A second B.C. Supreme Court ruling against the Superintendent of Motor Vehicles has placed the province’s four-year-old drinking driving law in jeopardy, lawyers said on Friday (Feb. 14).
Sam McLeod, B.C.’s Superintendent of Motor Vehicles, responded “that our laws remain in place and we’ll continue to be tough on those who drink and drive.”
The B.C. Ministry of Justice is reviewing the decision to determine next steps.
B.C. Supreme Court Justice Jane Dardi sent back a roadside prohibition — given to a driver who blew a ‘warn’ on a roadside screening device — to the superintendent’s office for a rehearing, said Vancouver lawyer Kyla Lee, who successfully argued the case. Lee and other lawyers contacted on Friday said the decision imperils the way police deal with drinking drivers and jeopardizes thousands of driver suspensions already handed out.
Lee said in a telephone interview the oral decision in B.C. Supreme Court in Vancouver follows a similar finding by a B.C. Supreme Court justice in Kamloops in September last year. That case was successfully argued by defence lawyer Jeremy Jensen.
In the Kamloops decision, Justice Dev Dley found there “is no presumption that a driver’s ability to drive is affected by alcohol solely on the basis of a ‘warn’ reading.” Blowing a ‘warn’ on a roadside screening device indicates a level of intoxication between 0.05 and 0.08. In that case, Lee Michael Wilson of Kamloops was handed a driving ban after being stopped by police in Coombs on Vancouver Island last September, a ban overturned by Dley. The province appealed and that decision is being heard in the B.C. Court of Appeal next month. While police did not alter the way drivers stopped at roadblocks are handled following the September decision, lawyers said the second ruling should prompt change.
McLeod said in an email B.C.’s immediate roadside suspension laws will stand. “Individuals who drink and drive will be held to account with immediate roadside driving prohibitions, vehicle impoundments and monetary penalties,” he said. “We’ve led the way nationally on tackling drinking and driving, and the results speak for themselves — 143 lives saved and a 51 per cent reduction in alcohol-related motor-vehicle fatalities.”
In the decision, a B.C. Supreme Court justice did not accept the prohibition given to driver Wendy Richardson by the superintendent’s office. Richardson was pulled over at a roadblock and compelled to blow into a screening device, where she registered a ‘warn.’ No other evidence of impairment was given. Lee argued successfully, in the wake of a similar argument by Kamloops lawyer Jensen, that police need to suspect some evidence of impairment before a prohibition can be handed out — that a ‘warn’ reading alone is not enough.
Under the new laws introduced in 2010, the Superintendent of Motor Vehicles argued it can only consider whether the roadside screening device is accurate and cannot consider evidence of impairment — slurring of speech or unsteadiness, for example — in any administrative reviews. But, two B.C. Supreme Court rulings have now sent that back for a rehearing. “There’s tens of thousands of people who could be affected by this,” said Lee, whose firm specializes in the challenges. Jensen said the second decision should force the province to change the way it handles drinking drivers. “There’s going to be big ramifications. It makes the Court of Appeal decision in Wilson very important.”
Micah Rankin, a law professor at Thompson Rivers University, is arguing that appeal in March. He said the issues are whether police require more evidence of impairment beyond drivers blowing a “warn” and whether the Superintendent has the ability to review that evidence under power given him by the Motor Vehicle Act.