Driving while prohibited is a serious offence. If convicted of the criminal charge of driving while prohibited, a person can receive a criminal record. Under the Motor Vehicle Act, a person can face a possible jail sentence. In either circumstance, the penalty for driving while prohibited includes lengthy driving prohibitions and potentially high fines.
This is why it is important to understand the evidence in a driving while prohibited case, and what you can do to beat a driving while prohibited charge in British Columbia.
What Evidence is Necessary to Prove Driving While Prohibited?
In order for the prosecution to successfully prove that you were driving while prohibited, they must prove three facts in court:
- That you drove;
- That you were prohibited when you drove;
- That you knew you were prohibited.
Typically, in these cases, the first two elements are easy for the prosecution to prove. In order to demonstrate that you drove, the prosecution will call the officer who arrested you to testify and explain how they determined you were driving and determined your identity.
In order to prove that you were prohibited from driving, the prosecution then introduces into court records showing that a driving prohibition as issued to you. This can include a copy of a court order prohibiting you from driving, a copy of the letter sent to you explaining that you are prohibited, or a copy of paperwork given to you by police to show that you were prohibited from driving.
While proving that you knew about something seems like it could be difficult, the government has thought ahead. Written in to the Motor Vehicle Act is a provision that allows the prosecution a shortcut in these cases. Effectively, by filing the documentation that shows that you were prohibited, the prosecution is also allowed to rely on that to show that you knew about the prohibition. However, certain pre-requisites exist in order for this shortcut to apply.
Proving You Drove
One of the easiest ways to beat a driving while prohibited charge in British Columbia is to attack the evidence that you drove.
This can occur in several ways. If a person is charged under the Motor Vehicle Act, the law requires there to be actual driving. Acts falling short of driving, such as sitting in the driver’s seat of a running vehicle or sleeping in a vehicle, are not sufficient to constitute driving for the purposes of a Motor Vehicle Act charge of driving while prohibited.
Be careful, however. If you are charged criminally with driving while prohibited, all that is required is that you were in care or control of a vehicle. This can include sleeping in the vehicle or merely occupying it with the keys in your possession. That is why it is important to understand what charge you are actually facing. If you’re confused about this, an experienced driving while prohibited lawyer can help you figure it out.
Another issue that can help you beat a driving while prohibited charge in British Columbia is the difficulty proving that it was actually you who was driving the vehicle.
In many cases of driving while prohibited, the person behind the wheel does not have a driver’s license in their possession. Unless other identification is produced, the driver is typically asked a series of questions by police to establish their identity. Whether the answers to the questions were sufficient to establish identity is always a complex legal issue.
Furthermore, often people caught driving while prohibited will give a false name or date of birth to avoid detection. This can make proving identity more difficult, where there are discrepancies in the answers to the questions. However, if you are asked to give your identification information do not say a false name. If you do so, you may be charged with obstruction of justice and that is a serious criminal offence.
Proving You Were Prohibited
As I noted earlier, proving that you were actually prohibited from driving is relatively easy. The prosecution only has to introduce evidence to show that you were given a driving prohibition to prove that you were actually prohibited.
This is where good legal skill comes in to play.
The various notices of driving prohibition that exist in our legal system all have technical requirements for how they have to be completed and the information they must contain. If a Notice of Prohibition does not contain certain required information, the notice may be determined to be a “nullity.” This effectively means that it does not exist.
By demonstrating that a notice of prohibition was a legal nullity, you can defeat its effect as proof that you were prohibited from driving.
Again, this is an area that requires special knowledge and training. There is a fine distinction between proving that your notice was a nullity, versus demonstrating that the notice was not properly issued to you.
As an example, take a case where a person is issued a prohibition in error by RoadSafetyBC for having too many tickets. In this example, the driver had disputed the tickets but the dispute was not registered and the tickets ended up on the driving record. Once that occurred, the prohibition was issued and served on the driver.
While the underlying prohibition in that example was not validly issued, due to the fact that the tickets were disputed, it is not a legal nullity. It was simply a mistake. To challenge the prohibition on the basis that it was not a valid prohibition is known as a “collateral attack.” There is a rule that prohibits a collateral attack in driving while prohibited cases.
Because of this, a nuanced legal understanding of the difference between something that is merely invalid versus something that is a nullity is essential to beating a driving while prohibited charge in British Columbia.
Proving You Knew You Were Prohibited
One of the easiest ways to prove that you knew you were prohibited, is for the prosecution to rely on a statement that you made roadside. That is why it is always important to remember that you are not required to give information to police beyond your identity information. If you tell a police officer that you were prohibited or you knew you were not supposed to be driving, that is a proverbial nail in your coffin on the question of knowledge.
For that reason, one way to beat a driving while prohibited charge is to not make any statements to the police about the prohibition.
As noted earlier, once the prosecution is able to file proof that you were prohibited this is also admissible as proof that you knew you were prohibited. However, certain preconditions apply to the prosecution being able to rely on this evidentiary shortcut.
If the prosecution is filing the records to prove that you knew you were prohibited, they must comply with certain very strict requirements in the Motor Vehicle Act.
First, the prosecution must file, along with the documents, a Certificate from the President of ICBC or the Superintendent of Motor Vehicles, stating that you were prohibited for the whole day, and confirming that their records show you were prohibited at that time.
In addition to the Certificate stating that you were prohibited, pursuant to Section 95(4) of the Motor Vehicle Act the Certificate must also attach and confirm that ICBC’s records contain a document showing that you were made aware of the prohibition.
This can be completed in one of several ways. The records can contain a document showing that you acknowledged the prohibition and that the signature on the acknowledgement of driving prohibition matches the signature in ICBC’s records. In some circumstances, therefore, showing differences in signatures or calling the evidence of a handwriting expert, may help you to beat a driving while prohibited charge in BC.
Alternatively, the records can include proof that you were given a copy of the prohibition from driving by registered mail. In my experience, driving prohibition notices are no longer sent by registered mail, and so this requirement almost never applies. However, if the prosecution is relying on a notice of prohibition that was delivered by mail and does not have your signature on it, records from Canada Post are necessary for them to avail themselves of the shortcut.
Finally, the prosecution can take advantage of this shortcut if they have a Certificate of Service showing that the prohibition was personally served on you. This means a signed document from a police officer who handed you a driving prohibition. And this document is often how many people are able to beat a driving while prohibited charge in BC.
The reason for this is that the signed document is not necessarily proof that the officer explained the prohibition correctly. I have dealt with hundreds of cases where police officers provide inaccurate or incorrect information to a driver about whether they can drive upon serving them with a notice of driving prohibition.
If the prosecution is relying on the shortcut that arises from personal service of a notice, you can apply for the officer who served the notice to be brought to court and testify as a witness. In those circumstances, your lawyer will have the opportunity to cross-examine the officer about what was said to you about the driving prohibition and raise a reasonable doubt about whether you, in fact, knew you were prohibited from driving.
Of course, as with any issue involving cross-examination, legal skill, knowledge, and training is the most effective tool. So to beat a driving while prohibited charge in British Columbia, you are often going to be in the best position possible if you hire an experienced and knowledgeable lawyer to assist you.
