Penalties for Distracted Driving

Today the BC Government made an announcement in the middle of its public consultation process about the penalties for distracted driving. Their thinking is that drivers are not getting the message about distracted driving, and so the penalty must increase to stop the behaviour. One of the suggestions the Government is looking at implementing? License suspensions and vehicle impoundment. That’s right, the Government is currently seriously considering taking your car and your license away on the spot if you’re ticketed for using a cell phone while driving.
Justice Minister Suzanne Anton had this to say: 

I would expect we will also seriously consider vehicle impoundments and licence suspensions for repeat offenders.

I’ll tell you this – if my experience with this government and driving laws is worth anything, their minds are already made up. License suspensions and vehicle impounds, at least in some circumstances, are a done deal. It’s just a matter of writing the law and blowing it through the legislature.

But distracted driving is dangerous. Why is this bad? 
As we have seen from BC’s Immediate Roadside Prohibition scheme, roadside justice is not necessarily an effective method of dealing with problem driving. While deaths from impaired driving-related incidents may have decreased after the introduction of the new drunk driving law (dubiously related to the law itself), the actual rates of impaired driving have gone up by nearly 50 percent. That’s not surprising when you realize that British Columbia has effectively decriminalized drunk driving. So where’s the deterrent from doing it again?

And the cost to those stuck with even a 3-day Immediate Roadside Prohibition can be astounding.

But we’re not dealing with just a cost on the driver. As soon as you add an element of license suspension and vehicle impound, you start to affect those who are not guilty. People in British Columbia do not just rely on their cars for their own personal pleasure. Families need vehicles to take children to and from school and activities. An impounded vehicle could be a family vehicle, meaning that not just the distracted driver is on the hook but also the whole family. Work vehicles or company vehicles can be seized, at a cost to businesses.

Never mind those who need their licenses to work and who are now at risk of losing their job. Is it fair that a person should be terminated from their employment because of a mistake in their driving on their personal time? Certainly not.

The reality is that as soon as you take away driving privileges and vehicles without giving those interested an opportunity to be heard on the issue, other people are going to suffer. And that’s not an effective way to enforce the law. We don’t jail the families of those who steal, and we don’t give criminal records to the employers of those convicted of assault. It’s not consistent with living in a free and democratic society.

Having a dispute process will not help anyone
It’s not enough for the Government to say that there will be a system in place to allow a dispute of the driving prohibition or vehicle impound. And again, looking at the Immediate Roadside Prohibition scheme is a good mechanism to see why. If a driver receives a 3-day IRP, the lowest sanction, they can dispute it within seven days. The RoadSafetyBC tribunal has twenty one days to render a decision. Meaning that by the time the driving prohibition is deemed valid or invalid, it’s already been served by the driver.

The Vehicle Impound Review Process set up by the RoadSafetyBC tribunal is not much better. You can apply for review within fifteen days of the impound. Upon applying for review, a review hearing will be scheduled. Then a decision will be rendered within seven days of the hearing. A short-term vehicle impound (like three or seven days) will be over before the review hearing is even conducted, much less a decision rendered.

So by the time you get your decision, you’re likely already back on the road. All you’re going to get — if anything — is the money you paid refunded to you. And depending on the reasons you disputed the impound, you may not even be eligible for that. The review process is purely declaratory. It serves no useful purpose to a suspended driver or a family without a vehicle.

Hidden costs the government doesn’t want you to know
What the Government doesn’t want you to know is the hidden costs associated with this type of roadside justice. The truth is that the more prohibitions they issue, the more they can line Government coffers with money from the pockets of drivers. The cost isn’t just going to be the ticket and the cost of a vehicle impound. When your license is suspended, you’re required to pay a $250 license reinstatement fee, and a $31 short term license administration fee. An extra $281 in fines will be levied against you that you aren’t told about at the roadside and isn’t written into any distracted driving law.

And then there are the financial consequences to a traffic ticket in British Columbia. You can expect to pay for all of those hidden costs and fees. And to top it all off — the Government has already added penalty points to distracted driving tickets. Once a roadside suspension element is added, drivers can attract either the Driver Risk Premium or the Driver Penalty Point Premium. Hundreds of dollars every year out of your pocket, year after year.

But nobody from the Government will tell you that if they create a 3-point ticket with the current $167 fine, plus the vehicle impound and driving prohibition the financial costs of a ticket can easily rise to over a thousand dollars. And I think it’s pretty safe to say that a fine increase for distracted driving is in the works. Because if the other provinces can do it, it’s only a matter of time before BC follows suit.

Roadside Justice: Guilty Until You Prove You’re Innocent
Once you create a law that punishes you before you have your day in court, you create a standard where people no longer benefit from the presumption of innocence but are subjected to a presumption of guilt. What’s more offensive is that with other forms of Roadside Justice in BC, there is usually a form of objective measurement to verify that the officer is not mistaken.

Take, again, BC’s DUI law. The prohibition is served after a roadside breathalyzer gives the police a particular reading. And while the danger of false readings is high, there is still at least a second level of verification in an attempt to ensure the officer isn’t mistaken. Plus the driver has the right to request a second test on the spot to challenge the officer’s decision. With a ticket for excessive speeding, there is usually a laser or RADAR reading which must be confirmed by a visual estimate. And while in rare circumstances the officer relies only on a visual estimate, those are still based on training. Plus – if you’re going 40 kph over the speed limit, it’s going to be blatantly obvious to anyone looking at your vehicle.

But with a cell phone ticket you have nothing beyond the officer’s subjective opinion. The officer looks at an object and concludes it’s a cell phone when it’s not. And while this is fraught with problems in and of itself, I had a client once who had a flask that looked like an iPhone. Pretty easy to make that mistake.

The “electronic device” may not fall within the regulations either because it is inoperable or obsolete. Plenty of officers that I have seen in traffic court have issued the Violation Ticket for something that is not within the bounds of the offence. There are also certain people or activities that are excepted from the rule. A person at the roadside may not be able to prove they fall within the exception at the time they are ticketed.

This is why we have a court process. To weed out the properly ticketed drivers from those who were not.

Of course, even the court process doesn’t right wrongs when a ticket comes with additional consequences. For example, if your vehicle is impounded for excessive speeding and the ticket is either withdrawn in court, or the court finds the accused not guilty of excessive speeding the Government refuses to pay back your money for the impound. Even if the officer was found to have been wrong. A hollow victory eighteen months later when you’ve been out nearly $400 for all that time.

And then the traffic ticket tribunal
But don’t forget – the BC Government is still planning to get rid of traffic court and implement a full-on “guilty until proven innocent” system. So now not only will you be presumed guilty and have instant consequences at the roadside, but you’ll also not be given a fair opportunity to be heard in your defence or to cross-examine the police officer on his subjective conclusion that what he thought he was was indeed a cell phone or other prohibited electronic device.

The Government spin on this public consultation is that they want your input. Let’s force them to do the right thing and tell the Government that we are tired of roadside justice, and tired of the police being judge, jury, and executioner.

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