Drinking and Driving

Script 190 gives general information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

 

BC and Canada both have laws against drinking and driving

This script explains what can happen if you drink and drive. Both BC and the federal government have laws against drinking and driving. Usually, only the BC law applies. Sometimes, federal law applies instead of—or in addition to—BC law. Drinking and driving is a very complicated area of law with serious consequences.

It’s not a crime to drive with some alcohol in your body, but it is a criminal offence to drive if your ability to drive is even slightly impaired due to alcohol. The prohibited blood alcohol level for drivers starts at 0.05 in BC. The best action if you have been drinking is not to drive—take a taxi or bus or call a friend for a ride.

1. If the police stop you, what tests must you take?

If the police stop you while you are driving a vehicle, or while you have care or control of a vehicle even if you’re not driving it, you must take the following tests. Care or control of a vehicle means you were in the driver’s seat and had access to the ignition key, even if you were parked.

a. Blow into an approved roadside-screening device or ASD
If the police reasonably suspect that you have alcohol in your body, they may legally require, or demand, that you immediately give a breath sample by blowing into a hand-held breathalyzer, called an Approved Screening Device or ASD. If the police don’t do this right away, they may not be able to use your ASD results in a criminal trial (section 3 discusses criminal charges below). But a delay in requiring you to blow into an ASD does not affect a Warn or Fail reading on the ASD, which may lead to an immediate roadside prohibition, or IRP (section 2 discusses IRPs below). The police can use your ASD results to issue an IRP or to hold you for further investigation.

The police are trained not to tell you that you have a Charter right, under section 10(b), to call a lawyer before they require you to blow into the ASD. And you don’t have the right to speak to a lawyer before you decide whether to blow or refuse—you have to decide right away whether you will blow. Refusing to blow or to provide a sample suitable for the ASD can lead to an IRP or a criminal charge.

ASD settings account for inaccuracy—the ASD tests for alcohol in your body. The model currently used in BC shows the estimated blood-alcohol concentration figure when the sample has under 60 milligrams in 100 milliliters of blood. It shows ”Warn” for blood-alcohol levels between 60 and 100 milligrams of alcohol in 100 milliliters of blood (the legal range for Warn is 50 to 80). And it shows “Fail” for 100 milligrams or higher (the legal limit for Fail is 80). In other words, the ASD allows more than the legal limits to reduce the risk that inaccurate readings will penalize drivers who are at or near the limits.

The legal limit under the Criminal Code is 80 milligrams, called .08. The legal limit under the BC Motor Vehicle Act is 50 milligrams, called .05. But if the ASD shows a blood-alcohol concentration below 60 (rather than 50), the police will probably let you leave. If the ASD shows Warn, the police will probably give you an IRP. If the ASD shows Fail, the police may give you an IRP. Or they demand you take an evidentiary breathalyzer test as part of a criminal investigation.

b. Take an evidentiary breathalyzer test
An evidentiary breathalyzer is an instrument that measures the alcohol in your breath to see if you have more than the legal limit of .08. In Canadian law, it is called an Approved Instrument. The next page explains how it works.

The police may demand you take an evidentiary breathalyzer test using an Approved Instrument only if they have reasonable and probable grounds to believe that you are:

  • operating a vehicle, or have care or control of it, while your ability is impaired by alcohol, or
  • committing, or have committed in the previous 3 hours, the offence of alcohol impaired driving.

This means the police must have good reason to believe your ability to drive is impaired by alcohol. The police may use a Fail on the ASD to form reasonable and probable grounds to demand an evidentiary breathalyzer test. If the police make this demand, you must:

  • go with the police to where the Approved Instrument is located (usually, the local police station), and
  • give breath samples (at least two for legally valid tests) so your blood-alcohol level can be analyzed.

Because you are legally held, or detained, the police must tell you of your right to a lawyer—and other Charter rights—before you provide breath samples. They must also give you a chance to contact a lawyer you choose—a private lawyer or a Legal Aid Duty Counsel—before you give breath samples. The police must stop trying to get samples or other evidence from you until you have had the chance to talk with a lawyer in private. For more on Charter rights, check scripts 200 and 230.

If you cannot give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner or designated police officer take samples of your blood for analysis. You have the right to speak to a lawyer before giving a blood sample.

