Court finds portion of B.C.’s new drinking and driving law to be unconstitutional

B.C.’s new tough drinking and driving law, in effect for a year, has just hit its first roadblock, with a significant section of the law – an automatic 90-day license suspension based on roadside blood alcohol tests of .08 mg or higher – failing to survive a Charter challenge.
The B.C. Supreme Court found the severity of the penalty for motorists who allegedly blow .08 mg or higher warranted some form of appeal process. But the legislation as it currently stands does not contain an adequate mechanism for drivers to dispute the results of a breathalyzer test, the B.C. Supreme Court found.
“I recognize the pressing nature and importance of removing impaired drivers from the highway,” B.C. Supreme Court Justice Jon Sigurdson wrote in his reasons for decision. “However, that government objective can be fully and efficiently realized while respecting the rights of the individual driver as well.
“The [automatic roadside prohibition] ARP regime that imposes prohibitions for drivers who ‘fail’ at the roadside [i.e. a breathalyzer test of .08 or higher] does not appropriately balance the rights of individuals and society at large. Relying on a search power derived from the criminal law that allows for a breath demand on suspicion but does not meaningfully allow the driver to challenge the suspension after the fact is not, in the entire context, reasonable.
“I therefore find that there is an infringement of s. 8 [of the Charter].”
Sigurdson did, however, find that lower penalties for drivers who blew in the ‘warn’ range – i.e. between .05 mg and .08 mg – were constitutionally valid.
Those who blow in the ‘warn’ range could be given, three, seven or 30-day driving suspensions and fined $200, $300 or $400 respectively.
“In connection with suspensions arising from the screening device registering in the ‘warn’ range, the penalties for a driver are lighter and the suspensions are far shorter; starting at three and seven days and increasing only as much as 30 days in the case of repeat offenders,” the judge wrote. “Accordingly, with respect to prohibition length and associated costs, the ARP regime, in the case of a ‘warn’ reading, does not approach criminal law in anywhere near the same manner as in the case of a ‘fail’ reading….
“While recognizing the weakness of the statutory review process as it applies to the ‘warn’ branch of the ARP, after considering and balancing all of the factors, I am not persuaded that the ARP law that authorizes a search resulting in consequences for persons who blow in the ‘warn’ range is unreasonable.”
The full case can be found at:
http://www.courts.gov.bc.ca/jdb-txt/SC/11/16/2011BCSC1639.htm