According to the B.C. Supreme Court, part of B.C.'s new immediate roadside prohibition law violates the constitutional rights of Canadians.
In a Nov. 30 ruling Justice Jon Sigurdson decided that under the new law, police have unreasonable powers of search and seizure when it comes to drunk drivers whose blood alcohol level is 0.08 per cent or higher.
He said the new law results in criminal like consequences for the driver and it leaves them without an option to appeal the decision, which violates the Charter of Rights and Freedoms.
He said that drivers who blow in the fail range [above 0.08] should have a chance to challenge the decision if their vehicles are impounded for 30 days and they face thousands of dollars in administrative penalties.
Justice Sigurdson did however uphold the increased roadside penalties for blowing in the warn range [from 0.05 to 0.08 per cent]. He made the ruling that these penalties are still permissible because the consequences are much lighter.
British Columbia's immediate roadside prohibition law was introduced in September 2010 and is the toughest in Canada. Under the law fines of $600 to $4,000 can be applied, vehicles can be impounded for up to 30 days and 90 day driving bans can be enforced. There is also a $500 fine for any motorist that refuses a Breathalyzer test or for anyone that has over 0.08 blood alcohol level and a cost of $1,420 to take a mandatory responsible driver course.
Solicitor General Shirley Bond said the Supreme Court ruling means the B.C. government needs to amend its one year old impaired law to give drivers who exceed 0.08 on the roadside screening device a chance to appeal.
"Obviously we are going to take the time to study the decision in depth so we can determine specific next steps and impacts. The government will, however, make a change to the Motor Vehicle Act to address the judge's concerns. The ability to challenge the approved screening device reading will be added to the current grounds for appeal," Bond said.
Until these changes are made Bond said the circumstances for those in the fail range will revert to the previous law that was in place in B.C.
Under that law, police have the option of determining whether or not a criminal charge is warranted and motorists could still face criminal charges and a 90 day administrative driving prohibition. "It's important to note that the immediate roadside prohibition remains in place for those who blow in the warn range and those sanctions, including license suspension, are still in place. The public should also understand and be assured, that if you drive today and blow over 0.08, you could be charged criminally under the Criminal Code and could still receive a 90 day administrative driving prohibition," she said.
For drivers that have a blood alcohol reading in the warn range they can expect a three day driving ban, a $200 penalty and another $250 fee to have their driver's license reinstated.
They may also have their car impounded for three days and be billed for towing and storage.
Tasha Schollen, Ministry of public safety media relations representative said it is unclear as to what will happen to those that have already been charged with offenses in the past year.
"Although the judge made a decision, the precise terms of the court’s order are not yet known and we continue to review the decision. It is important to note that, since this legislation came into effect just last September, we have seen 45 lives saved. We want to continue to see lives saved, so we can assure British Columbians that police will continue to be out on highways enforcing the criminal law against impaired driving while we consider how to address the judge’s concerns."
With files from Tom Fletcher.