24 Hour Prohibition & Driving W/O Consideration
 

Hello,

Hoping someone can answer a question for me. Basically I exercised poor judgment and got a 24 hour suspension driving back to Vancouver after meeting a friend at a pub in Surrey for his birthday. I was given a 24 hour suspension which was fine however also got a ticket for "driving without consideration". I find this funny because it was at a roadblock and I was inching forward for about 10 minutes (e.g. couldn't have exhibited any sort of careless driving). I thought this was standard however after asking around, no one else was also given this ticket when they got a 24 hour. I can understand that driving after a couple of drinks might be construed as "driving without consideration", however if this ticket isn't normally given, why the hell did I get it? Is this just what certain cops do? certain detachments? I'm going to court next week and am just trying to figure out my angle. Basically my argument will be that while yes I had a couple drinks (but was well below the legal limit of .08), theres nothing implicit in that which suggests I was driving without consideration.

BTW, MVA 144 (1) b reads:

A person must not drive a motor vehicle on a highway (b) without reasonable consideration for other persons using the highway

If it's because I was on a "highway", I was on the on-ramp getting on the No. 1, but wasn't actually on it yet.

Are there any cops here who can comment?

Read the definition of "highway" under the Motor Vehicle Act. It covers more than just the "highways". ;)

And be thankful you didn't get a ticket for Drive Without Due Care (Sec 144(1)(a) MVA), which is $368. That is what I usually give out with 24hr suspensions, along with any other violation tickets applicable. It is commonplace for police officers I work with and speak with to give out the Drive Without Due Care tickets along with the 24hr Suspension.

You were driving with what the Government of British Columbia deems to be an unacceptable amount of alcohol in your system, with your ability to drive a motor vehicle affected in such a way that you pose a risk to yourself and others on the road.

Well correct me if I'm wrong I think .08 is what the "Government of the Province of British Columbia" deems acceptable - otherwise they wouldn't bother specifying a limit. I fully admit I had a couple drinks, however I also did nothing in contravention of the law as it is written.

So basically it comes down to the individual officers discretion, that's all I needed to know and I think gives me some validity to my claim. I think there's a problem with the extremely vague wording of this particular section of the MVA. Especially given the fact some cops hand them out along with 24 hour suspension and others do not. I guess I will try my luck in traffic court and see how it goes. Might as well to save the $200 plus 3 points.

Thanks!

Incorrect. In BC, its 0.50mg% = 24hr suspension (administrative prohibition). 0.80mg% is what the Criminal Code deems to be worthy of a criminal charges.

Fair enough, but still not a violation of the criminal code.

This is all I needed to know. I'm pleased to hear the ticket I got was entirely discretionary.

Cheers!

so did blow a fail or a warn on the ASD? I'm guessing it was a fail for them to throw on the ticket as well. Did it happened in Vancouver or Surrey?

Yes the ticket will hold up in court. There is already precendence for this situation.

No, a warn is good enough for the ticket in this case.

Not a violation of the Criminal Code, but a violation of the Motor Vehicle Act. And when it comes down to it, all Violation Tickets are served at the discretion of the police officer.

Yes, but lets be honest - I'm much more concerned with contravening the criminal code than the MVA. The stakes are much higher ;)

In any case, thanks for the replies. If I'm successful I'll pretend it's found money and buy myself something nice lol.

Just a warn.

That depends. You are much more likely to be prohibited from driving under the MVA and you can go to jail for up to 6 months for an MVA offence.

This is a related question that I thought of this evening - is it possible to be charged with impaired driving solely on the basis of failing the ASD? I'd imagine it's technically possible given the way the law is written but probably not done in practice due the likelihood of it not standing up in court? Is this true?

You drove after drinking and needlessly endangered other people. I would say that's driving without consideration.

The question is... how many times has this guy done it before now and finally got caught?

And this part of his post...

...makes it sound like he has a few friends who do the same. Have fun attending funerals! If not your own... :rolleyes:

similar situation with someone i know... (no its actually not me)

two court dates were given...

Q: would it be recommendable to get a Lawyer, if said person blew > .80?

person im talking about had been given a driving without consideration ticket as well.

You could be charged with impaired driving after failing the ASD, based on your physical impairment symptoms...but it is unlikely as if you were that blasted, there would not be any need for the ASD. Impairment charges are either for over .08, or for the physical symptoms only. They are both individual charges but almost always one is dropped and only 1 goes ahead for trial.

That's ironic.

http://couragemyfriends.files.wordpr...ested_dui2.jpg

Honestly, most of the impaired drivers I've dealt with (I've dealt with a LOT in my relatively short career) have been people in positions that taking a taxi or planning ahead wouldn't have been a decision that was hard to make if they were sober. They were certainly in a financially capable position but thought that they were "ok to drive, its only a short distance". There was an MLA (I think? or some other gov. employee) who was caught just recently, too.

Tell ya, the one thing that really annoys me is that one CounterAttack radio commercial purporting to have cops telling their stories...

