New drunk driving laws just the old ones on steroids

The "new" drinking and driving laws were brought into force this week and there is a surprising amount of awareness and chatter about them. I say surprising because many new drinking and driving laws have come into force in the past, but never with such awareness. I suppose this speaks to the success of the government's advertising campaigns. Good for them.

But, are these laws really so new?

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First of all, the criminal laws surrounding impaired driving have not changed since July 2008. The ones in the news now are provincial, regulatory laws. Thus, people need not concern themselves with increased penalties or other changes within the criminal sphere. As well, there is a myth that needs to be dispelled: the legal limit has NOT been lowered to .05 mg. It is still .08 mg.

What has come into force are increased penalties and sanctions imposed by the Province. These are not criminal. We have had 24-hour driving prohibitions for a very long time, which can be imposed by a police officer at the roadside (immediately). The traditional means by which officers decided to impose this sanction was a "warn" indication on an Approved Screening Device (ASD). A "warn" is indicated when a person's blood alcohol level is between .05 and .1 mg. Now, they have the power to impose 72-hour prohibitions for the same "warn" reading plus a $200 fine (for first offence).

We have also had 90-day, Administrative Driving Prohibitions (ADPs), for more than a decade. These were imposed whenever someone blew over .08 mg or if they refused to provide a breath sample. There was a right of review for ADPs and so they would not take effect for 21 days. What has changed is that they can now be imposed, effective immediately, and they come with a fine of $500, a 30-day vehicle impoundment, and the person must take the Responsible Drivers Programme ($900), and then drive with a breathalyzer device in the car (Interlock device) for one year ($1,700). Previously, these latter sanctions would only be imposed - by the provincial Superintendant of Motor Vehicles - upon conviction in criminal court for impaired driving, driving while over .08 or refusing to provide a breath sample.

Why should we worry?

Of greatest concern is the fact that these tougher new sanctions can all be based on the ASD, as opposed to the more sophisticated breathalyzer machine ("Approved Instrument") that is used at the police station. Until now, the ASD has only been used as a screening device, to develop the grounds to require breath samples on the more reliable Approved Instrument. The courts could not rely on the ASD results as evidence of impairment or blood alcohol level.

Thus, I have many concerns about this new procedure. The ASD was only ever prescribed to be a screening device. The Approved Instrument has many checks and balances designed to ensure its accuracy and proper operation, including generating printouts of the calibration and breath testing results. As well, it could only be relied upon if two proper samples were obtained. Not only does the ASD not have this level of quality assurance built into it, but now, only one sample from the ASD is required to impose the new sanctions. Simple factors such as very recent consumption of alcohol or a deep lung burp or regurgitation can artificially inflate the results on the ASD. Thus, many false positives may result in people losing their licence immediately for three months and then having to endure expensive mandatory programmes for the next year. Further, the rules of evidence that apply in court, the burden of proof beyond a reasonable doubt, and the rights enshrined in the Canadian Charter of Rights and Freedoms (the "Charter"), do not apply to these new procedures. The latter would include the right of full disclosure of the evidence against you. And after all that, a person may still be charged criminally for the same actions.

So, no, the legal limit has not changed. But the penalties and sanctions imposed by the Province have dramatically increased. Twenty-four-hour prohibitions used to be a preventative measure that was not considered a form of offence. It is clear that they are seen as such now and that the focus of these measures is punitive. Sadly, they are based on very limited evidence. To my mind, our Province (ironically, headed by a convicted impaired driver), has decided that it cannot rely on the courts to decide these issues and has substituted its own regime to regulate criminal driving offences. However, it is doing so using procedures that do not offer the safeguards we expect in a free and democratic society. As a result, I expect to see a constitutional challenge to these new laws in relatively short order and I am confident that it will succeed. I would relish the opportunity to be the one to make that argument.

Greg Diamond is a lawyer at Double Diamond Law in Whistler, whose practice includes Impaired Driving and other driving offenses. Greg can be reached at (604) 938-0890 or gdiamond@ doublediamondlaw.com

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