24-hour driving prohibitions for alcohol vs. drugs

The Motor Vehicle Act permits a police officer to issue a driver a 24-hour driving prohibition for alcohol or a 24-hour prohibition for drugs. In both cases the time period is the same which suggests that these are similar driving prohibitions. But when it comes to alcohol vs. drugs, the law is very different. In fact, when it comes to 24-hour driving prohibitions, the procedure, evidence and review are almost incomparable.

The BC Motor Vehicle Act clearly sets out two different subsections to address drug-impaired and alcohol-impaired driving. These two subsections have fundamental differences. If you are issued a 24-hour driving prohibition under s.215 of the Motor Vehicle Act, an officer must then determine which subsection of this act you are alleged to have breached. S.215(2) is for affected by alcohol, while s.215(3) is for affected by drugs. While both offences can result in 24-hour driving prohibitions, the review provisions for each offence are completely different.

The officer cannot add evidence after the fact to bolster their claim that a driver was under the influence of drugs.

How is a 24-hour driving prohibition for drugs different from a prohibition for alcohol?

A driver who has received an s.215(2) notice for affected by alcohol is allowed to apply to RoadSafetyBC to have the matter reviewed by an adjudicator. At this stage, the driver can introduce further evidence to challenge the allegations. If the driver is unhappy with the adjudicator’s decision, the decision can be further reviewed by a BC Supreme Court judge. This means there are effectively three levels of decision-making for an impaired by alcohol decision: the officer at the side of the road, the RoadSafetyBC adjudicator, plus the Supreme Court justice.

A driver who received an s.215(3) notice for affected by drugs, however, does not have this many opportunities for appeal. Drivers given a notice of 24-hour prohibition for drugs must go directly to the BC Supreme Court for a review. In addition, the driver is not allowed to submit further evidence at the BC Supreme Court.

 

What does this mean for my alcohol or drug 24-hour driving prohibition case?

Due to the distinction between these two 24-hour driving prohibitions, an officer at the side of the road must be clear in identifying whether they are alleging a driver is impaired by drugs or alcohol. In a recent successful case represented by Kyla Lee, our client was initially given a 24-hour prohibition for suspected drunk driving and taken to a police detachment. At the detachment, our client was ordered to provide a breath sample, which revealed he had not been drinking.

The police then decided to test our client for drug use – even though the officer did not suspect drug use when our client was given the 24-hour prohibition. It seems to us that the officer then retroactively changed the 24-hour prohibition from alcohol to drug use. This is not allowed.

Here’s what the court said:

“If the legislature had wanted to empower peace officers to issue a 24-hour prohibition based on reasonable grounds to believe a driver’s ability was affected by either alcohol or drugs, it could easily have done so in a single section. Instead, the statute requires the peace officer to determine which of the two sections applies and requires the officer to have reasonable and probable grounds relevant to the applicable section. The choice the officer makes informs the driver of what is alleged and, as said above, directly affects the driver’s right of review.

“All of the evidence indicates that up to the time she issued the notice, Constable Porter believed the petitioner’s driving ability was affected by alcohol. Her notes contain no evidence of any reasonable and probable grounds for a belief that the petitioner was affected by a drug other than alcohol. In fact, there is nothing in the notes to suggest that possibility was even considered before the notice was issued.”

 

Plain English, please. Why must the officer prove a suspicion of drug use before issuing a prohibition?

In prosecuting drug-related 24-hour prohibition cases, the officer cannot add evidence after the fact to bolster their claim that a driver was under the influence of drugs. As one judge said, to permit this “raises the appearance of him defending or supplementing his decision and potentially the appearance of, or actual reconstructing of, his evidence in order to justify his decision.”

In other words, the courts were concerned officers who made a wrong decision on the roadside could potentially then go about trying to fix evidence to “justify” that initial flawed decision.

In our client’s case, that appears to be exactly what the officer tried to do. The officer attempted to introduce a further report and an affidavit written more than a month after the 24-hour driving prohibition was issued. The court found both the report and affidavit inadmissible. This case proves again that officers must base their decisions to prohibit drivers on evidence available to them at the time, not based on evidence cobbled together after-the-fact.

 

24-hour driving prohibitions for drugs

We challenge 24-hour prohibitions for drugs and 24-hour prohibitions for alcohol because the consequences of these driving prohibitions are significant for our clients. These short prohibitions, once recorded on the driving record, can shut down all sorts of career paths and in the long run they can cost people thousands of dollars in lost opportunity over their lifetime. When it comes to prohibitions for drugs, simply having this prohibition on your driving record is an announcement to the world that you have a drug problem. In our view that’s simply unfair.

If you have received a 24-hour driving prohibition, give us a call. We have years of experience challenging 24-hour driving prohibitions and can help you find a successful conclusion to your case.