If you are unconscious, you can’t agree to give a sample. So the police must get a warrant to take samples, which they can get by phoning a justice of the peace.

Things you don’t have to do and should probably never do
You don’t have to tell the police whether you drank or how much you drank. You should not discuss with the police what you were doing before they stopped you. You should not speak to the police about your case. Later, at your trial, the court cannot use your refusal to speak with the police as evidence against you. You have a right to be silent.

Summary of what you must do
If the police demand it, you must:

  1. blow into an ASD.
  2. go with the police and take an evidentiary breathalyzer test.

You must do these things unless you have a reasonable excuse not to. If you refuse to do them, you are committing an offence.

What is a reasonable excuse to refuse to blow into an ASD, or give breath or blood samples?
Generally, it is better to genuinely try to provide proper breath samples if the police demand you do so. You have a legal duty to make genuine attempts to provide suitable breath samples. And making genuine attempts to blow that do not work is not an offence. Courts are strict about what a reasonable excuse is. For example, you may have a reasonable excuse to refuse an evidentiary breathalyzer demand if the police don’t let you speak privately to a lawyer first. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or exercise, those rights and speak to a lawyer. The legal issues are complicated and the best suggestion is this: if the police demand you take a breathalyzer test, talk to a lawyer before doing so. Then, follow the lawyer’s advice.

How does an Approved Instrument (an evidentiary breathalyzer) work?
The Approved Instrument most commonly used in BC is an evidentiary breathalyzer. The procedures for using Approved Instruments are designed to obtain scientifically and legally valid breath tests. Approved Instruments used in Canada test themselves before and after each breath test. They produce a printout of the estimated blood alcohol concentration to be used as evidence in court. In BC, Approved Instruments are usually located only in designated rooms in police stations.

An Approved Instrument captures a tiny bit of breath toward the end of the blowing sequence to measure the concentration of alcohol in your breath. Alcohol in the breath sample condenses on a small metal surface. The alcohol generates an electrical current, which a computer in the breathalyzer measures. The computer calculates an estimated blood-alcohol concentration based on the estimated breath-alcohol concentration. It reports the results in milligrams per 100 milliliters. If you have over 80 milligrams (called “over .08”) you are legally too drunk to drive, and can be convicted of a criminal offence.

The technician who operates the Approved Instrument will ask you to breathe deeply into a plastic mouthpiece connected to the breath tube attached to the side of the instrument. It can take several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. When the test is finished, a police officer will give you a Certificate of Qualified Technician Who Took Breath Samples, describing the test results. Keep this document in its original condition. Don’t write on it or damage it. Just give it to your lawyer.

2. What can happen under BC law if you drink and drive?

a. An Immediate Roadside Prohibition (IRP)
You may be prohibited from driving and lose your vehicle immediately—under section 215 of the BC Motor Vehicle Act (available at www.bclaws.ca). This can happen if you blow into an ASD and it shows a prohibited level of alcohol in your breath (a Warn or Fail, shown in the table below). In that case, the police will issue an IRP.

How long do you lose your license and vehicle under an IRP—it depends on the ASD reading, as this table shows. If you are in the Warn range, then it will depend on your driving record, as the table also shows. You must also pay penalties and fees and participate in the Responsible Driver Program course and Ignition Interlock Program.

   If your blood alcohol concentration (BAC) is

   This is what happens

   0.05 to 0.08 (a Warn) – 1st offence (although the Warn range is .05 to .08, the ASD is set to give a Warn only from .06 to .10. Under .06, the ASD will show the numeric value. So if the ASD shows .055, the police should not issue an IRP—see section 1(a) for more on this.)

  • 3-day driving prohibition
  • 3-day impoundment of vehicle
  • Impound and towing fees about $150
  • $200 penalty
  • $250 license reinstatement fee

   0.05 to 0.08 (a Warn) – 2nd offense, within 5 years

  • 7-day driving prohibition
  • 7-day impoundment of vehicle
  • Impound and towing fees about $230
  • $300 penalty
  • $250 license reinstatement fee

   0.05 to 0.08 (a Warn) – 3rd offence, within 5 years

  • 30-day driving prohibition
  • 30-day impoundment of vehicle
  • Impound and towing fees about $680
  • $400 penalty
  • $250 license reinstatement fee
  • Responsible Driver Program (about $880 plus tax)
  • Ignition interlock program (about $1730)

   Over 0.08 (a Fail) or refusal, or fail to provide a breath sample (although a Fail starts at over .08, the ASD is set to give a Fail only at .10 and higher - see section 1(a) for more on this).

