When you’re caught driving while prohibited, the police will usually issue you some papers, tow your vehicle and let you on your way. At that point, it doesn’t seem so bad. But then you get home, turn to the internet, and discover this is more serious than it initially seemed. Driving While Prohibited is one of the most serious provincial offences in the Motor Vehicle Act. It is prosecuted like a criminal charge and there is mandatory minimum punishment.
Like a criminal charge, if you’ve been caught driving while prohibited, there is a requirement to attend court. The Appearance Notice the police officer issues have a court date that you or your lawyer must attend. This data is merely the first of several. The purpose of it is to ensure that you understand that you must deal with the allegation. Failure of someone to attend for the date (you or your lawyer) will normally trigger a warrant for arrest.
Not much happens on the first date, however. The initial date is not a trial; no evidence is heard, and the police officer will not be there. On the first court date for Driving While Prohibited, the prosecutor will usually have the particulars ready for your lawyer. This package of documents contains a narrative of the police actions, the formal document specifying the charge, the notes the officer made and documents from ICBC licensing which are evidence to establish that there was a prohibition in place on the specified date.
The first court date is really an opportunity to ensure the person charged understands the significance of the offence and that they must deal with it. The case is then adjourned for two weeks which allows the prosecutor to discuss issues in the case with your lawyer. The case may be adjourned again a few times for this purpose.
Now, the interesting thing about the fact that a Driving While Prohibited charge is prosecuted like a criminal charge is that, like a criminal charge, you as an accused are entitled to the same protections as are available in criminal procedure. For example, you are entitled to full disclosure. You are entitled to rely on defences that arise from violations of your Charter rights.
The onus is on the prosecution to prove the case beyond a reasonable doubt and you have a right to a trial to test the evidence.
The effect of this is that, if you’re charged with Driving While Prohibited, you find yourself in the criminal stream of files moving through the court. Issues such as court delays, witness problems and missing or weak evidence can provide a substantive defence or a defence in the process.
What does the prosecutor need to prove?
On its face, Driving While Prohibited is a straightforward case. The prosecutor simply needs to prove that you drove and that you were prohibited. Although the definition of “driving” or “drive” can be a complex legal issue, in most cases it’s simply a matter of the officer testifying about the traffic stop. The officer usually will have taken the necessary steps to establish your identity.
The second requirement, to prove that you were prohibited, is merely an issue of filing paperwork from ICBC. The prosecutor discloses the papers they intend to file and during the course of the trial, they simply hand the documents to the judge.
In most cases, the main hurdle for the prosecution is bringing all of this together. When the officer testifies, they will normally give sufficient evidence of the offence. The issue then becomes whether there is a defence, either due to a Charter violation, an officially induced error or something that can be identified during the course of the trial that would cause the court to conclude there is a doubt regarding one of these essential elements of the offence.
Usually, this arises from either evidence put forth by the defence or from evidence elicited during the cross-examination of the investigating officer.
The disadvantage of the criminal process is the time and expense of defending a Driving While Prohibited charge. Bearing in mind that the mandatory minimum punishment is a 1-year prohibition on the first offence ad jail on the second, one can understand why these cases are prosecuted in such a manner. The defences that arise from the more complex process are an advantage in that the onus on the prosecution is much higher and the rules of evidence must be strictly complied with to establish guilt.
Defending a Driving While Prohibited charge is a serious matter, but it doesn’t need to be scary.
We deal with these cases for people in every corner of British Columbia nearly every day. If there is a defence in the process or a defence in the facts, it’s a safe bet that we’ll identify it and put you in a much better position than you are right now. If you’ve just been charged with Driving While Prohibited, give us a call or send us a text and we can talk about how we can use the advantages in the process to get you the best result possible.