In my last post, I discussed the changes to the BC Motor Vehicle Act that were underway. As expected, the legislation passed. Many of the changes the Government touted as positive have already come into effect, including the left-lane hog aspects of the changes. The Government made a big deal out of announcing this when it happened. But there were also changes slowly implemented that Government hasn't advertised to the public. These are the changes to the drinking and driving legislation.
If you check out BC's Motor Vehicle Act on the BCLaws website, you'll see that Section 215.43 of the legislation has some changes in green typeface, and underlined. These are changes that are coming to the Act that are not in force yet. But they're on the verge of being enacted by regulation. Any day now, the green will disappear and the changes will simply become law. No fanfare. No announcement.
Why is this a problem?
You might be thinking that it isn't a big problem to make these changes. The Government is allowed to enact and impose legislation. It would be too much to ask Government to announce every little change they make. The problem is that the changes aren't little. They're big.
The changes to Section 215.43 pertain to calculating the time that has to be served in an Immediate Roadside Prohibition. As you probably already know, the BC DUI laws say that you can be prohibited for 3, 7, or 30 days for blowing a Warn on a roadside breathalyzer. And if you refuse to blow or Fail the roadside breath test, you will be prohibited for 90 days. The consequences of a DUI are serious. The prohibition commences immediately after it is served to a driver.
Now, any reasonable person would expect that a 90-day prohibition that starts as soon as it's served continues for the next 89 days. The date it is given to you is the first day, and there are 89 after that. That would be fair. That's how the Government was interpreting the law up until these secret changes were made to the law. If you were served your prohibition documents at 11:53 p.m. on May 1, 2015 you got credit for one day of prohibition for the seven minutes until May 2, 2015. But that also meant that if you got your prohibition at 12:01 a.m. on May 1, 2015, you would get credit for the 23 hours and 59 minutes that you couldn't drive.
This matters because the AAA Foundation for Traffic Safety found what is probably already common knowledge: most impaired driving incidents occur between midnight and 3:00 a.m. Then there are the Vancouver early-morning roadblocks to catch people who are still drunk from the night before. And my own experience in defending countless impaired driving cases tells me that the vast majority of people who are stopped are stopped after midnight, not before.
So it only makes sense that the prohibition is counted from the date it is served to the driver. This prevents unfair extra punishment for drunk driving being given to anyone who is pulled over after midnight.
Your 90-Day Prohibition is Longer Than 90 Days
The new change to the law means that the first day of your prohibition doesn't count against the time you have to serve. You are punished for blowing the Fail but your punishment doesn't count. That's what the Government changed in the legislation.
Now, it doesn't matter what time your prohibition is served to you. If you get it at 11:53 p.m. on May 1, 2015 it doesn't start counting until May 2, 2015. If you get it at 12:01 a.m. on May 1, 2015, it doesn't start counting until May 2, 2015. But if you drive after the prohibition is given to you, then you can be charged with driving while prohibited. Yes -- the BC Government changed the DUI laws so that you're punished before you start serving your sentence and you get no credit for "time served." How does that make you feel?
Not great. Terrible, really.
The BC Government changed the law to rely on the day you are served for the sole purpose of punishing you and nothing else. You get no benefit from them calculating the time in this way. The BC Government changed the law for the sole purpose of making your 90-day prohibition last 91 days. Or making your 3-day prohibition last 4 days. For punishing you longer than the law says you are to be punished for.
What if the Federal Government changed the law to say that if you are sentenced by the Court to ten days in jail, the first day you went to jail didn't count? That would be unconstitutional. The law would be struck down.
In fact, the Federal Government did try to change the rules regarding "time served." The law was changed from allowing 2-for-1 credit for time spent in jail before conviction to 1-for-1 credit. This law was challenged as unconstitutional, and the Supreme Court of Canada struck it down. But the BC Government is doing something that is just as sinister when it comes to your driver's license and your rights.
Time Served Doesn't Count in an IRP DUI Case
Because your 90-day prohibition takes place as soon as it is issued to you, time served doesn't count for anything. You don't get the days you are prohibited before a decision is rendered in your appeal counted for double if the IRP is ultimately upheld on review. While your review hearing is taking place, you don't get to drive. You don't benefit from the presumption of innocence. Instead, under the new change to the law you're not only prohibited but some of that time doesn't count for anything at all.
Oh and guess what else? This rule about how the first day doesn't count is also applied to your Vehicle Impound. Your vehicle is impounded for 31 days, not 30 days. You have to pay out-of-pocked for 31 days of storage, not 30. The police took your car for 30 days, but they get to keep it and charge you for 31 days.
The Government Uses Calculation of Time to Their Advantage
There are all sorts of legal rules about calculating time. When it comes to DUI Laws in British Columbia, the Government uses these rules to their advantage. You have seven days to dispute your prohibition. But those seven days include holidays and weekends. Unless you live in the Lower Mainland, there isn't an ICBC open to dispute your prohibition on a Saturday or Sunday. And even then, there are only a few ICBC Driver Licensing Offices open on Saturday. So you'll have to find a way to get to Burnaby, Richmond, Cloverdale, or Surrey. Good luck with that, without your vehicle.
For most people in British Columbia this means that they only have five days to dispute it. Five days when you're probably working full-time, or in school. Five days when you have to figure out how to get there without your car or the ability to drive.
The only time Sunday, or Holidays matter is if your last day to dispute your DUI is on one of those days. Only then can you dispute the prohibition on the following Monday. Saturday raises all sorts of questions. RoadSafetyBC appears to be of the position that if your last day is on a Saturday then you can dispute your prohibition on Monday. But some ICBC agents don't know this, and will turn you away. Some of ICBC's computers won't even allow the review to be booked on a Monday if the last day was a Saturday.
I've even had one client told by RoadSafetyBC that he couldn't book a review on Monday after his last day was Saturday because he could have taken the bus 110 km away to an ICBC that was open on Saturday.
Another way the Government uses calculation of time to their advantage is in rendering decisions. The Motor Vehicle Act requires that a decision be made within 21 days of the date the prohibition was issued. If they can't render a decision within 21 days, the adjudicators are supposed to give you your license back and release your vehicle. But guess what? Adjudicators don't work on the weekend. And RoadSafetyBC thinks it's too much to ask of them to have a decision due on Saturday, Sunday, or a Holiday to you by the end of the day on the Friday before. So your 21 days before you get a decision can stretch to 24 days. Or longer, if your last day for a decision falls on Easter weekend.
This means that the Government is relying on their own rules about calculating time to say that you can be punished for three extra days simply because you got your IRP on the weekend. Plus the day that doesn't count towards your punishment. Only then to have a decision that says you shouldn't have been punished in the first place.
After nearly a month without a license, it seems like a little bit of a hollow victory.
But the Government doesn't seem to care about calculating the time in your DUI case in a way that works to your benefit. The fact that they are sneaking this in without telling anyone about it proves that they don't want people to be too interested in all the awful ways they are trying to take away your rights. Thankfully some lawyers are paying attention.
There are more terrible changes coming down the pipes. And the Government is going to bring them into force and effect slowly and secretly. You'll wake up one day and your rights will be gone. It's been slowly happening in BC for a long time now, and this is just another step in that direction.
But I sleep with one eye open, watching for the Government to make another move. And when they do, I'm ready to defend my clients.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.