  • 90-day driving prohibition
  • 30-day impoundment of vehicle
  • Impound and towing fees about $700
  • $500 penalty
  • $250 license reinstatement fee
  • Responsible Driver Program (about $880 plus tax)
  • Ignition Interlock Program (about $1730)


An ignition interlock device requires drivers to provide a breath sample before they can start the vehicle. It also requires them to periodically give more breath samples during longer trips (about 10 to 12 samples a day). The BC government estimates costs to a driver that include fees to enroll in the program, install the device in their vehicle, have monthly monitoring, and remove the device from their vehicle.

Process the police must follow to issue an IRP—the police must require you to provide a breath sample by blowing into an ASD. If you refuse to blow or do not provide a sample that is suitable for the ASD, the officer must issue a 90-day IRP, the same as if you blew and showed a Fail. If the ASD shows a Warn, the officer must review your driving record and issue the appropriate IRP, as the table above shows. If the ASD shows a Fail, the officer must issue a 90-day IRP. When you blow, the officer must tell you that you have a right to blow again into a different ASD. You get the benefit of the lower of the 2 readings and the police have to tell you this.

The officer must make a sworn report (a report that they swear is true) to the Superintendent for every IRP they issue. They also have to submit a Certificate of Qualified ASD Calibrator showing when the ASD was last calibrated (checked for accuracy), when the calibration expires, and when the ASD is next due for annual service.

Review process to contest an IRP—if the police give you an IRP, you can apply for a review by going to ICBC Driver Services and paying the required fee within 7 days of when the police give you the Notice of Prohibition. The review hearing is held before an adjudicator in the Office of the Superintendent of Motor Vehicles. This office is also called the OSMV and RoadSafetyBC.

You should see a lawyer before applying for a review. Many defences to IRPs are not written in the Motor Vehicle Act or described in ICBC or RoadSafetyBC documents.

The Driver Services Application for Review allows a review in any of the following cases:

  • You were not the driver or did not have care or control of the vehicle.
  • The police did not give you a breath test but you asked for one.
  • The police didn’t tell you of your right to a second test on an ASD.
  • You asked for a second test but the police didn’t do one.
  • The police didn’t use a different ASD to do the second test.
  • The IRP was not based on the lowest reading.
  • The ASD test results were not reliable.
  • The ASD did not register a warn reading.
  • The ASD registered a warn, but your blood alcohol content was less than 0.05.
  • The ASD did not register a fail reading.
  • The ASD registered a fail, but your blood alcohol content was less than 0.08.
  • Your 7- or 30-day prohibition should be reduced because you did not have the required number of previous IRPs to justify it.
  • You did not refuse or fail to comply with a demand to provide a breath sample, or you had a reasonable excuse for refusing or failing to comply with a demand.

For 3- and 7-day IRPs, only written reviews are available. For 30- and 90-day IRPs, you can choose a written or an oral review. It costs $100 for a written review and $200 for an oral review. You cannot drive while you wait for the review because the driving prohibition is in place then.

All IRPs are listed on your driving record unless they are revoked (cancelled) on review. Driving prohibitions are not removed from your driving record after 5 years. It is very important to quickly investigate the steps you can take to challenge your IRP so that you can meet the 7-day deadline to file for a review. Over 20% of IRPs are revoked on review.

An IRP is not a criminal conviction—it does not give you a criminal record. But you could be charged with a criminal offence from the same police investigation. An IRP goes on your driving record, as do tickets, other driving prohibitions, and other driving offences. ICBC keeps a record of your entire driving history. But it issues only a 5-year driving record. You can get a copy of it, called a driver’s abstract, from ICBC.

If you are charged with a criminal driving offence, or a serious offence under the Motor Vehicle Act, ICBC will give your entire driving history to the police or prosecutor. And Criminal Code convictions remain on your driving record even if you get a pardon.&

Effect of IRP on travel to the United States—although an IRP is not a criminal conviction, US border officials could see it as evidence of discreditable conduct. And they can refuse entry to the US to foreigners without any reason. But there are no reported cases of a person being refused entry to the US only because of an IRP.

b. 24-hour driving prohibition and vehicle impoundment
Instead of issuing an IRP, police can prohibit you from driving for 24 hours and impound your vehicle if they have reasonable and probable grounds to believe your ability to operate a vehicle is affected by alcohol, drugs, or both. They do not have to test your blood-alcohol level. If you disagree, you can ask for a breath test on an ASD. But police can use the ASD results to issue an IRP or to hold you for a criminal investigation.

