to dispute the prohibition roadside often fall on deaf ears.

The subjectivity of a 24-Hour for Drugs is a significant problem with the law, in the absence of any reasonable opportunity to challenge it. Any officer can come to any conclusion they want for any reason they want. I’ve had many clients who have been issued these prohibitions for no reason other than an officer found the passenger in possession of a drug, or there was a smell of burned marijuana coming from the vehicle. The law is supposed to function in a way that requires the officer to have some objective basis for his belief, but with zero oversight the objective component is rendered meaningless.

Dispute Process
So what is the dispute process for a 24-Hour Prohibition for drugs? The only way to dispute one of these prohibitions is by seeking judicial review in BC Supreme Court. This is a costly and time-consuming process.

In order to commence a judicial review, a driver must file a Petition to the Court, which is then served on the officer personally and, in some cases, the Ministry of the Attorney General. Right away, this costs money as court filing fees for a Petition are $200. The officer must then file a response, and the evidence is introduced by way of Affidavits describing what happened. There is generally no cross-examination of either party on their version of events, so the evidence is effectively untested.

The lack of cross-examination is a problem when you consider that the only issue before the Court is whether the officer had reasonable grounds to believe a driver’s ability to drive was affected by a drug. The officer doesn’t have to prove what drug. All the evidence has to do is establish a basis for the officer’s belief. This can mean that a combination of poor driving and some symptom of impairment (such as slurred speech or balance problems) can be enough.

Many people come to me with drug test results taken after the 24-Hour Prohibition was issued. The shocking, but sadly true thing is that these do not matter. The issue isn’t whether the driver was, in fact, affected by a drug (unlike prohibitions for alcohol, where this can be challenged by requesting a breathalyzer test). The issue is only whether there was a reasonable basis for the officer to believe this. You can be completely stone cold sober, but if you drive poorly and have red eyes, the officer could be justified in his decision.

That decision is made by a BC Supreme Court judge, after hearing arguments in Chambers. If the hearing is going to take longer than two hours, it can take several months to schedule a date for a chambers hearing. This can add significant delay to the process, which is a problem given that the prohibition remains on the driving record while it is before the Court.

Now, ordinarily this wouldn’t be a problem. But with the consequences that are outlined above, it is a big problem. Entire lives can be ruined because of the inability of drivers to quickly and reasonably dispute their prohibitions.

As well, because the process is so involved and based on technical legal arguments, it is best practice to be represented by a lawyer. I would not recommend to anyone that they go through the dispute process unrepresented, as the requirements for the materials and evidence are so stringent and difficult.

If you are interested in learning more about disputing your 24-Hour Prohibition for drugs, please call or email me and I will be happy to discuss the matter with you.

6 thoughts on “Drug Impaired Driving Part 2: Disputing a 24 Hour Prohibition for Drugs ”

  1. It sounds like you do have a criminal charge – they only give you a court date if there is a charge. It could be for a DUI or it could be for the drugs. Give me a call at 604-685-8889 and we can talk about it some more.

  2. Great article, 2 years ago i was stopped for a wrong turn and the cop amelled pot, i was given a 24 hour prohibition ban even though I wasn’t high, im applying to become a police officer in 2 years after i complete my college degree, will this be an issue? Will the recruiters believe my case?

  3. Disgusting how the cops are given so much power. He could just think “I don’t like the way he looked at me, hes getting a drug charge!” and tell the judge the driver was slurring his speech. This system isn’t compatible with a democracy

  4. My first & only suspension (or any criminal action) went like this:
    Blew .052, denied a field sobriety test, written suspension, not verbally informed of right to dispute ticket, was ordered to drive vehicle further to park it elsewhere. As I lived 200km away I would not have been able to revisit Vancouver to dispute ticket (even if I knew how). Now I am considered unemployable for driving, denied CarSharing & may be denied US entry. A warning for my 1st alcohol related offense would have sufficed, followed by schooling/financial penalty; instead I’m now considered a criminal for having a single extra beer on a visit to Vancouver.

  5. Heres my nightmare with the 24hr drug prohibition, had a clean driving record back in 2009 went to pick friend up from bar at 2am got pulled over cop smells weed i had in vehicle from day before asks wheres the weed i popped my gas lid and said right there he takes it arrests me for possession controlled substance tosses everything in vehicle takes me to station strip searches me tells me he thinks im a drug dealer that i have no drugs because i sold them all and is where the $180 in cash in my pocket came from and interrogates from midnight untill 4am refusing to consider maybe im not a crack dealer but he was new in our small town and he was sent here from somewherr bigger and had something to prove i guess so at 4am i said charge me or let me go to which he whipped out his ticket book in the interogation room and wrote me a 24hr prohibition for drugs and laughed at me as i read the ticket and realised i cant dispute it. 2 nights later got stopped by same cop for no seatbelt and issued another 24hr for drugs on the basis of he put a flashlight in my face and he decrees that im baked because he said so. He did not arrest me or take me to the station this time but got a lot of satisfaction out of telling me he cant prove it but just knows im a crack dealer while he wrote the 24hr ticket.

    Now this is in a small town i live 30km outside town in a very rural area there are no buses or ubers or taxi service wherr i live so when icbc decided i needed a 6month prohibition (3month after appealing twice) for these 24hr tickets i really felt i had no choice it was drive or lose everything job, house icbc doesnt care. Then with 5days of prohibition left someone reported gun shots in the area and several cops in area and by chance one stopped me to ask if i heard any gun shots and BAM driving while prohibited lose license for 1yr and pay a fine. Because i need to work to pay my mortgage and had no alternative i chose to drive to work still and BAM nother driving while prohibited lose license for nother year and spend 14 days in jail, repeat cycle again over and over till now where manage to not get caught for awhile and if all goes well i can apply for a learners license again by april of 2022. It is criminal to let the police issue 24hr drug prohibitions with no review process because cops have vendettas just like everyone else and ya i could have played my situation out differently but i still would have gotten screwed just because a cop decided to screw me

  6. My brother took my vehicle without me knowing and got caught driving with no license. At the same time he was arrested for breach of probation but no charges for driving. And here’s the real interesting part. I received a 24hr probation from driving for suspected impairment on drugs and I wasn’t even there!!! I suspect this is a mix up from the police because they would have found the vehicle in my name. and with the same last name the officer wrote up the ticket wrong mixing me and my brother up. The vehicle was of course impounded which my brother had to pay in the end to get it out but I had no idea the 24 hr was even on my driving record until a couple weeks ago because I’m applying for jobs that require me to drive company vehicles. I was curious to see what was on my abstract if anything. I had a couple tickets one for speeding and another for cracked windshield and I was curious to know if they still came up on the abstract.. I was completely blown away to see the 24 hr suspension!!! I did some research before asking my brother about it and the suspension ticket was written out the exact same day he was charged with breach of probation. So 2 things that don’t make sense. 1. How can I be given the suspension if I wasn’t even there? and 2. I find it interesting that he wasn’t charged with driving while prohibited. Only 2 conclusions come to mind. Either he said he was me (which I don’t think so because he was arrested) or a big mistake made by the police. I ABSOLUTELY CANNOT have this on my abstract as it will most definitely affect my job potential opportunities and I travel quite a bit. Any suggestions?

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