Police officers may always prohibit a person from driving for a period of 24 hours if there are “reasonable and probable grounds” to believe that the person’s ability to operate a vehicle is affected by alcohol[1]. A 24-hour prohibition notice is issued roadside to the driver and a copy of the notice is sent to ICBC to be placed on the driver’s record.
What are reasonable and probable grounds?
For the purposes of a criminal investigation, the sample provided at the roadside does not provide the evidence for a subsequent criminal charge. Rather, it may provide the “reasonable and probable grounds” for a further analysis under s. 254(3) of the Criminal Code. The test under s. 254(3) is conducted with an approved instrument (breathalyzer), not an approved screening device (roadside test) and provides evidence that may be relied upon by the Crown if criminal charges are filed.
While a roadside test may provide sufficient evidence for a 24-hour prohibition, the information and fact sheets provided by the Office of the Superintendent of Motor Vehicles maintain that an approved test must be administered if a driver requests it [2].
What if you are not convicted of a criminal offence?
The roadside licence suspension provided for in s. 215 of BC’s Motor Vehicle Act is independent of criminal charges. Although the 24 hour roadside suspension was challenged in R. v. Wolff, the Court of Appeal held that the legislation was within the powers of a provincial legislature, and it did matter whether the power was exercised before or after a conviction under the Criminal Code [3].
Are you entitled to seek the advice of a lawyer before taking the roadside test?
No. Courts have maintained that although roadside stops result in a violation of the s. 9 right not to be arbitrarily held and the s. 10(b) right to counsel, these violations represent reasonable limits on these rights under s. 1 of the Charter [4]. In R. v. Orbanski the Court held that the limit on the s. 10(b) right of drivers was a limit “prescribed by law” in that a right to counsel in these circumstances would be incompatible with the “operational requirements” of police officers checking for sobriety of drivers [5].
Is it legal for a police officer to impound your car?
Yes. If the officer believes that impoundment is necessary to prevent the vehicle from being operated before the prohibition expires they may do so at the owner’s expense.
Can you appeal the impoundment?
No. You or an authorized representative may go to the impound lot to pay the towing and storage fees and reclaim the vehicle when the impoundment period ends.
A driver whose vehicle has been impounded is liable for the costs of towing and storage and those costs constitute a lien on the motor vehicle. These costs are set by the Lien on Impounded Motor Vehicle Regulation [6].
The current fee for storage is $19.55 per day within the Lower Mainland and Victoria, and $16.10 per day in the rest of the province. The towing fees (for an average car) are $78.89 for the first 6.0 kilometre, with per kilometre charges for any additional distance.
What are the consequences of a 24-hour prohibition?
The prohibition will stay on your record. Drivers with three 24-hour prohibitions will be required to participate in the Responsible Driver Program and the Ignition Interlock Program, which are remedial programs for impaired drivers.
Can you challenge the Prohibition?
Yes, you may request a review of a 24-hour prohibition from the Superintendent of Motor Vehicles in writing using the Application for Review of a 24-Hour Prohibition form, available at any driver licensing office only on the following grounds:
- the police officer failed to administer a blood alcohol test when requested;
- you were not the driver or did not have care or control of the vehicle.
There is an application fee, which must be paid when submitting your application. There is no provision for a waiver of this fee and the fee will not be refunded after a review has been conducted, regardless of the outcome. The result of the decision will be mailed to you and the suspension will either be revoked and removed from your driving record, or upheld. Review decisions are final and binding, though they are subject to judicial review in B.C. Supreme Court.
What should I do if I am pulled over and have to take a roadside test?
If you have been stopped by a peace officer and you register a warning or fail on a roadside test, or the test is not working properly and you have not been drinking you may want to ask the officer for a test on an approved device (breathalyzer) at the nearest station. These devices are more accurate and if you think the roadside test is displaying an incorrect result, a breathalyzer may help. If the officer refused to allow you to take a test on an approved device, you have grounds for the decision to be reviewed.
If you have any traffic or legal issue, it’s strongly recommended that you consult a lawyer who practices law in your jurisdiction.
ENDNOTES:
1. Bill 4 (2009) Wills, Estates and Succession Act. Available at: http://www.leg.bc.ca/39th1st/3rd_read/gov04-3.htm. [1] Motor Vehicle Act, RSBC 1996, c 318, Part 4, s. 215.
2. R. v. Wolff (1979), 9 B.C.L.R. 390 (C.A.).
3. R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 SCR 3, R. v. Thomsen [1988] 1 S.C.R. 64, Section 254(2) of the Criminal Code
4. R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 SCR 3.
5. Lien on Impounded Motor Vehicle Regulation, B.C. Reg. 262/2010.