This prohibition goes on your driving record. You cannot appeal the impoundment. But you can ask for a review to have the driving prohibition removed from your driving record in 2 cases: if the police failed to do a breath test when you asked or you were not the driver or did not have care or control of the vehicle. You have 7 days from the prohibition to apply for the review. The Superintendent cannot review a 24-hour prohibition for drug impairment. The only possible review of that is by a petition to BC Supreme Court.

24-hour driving prohibition is not a criminal conviction—it does not give you a criminal record. But you could be charged with a criminal offence from the same police investigation. A 24-hour prohibition goes on your driving record, as do tickets, other driving prohibitions, and other driving offences. ICBC keeps a record of your entire driving history. But it issues only a 5-year driving record. You can get a copy of it, called a driver’s abstract, from ICBC.

If you are charged with a criminal driving offence, or a serious offence under the Motor Vehicle Act, ICBC will give your entire driving history to the police or prosecutor. And Criminal Code convictions remain on your driving record even if you get a pardon.

Effect of 24-hour driving prohibition on travel to the United States—although a 24-hour prohibition is not a criminal conviction, US border officials could see it as evidence of discreditable conduct. And they can refuse entry to the US to foreigners without any reason. But there are no reported cases of a person being refused entry to the US only because of a 24-hour driving prohibition.

c. Different rules for new drivers
In BC’s graduated licensing program, new drivers (both Learners and Novices) get a 12-hour suspension if a breath test with an ASD shows that they have any alcohol in their body—or if they refuse to blow. They also have to start their stage (12-month L or 24-month N) over again. There is no review of this suspension. And if they are over 0.05, they face the same, more serious results as other drivers, not just a 12-hour suspension. Plus they must start their stage over again.

d. Responsible Driver Program course and Ignition Interlock Program referrals
The BC government refers drivers to these 2 programs if any of the following 3 situations apply to them (these are separate from the IRP requirements for the 2 programs—see the table in section 2(a) above):

  • They have a criminal conviction for drinking and driving—see section 3 below, on the Criminal Code.
  • They have had three 24-hour roadside suspensions in 5 years—see section 2(b) above.
  • They have received a 90-day Administrative Driving Prohibition (ADP)—see section 3 below, on the Criminal Code.

e. Higher insurance costs
Prohibitions and convictions under the BC Motor Vehicle Act mean you have much higher vehicle insurance costs. The website of the Insurance Corporation of BC (ICBC) has more on this at www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx

3. What can happen under the Canadian Criminal Code if you drink and drive?

If the police do not issue an IRP under the BC Motor Vehicle Act, they may charge you with any of the following 3 serious criminal charges under the Criminal Code of Canada (available at http://laws-lois.justice.gc.ca/eng):

  • impaired driving (caused by alcohol or drugs—both legal prescription drugs and illegal ones).
  • driving with a blood-alcohol concentration over 80 milligrams in 100 milliliters of your blood (called “over .08”).
  • failing or refusing to provide breath or blood samples on demand (called “refusal” or “refusing to blow”).

These charges apply if you’re driving a car, boat, plane, or other motor vehicle or vessel. They can apply even if you weren’t driving and didn’t move the vehicle—as long as you had care or control of it. Care or control of a vehicle means you were in the driver’s seat and had access to the ignition key, even if you were parked.

If your test results are over .08 or you refuse to blow
Criminal charges—if your results are over .08, you will normally be charged under the Criminal Code with over .08. If you fail to give a breath or blood sample, you will be charged with refusing to blow. In either case, you will also normally be charged with impaired driving—a criminal offence.