Now most of the examples they use are valid ("Some people think you're more careful after a few drinks... not from what I've seen") but the one that's stupid is the "One guy was afraid his car would get stolen if he left it overnight... instead, he lost it to the impound."

Yeah... difference there is, if it's stolen, it's probably gone for good along with everything in it. With the impound, you at least get it back in the same condition you left it and with the contents intact.

Anyway, that's my little rant :)

Soundy, you obviously have not seen some of the impound lots! :)

Okay... you at least get it back.

Why would he have 2 court dates? If he just got a 24 hour and a ticket the only way he'd have a court date is if he disputed it.

Sounds like he was charged with impaired driving. I'd get a lawyer if I were him. At least when I learned my lesson it only cost me $200 :) And I stress, learned my lesson - I don't drive after a couple drinks anymore.

Something for y'all to think about!


Incorrect Procedures by Police Agencies in BC.

Please, as you read this, keep in mind my respect for the police and the job they have to do. My respect for the OSMV , who also has an important job in protecting the public while driving, is starting to falter though as they only have to answer to the Supreme Court of BC and this has allowed certain things to get out of control.

Let’s first go over why Section 215 of the MVA (Motor Vehicle Act), the 24 hour prohibition was legislated. The 24 hour prohibition was designed as a tool for police to use on the roadside to take drivers that have been drinking, but not impaired, off the road to protect the public. If an officer has reasonable and probable grounds to believe that the drivers ability to drive is affected by alcohol, that officer can issue a 24 hour notice. This does not require a roadside test, and can be based on observation by the officer. Quite a bit of power, the officer now becomes judge and jury. Those that created Section 215 realized this and put a subsection (section 215(6)) that protects “civilians”. Subsection 6 allows the driver to ASK for a roadside test to prove that he/she is under the legal limit of .05 in BC. If it is proven that the driver is under the legal limit of .05, the prohibition is terminated and he/she is allowed to drive. Below is what is written on the reverse side of the 24 hour notice given to you by the officer:

“If a blood alcohol test was NOT administered and was not a basis for serving this notice, you have the RIGHT to forthwith request a test to determine your blood level. In the event the test indicates that your blood alcohol level does not exceed 50 milligrams of alcohol in 100 millilitres of blood, the prohibition from driving is terminated. The prohibition will not appear on your driving record and you will be allowed to drive.”

This is a great “balance” and protects a driver from an unwarranted 24 hour prohibition that may occur resulting from an officers incorrect assumption. This section of the MVA works very well for the job it was intended to do. This section, in its entirety, also describes a driver that is ALLOWED to drive with a BAC of .01 to .049, which is NOT a novice driver in BC.

A side note to this section. Police are NOT required to mention the fact that the driver can request a roadside test to prove innocence. I guess we are all supposed to know the MVA , as would a lawyer perhaps. Sure, it is written on the reverse side of the notice, but who reads the back of the ticket until the police officer has left? Who might have trouble reading the grey lettering on blue paper in low light? Who would read it while they are dealing with the officer? A pretty slick way of issuing a ticket that is uncontested at the “scene”. You know what is very ironic? Many officers I have talked to in my fact finding missions, didn’t even know section 90.3 existed, for whom it was designed and it application! Why is this ironic? These are the same officers that expect civilians to know the MVA and realize the right to ask for a roadside test!

Now we introduce the Graduated License Program in BC. Within the GLP, we have a class of drivers called Novice drivers. These novice drivers are held to higher standards and lower penalization levels than “regular” drivers and as such, points, prohibitions etc result in harsh (so it should be) driver sanctions. License suspensions of 3 to 4 to 12 months are applied if certain conditions are met. When the GLP came into effect, legislation was also written to “accommodate” drivers within this program. One piece of legislation that was enacted is Section 90.3, the 12 hour suspension. This section was written to deal specifically with drivers that are prohibited of having ANY alcohol within their system while driving. Yes, this IS a description of a novice driver! Zero tolerance!

When a police officer begins his investigation into the drinking and driving of a novice driver, they must begin with section 90.3! Section 90.3(2b) requires the officer to demand a breath sample to PROVE that there is alcohol within the novice drivers system before issuing the 12 hour suspension. PROVE! Why is this so important? Because of the penalties and ramifications that will occur to a novice driver, a possible 4 month license suspension for instance! With proof, these ramifications are justifiable, without proof, they are not. A 12 hour suspension cannot be issued by the police based on observation alone as with the 24 hour prohibition. Evidence is required, therefore the demanded breath sample.

So why are police departments still giving 24 hour prohibitions to novice drivers as a first step in their investigation? Having gone over what the two sections were designed for, I will bring up some points that SHOULD make everyone question this.

1) In its entirety, the 24 hour prohibition describes a driver that is allowed to drive with SOME alcohol in their system. This does NOT describe a novice driver. So, how can the 24 hour be issued to a novice driver?
2) The 12 hour suspension carries the description of the novice driver, exactly!
3) The 24 hour prohibition is designed to take a driver off the road for 24 hours. Remember, this can be based JUST on the officer “thinking” the driver has alcohol in their system. When it is applied to a novice driver, it does not just take the driver off the road for 24 hours. It will result in a license suspension of 1 month or longer, NOT what is the intent of this section!
4) The 12 hour suspension WAS designed to penalize the novice driver IF it is PROVEN that the driver has alcohol within their system while driving. First with a roadside license suspension, then with a driver sanction applied by the OSMV.

