B.C.’s drunk-driving law has been dealt another blow after a Supreme Court judge overturned a driving ban on a motorist because the police officer couldn’t prove the man’s driving was affected by alcohol.
Justice S. Dev Dley of Kamloops ruled that simply blowing a warning reading on a breathalyzer — indicating a blood-alcohol level between 0.05 and 0.08 — is not enough to justify a government roadside driving prohibition. Dley ruled that police officers have to provide additional reasonable grounds to believe a driver’s ability is affected by alcohol.
“A plain reading of the legislation requires more than just a ‘warn’ reading,” Dley wrote in a ruling last week. “There is no presumption that a driver’s ability to drive is affected by alcohol solely on the basis of a ‘warn’ reading.”
Criminally, a driver is impaired if he or she blows more than 0.08 on a breathalyzer. In 2010, the government passed a law that allows it to fine drivers, suspend their licences and impound their cars if they blow as low as 0.05.
The government has issued 19,200 warn penalties consisting of licence suspensions of three, seven or 30 days, as well as 33,600 90-day suspensions for failing breathalyzer tests.
The law has lost several court challenges and had to be rewritten in 2012 after being declared partly unconstitutional.
This latest court ruling could help significantly in appeals cases, said Vancouver lawyer Paul Doroshenko, who has spearheaded several successful court challenges against the prohibitions.
“It’s going to change everything,” Doroshenko said. “Now the officer has to prove he’s got reasonable grounds rather than just rely on the reading.”
Doroshenko said the government continues to interpret its own “botched” law incorrectly.
In this case, Dley overturned a three-day driving ban on Lee Michael Wilson, who was stopped at a police road check near Coombs on Sept. 19, 2012.
A police officer noted the smell of liquor on Wilson’s breath and Wilson admitted to drinking four beers hours earlier. Two breathalyzer samples registered warning levels.
An adjudicator in B.C.’s Superintendent of Motor Vehicle office said the breathalyzer readings backed up the officer’s belief that Wilson’s driving was affected by alcohol.
But the Supreme Court justice noted the law has wording that requires the additional belief that a person’s driving ability is affected at the warning level.
“There was no evidence to suggest that a ‘warn’ reading would affect Mr. Wilson’s ability to drive,” Dley wrote.
“There was no evidence, either independent of, or in conjunction with the ‘warn’ reading, that would suggest Mr. Wilson’s ability to drive was affected by alcohol.
“On the whole of the record, there was simply no evidence upon which the adjudicator could reasonably conclude that Mr. Wilson’s ability to drive was affected by alcohol.”
The government has lost previous court battles over whether police should have to provide sworn statements as evidence in impaired cases. It has had to alter its appeals process and refunded money to more than 464 drivers after a massive review of questionable cases this year.
In a statement, the government said it is reviewing the Supreme Court decision and deciding whether it will appeal.
NDP critic Kathy Corrigan said that in the wake of all the successful court challenges, the government needs to either fix the law or scrap it.