Two driving prohibitions—the investigating police officer will issue you:

  • an immediate 24-hour driving prohibition. The officer may also impound your vehicle.
  • a 90-day Administrative Driving Prohibition (ADP). This driving prohibition starts 21 days after the police give you a copy of the Notice of Prohibition. The ADP is separate from any Criminal Code penalties and procedure. The ADP Notice of Prohibition is your temporary license until the ADP starts—21 days after the Notice is served on you. You have 7 days to ask for a review of an ADP, by applying for a review at ICBC Driver Services. An oral review costs $200 and a written review costs $100. An adjudicator at the Office of the Superintendent of Motor Vehicles hears your review and decides whether to confirm or cancel the ADP.

There are many technical defences to ADPs. As well, the Application for Review says you can apply for a review if you:

  • were not operating or did not have care or control of a motor vehicle,
  • did not have a blood alcohol level over .08 within 3 hours of driving,
  • did not fail or refuse to provide a breath sample, or
  • had a reasonable excuse for failing to comply with a demand for a breath or blood alcohol test.

If you apply for a review of the ADP, the driving prohibition doesn’t start until the review decision is made. But most decisions are made before the 21-day waiting period ends.

What happens in court?
If you are charged with any of the 3 Criminal Code offences, you or your agent will have to go to court. There are legal defences to the 3 charges, but they are very technical and you need legal advice. You should get at least some initial advice from a lawyer, even if you decide not to have one in court.

The prosecutor must prove beyond a reasonable doubt that you committed the offence. For impaireddriving, the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk.

For over .08, the prosecutor must prove your blood-alcohol concentration was over 80 milligrams. The prosecutor must show that the evidence of your blood-alcohol concentration was legally obtained. If you want to argue that your Charter rights were violated, you must prove it to the court.

For failing to blow, the prosecutor must prove that you failed to give samples—without a reasonable excuse.

The prosecutor normally calls as witnesses the police officer who stopped you, and any other people who saw you. The witnesses would tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include bad driving, the smell of liquor on the breath or body, bloodshot eyes, poor balance, slurred speech, flushed face, and any other abnormal behaviour.

You have the right to testify (tell the court your side) and you may want to, if you can explain what the witnesses said and raise a reasonable doubt whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. Whether to testify is a decision you normally make with your lawyer.

What are the penalties under the Criminal Code?
For a first offence of over.08, impaired driving, or refusing to blow, the mandatory minimum sentence is a $1000 fine and a driving prohibition between 1 and 3 years. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or an accident. This minimum sentence means you get a criminal record. A judge cannot give you a discharge.

Previous drinking and driving convictions mean higher penalties—usually at least 30 days in jail for a second offence, and at least 120 days in jail for each offence after that. Plus, in BC, driving prohibitions are longer: between 3 and 5 years for a second conviction and a lifetime prohibition for a third or later conviction. If you have an accident, you may be personally responsible for all the costs ICBC pays. And if you kill or injure someone by drinking and driving, you risk being sued for a lot of money and your insurance company will not cover you. The penalty for killing someone while impaired or over .08 is always a jail term. It’s the same for refusing to blow if it was reasonable to assume that the driving caused death or bodily harm. 

Convictions for criminal driving offences stay on your driving record forever, even if you eventually get a pardon for the offence. ADP driving prohibitions remain on your driving record unless the prohibition is revoked when you apply for review.

Convictions under the Criminal Code also mean you have much higher vehicle insurance costs. The website of the Insurance Corporation of BC (ICBC) has more on this at www.icbc.com/driver-licensing/tickets/Pages/Driver-Risk-Premium.aspx. And you may be refused entry to the US.

4. If you are facing a drinking and driving case

Drinking and driving law is one of the most complex areas of the law because the cases involve law, science, alcohol-testing equipment, and public policy. More people are found not guilty of drinking and driving offences in Canada than of any other type of criminal charges. This means that more innocent people are charged with drinking and driving offences than with other offences.

The police and prosecution must follow demanding procedures. Police officers have extensive training in doing drinking and driving investigations. If they do not follow the procedure correctly or if they violate your rights, you may be not guilty.

All driving prohibitions in BC are 24-hours-a-day until they expire. You cannot get a driver’s license only for work. You cannot get a license that will let you drive for any purpose if you are prohibited from driving due to a drinking and driving offence. The ignition interlock requirement after the prohibition ends restricts you from driving any vehicle that doesn’t have a functioning interlock installed. 

You should use your right to contact a lawyer and get legal advice right away if you have a drinking and driving case. Legal advice is crucial in these cases.

More information from the BC government

[updated July 2014]


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