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.