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Breathalyzer screeners: A warrantless search

warantless search

If the police conduct a search of your stuff, i.e. your house, your car, your cell phone records, they normally need to get a warrant. If they think you have a tattoo on your butt depicting the murder weapon, they would have to go to a judge, explain their case and ask for a warrant to pull down your pants so that they could get a look. If they didn’t get a warrant and just went ahead with it anyway, there’s a good chance that the court would say that the evidence obtained (a description or photos of your tattoo)...

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Breathalyzer screeners and “Your Rights”

Your rights

In Canada, except in BC, courts have accepted that there are certain restrictions on the use of evidence that the police get by violating your rights. There is an understanding that, if the police violate your rights while forcing you to blow into a screener breathalyzer, the evidence won’t be used against you for the purpose of punishing you. This is important because in Canada, except in BC, people expect that the police and the Government will respect their rights. Historically, governments and the police in Canada have been kept in check by the courts. When they wanted to take away...

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Some significant IRP cases in court

Significant IRP Cases

There have been some significant IRP cases in court in the last few weeks, and decisions from court in some key IRP cases. It's time for an update. Wilson, Richardson On Friday May 30, 2014, the BC Court of Appeal rendered a decision in the Wilson case, overturning the decision of the BC Supreme Court. Wilson came out last September, a decision of the BC Supreme Court in Kamloops concerning a Warn IRP. In Wilson the Court said that the legislation required the officer to form an opinion to issue an IRP. The opinion would have to be that the driver was...

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Automatic Prohibition? Criminal DUI?

Automatic Prohibition DUI

What's in a name? When it comes to drinking and driving law, a great deal is contingent on the words that are used. For example, in the legislation that introduced the Immediate Roadside Prohibition law, an IRP is actually called an Automatic Roadside Prohibition.  So instead of IRP you may see in some documents a discussion of an ARP,  ARPs or an Automatic Prohibition from Driving. What happened was that after the law was written, somebody in the Government noticed that if you called this new DUI an "Automatic Prohibition" you couldn't blow this piece-of-crap law past a judge. Courts aren't in...

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New Driver with an IRP

Class 7 "N" new driver with DUI? We can help

It's awful being a New Driver in BC. If you've got an “N” and you're accused of driving after drinking, you've got a big problem. In BC the graduated license program is akin to having an axe above your head with a hair release. If you're a Novice / New Driver, i.e. you have an "N" and you get a ticket for the most minor infraction, you can expect the Office of the Superintendent of Motor Vehicles to pull your license. We think it's cruel. A graduated license program can make sense, but the way it's implemented in BC is just...

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IRP law off to the Supreme Court of Canada

Supreme Court of Canada

We mentioned the other day that the first version of the IRP law, i.e. the BC Court of Appeal decision in Sivia, is being appealed to the Supreme Court of Canada. We noted with interest that within a day or so of us mentioning this on Twitter, articles appeared in the Vancouver Sun and then journalists at Global TV reported on it. With the old IRP law off to the Supreme Court of Canada, we wonder what the future holds. The first step is whether the Court grants leave to appeal. Cavalierly we suggested that the Court will surely grant leave...

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SNAFU update 3 for old IRPs

Old IRPs are now a confusing maze

Of course, the first version of the IRP scheme was found unlawful in two levels of court in BC. Now the case is heading to the Supreme Court of Canada. And at the same time, people who were punished under the unconstitutional law are being punished again because the OSMV has sent them notice that they must serve the balance of their driving prohibitions starting as of April 3, 2014. Was it a trick to wait until the 30 days had expired? You might think that bearing in mind that we asked the government lawyers the direct question and received vague...

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Update 2 re: IRP 1 SNAFU

Between a rock and a hard place with your IRP

This is an update to two of our previous blog posts; SNAFU at the OSMV affecting some people with old IRPs and SNAFU update for old IRPs. You'll need to start with those two posts to understand this IRP 1 SNAFU update.  Also, this only applies to IRPs issued between September 20, 2010 and November 30, 2011. The update: On Friday May 2, 2014, we received word that leave for appeal has been sought to the Supreme Court of Canada on the Sivia decision. Both sides have appealed the lower court rulings, so we expect that the Supreme Court of Canada will...

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We don’t trust the police

We don't trust the police in BC or their breathalyzers

After years of defending drinking and driving cases, and after having reviewed studies, reports and disclosure in thousands of DUI cases, and after having conducted hundreds of breath tests with a dozen different police breathalyzers, you might think that we've gained more confidence in the reliability of breathalyzer testing. But that's not the case. What we've found and learned over the years raises concerns that would have never crossed our minds a decade ago. We no longer have any confidence in breath testing to determine blood-alcohol content, or blood tests for that matter. We don't trust the police and we...

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Known breathalyzer defects

Breathalyzer defects are common but unreported

Lots of people who are stopped for DUI assume that they were over the limit because the machine said so. It's a funny thing, but it's difficult for people to wrap their head around the idea that breathalyzers don't measure their blood. They measure the alcohol in your breath and extrapolate to estimate the alcohol in your blood. There is a margin of error for these devices, and often enough the readings fall outside the margin of error. They can appear to be functioning, and yet the readings can be wrong every time. There may be unknown problems in a...

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