The Superintendent and our government are conveniently allowing this to slide under the radar. Appeals by novice drivers on their 24 hour prohibitions are denied by the OSMV with the following statements:

”Based on the evidence before me, I am satisfied that you had the right to request that the peace officer administer a test of your blood alcohol level”
And
“Based on the evidence before me, I am satisfied that you did not request the peace officer administer a test of your blood alcohol level.”

First of all, how many people actually know they have that right? Did you? Secondly, if a novice driver does ask for the test, and blows below .05, is he/she allowed to drive? This is key….allowed to drive, as stated as a right on the 24 hour notice just handed to them. If the officer DOES let the driver go, it is in contradiction to BC legislation of zero alcohol tolerance and a novice driver. If he doesn’t let the driver go, and with volunteered evidence, now decides to issue a 12 hour suspension, three things come to mind. First of all, to me, it’s an admission to not using the correct charge to begin with. Secondly, evidence that a person voluntarily gave to prove innocence in one charge, is now being used against him in a second charge. Kind of a catch 22 isn’t it? Mmmm…..do I prove myself innocent in this charge, and possibly prove guilty in another? Isn’t this a constitutional issue? Section 11 of the Canadian Charter Rights and Freedoms does not permit us to self-incriminate ourselves. Thirdly, if that driver cannot be allowed to drive from that scene as a result of the investigation into drinking and driving, the right on the back of the 24 hour prohibition means “diddly squat”!

Questions that I have and would like answers for:

1) Why is the OSMV, part of OUR government, standing by police agencies giving 24 hour prohibitions to novice drivers when it appears to be unlawful or constitutional?
2) Why don’t officers let the drivers know about the right to ask for a roadside test? Could it be that many of the 24 hour prohibitions, whether issued to a novice or regular driver, would not, or could not be completed? This right is VERY important in this situation, and should be told to the driver, and the police should make sure the driver understands this right as this is the same right that the OSMV uses against you as a denial for any appeal of the 24 hour prohibition.
3) Can you ask for a roadside test 2 hours after the police have left, once you’ve read the ticket? Of course not, and it’s a little late…but that’s when most drivers would get a chance to read or find out about their right.
4) How many unwarranted 24 hour prohibitions are given every year because of these incorrect procedures by the police? Both to regular and novice drivers?
5) How much money does the OSMV bring in from appeal fees, which they conveniently rubber stamp as denied, in dealing with 24 hour prohibitions?
6) How has it been allowed to let a section of the law, the 24 hour prohibition, morph into something that it isn’t, or was NOT intended for? It was intended to get a driver off the road for 24 hours, not to be used as a tool by the OSMV to suspend drivers for 4 months!
7) Why is the only way of fighting the decisions of the OSMV by going to the Supreme Court of BC? This venture will cost you a minimum of $2500, a tough pill to swallow if you are innocent!
8) A simple question….why was section 90.3 enacted in the first place then? Why not just continue to use section 215, the 24 hour prohibition? Was it because the 24 hour prohibition does not address the situation of the novice driver?


You will hear it said many times that driving is a privilege. If a person fulfills the medical, capability and responsibility qualifications needed to be a driver, does not that person then have the right to drive? I believe that we do have the right to drive, as much as we have the right to walk in public. And as such, we must be protected of our rights. Nothing has to be re-written, only procedures changed. If the police would begin their investigation of a novice driver and drinking and driving with section 90.3 (as it is designed for) there would be no issues. If the police would be so kind as to remind the driver of their right to request a roadside test, there would be no issues. Then the OSMV can do their job with proper evidence.

Yes it is...you can be charged without any breath test at all, based on observed symptoms.,.,.however it is better (from the Crown's point of view) if you also have blood alcohol readings to enter as evidence as it establishes the actual level of impairment by alcohol.

As far as getting a due care/reasonable consideration ticket goes, a court ruling in Victoria I believe, established that it was an appropriate charge. Like any decision to charge, it is up to the Cop handling the situation...but any Member who deals with the results of alcohol abuse (and that is all) I cannot see why a due care VT would not be issued after getting readings over the legal minimum. You didn't tell us what they were but I guess we can guess they were over the .05mg%? IMHO it is an entirely appropriate charge for the situation you outlined.

Ya, except unfortunately you can't get impound lot insurance.

I'd rather have my car stolen, in my experience, the missing items and damage to the car is about equal. With a thief it is a clear cut reimbursement/repair through ICBC back to "new". With a towing/impound company you spend months on the phone, writing letters, threating legal action and eventually (if your lucky) you get a courtesy cheque for the amount equal to a repair with a hammer and some child's paints

Shows you who the real thieves are <.<