I have a question and after reading some of your articles, you may be the one to clarify this for me. My son, who is a novice driver in GLP of BC, was in an accident here on Vancouver Island. He was the only one involved, going into the ditch but sustained a large 2" gash on his chin, right down to the bone.
As no one was around, he went about 3/4 mile down the road to his friends place to get cleaned up, and yes....had a couple of beers. Actually, I would probably do the same thing.
After about 3/4 hour, his friends drove him back to his truck. The police were there at that point....which is fine. What we can't understand is that, given the time line, the officer gave my son a 24 hour suspension because she smelled beer on his breath!
Of course she did, and my son didn't hide the fact that he just had a couple of beers while getting cleaned up.
That doesn't make sense to us...but here is my more important question. Because my son is a novice driver, was the officer not required to do a roadside test to confirm alcohol in his system and then give him a 12 hour suspension as in section 90.3 of the motor vehicle act?
She gave him a 24 hour suspension based on "reasonable and probable grounds" (which were wrong in the first place) and in having those suspicions, REQUIRED to give a roadside test because of the novice driver status. This is my understanding anyways.
According to Office of the Superintendant of Motor Vehicles website novice drivers will receive a 12-hour immediate roadside Licence Suspension (24-hour for drugs) if alcohol is suspected to be in the drivers system.
In the motor vehicle act, 12 hour suspensions fall under section 90.3 where it is stated that an ASD MUST be used.....the suspension cannot be given by admission or observation alone as is the case with a 24 hour prohibition.
So, you can see where we are a little confused and that is why I'm putting this to you. I know 24 hour suspensions are hard to get "repealed", but we are going to. First of all, there is NO basis for the 24 hours suspension, and the proper procedure with a novice driver was not followed..and if found to be alcohol involved, the proper suspension given.
Let's take a look at the link to the OSMV that you provided. It says that drivers in the GLP with a BAC greater than zero but less than 50 mg% may receive a 12 hour suspension. You are correct, this must be determined through the use of an ASD.
However, if you read down to the last paragraph in that section, it says that GLP drivers who blow a warn (60 to 99 mg%) or a fail (100 mg% +) are subject to regular impaired sanctions. These may include a 24 hour suspension, an Immediate Roadside Prohibition or criminal charges.
A 24 hour suspension may be issued without the use of an ASD if the investigating officer has sufficient grounds to justify it. The driver receiving the suspension has the recourse of demanding a breath test to show that they are under 50 mg% to have that suspension terminated. The driver is advised of this fact as part of the demand that the officer makes to invoke the suspension.
The suspension may be reviewed, and you will find the necessary instructions for that on the back of the blue copy of the suspension issued to your son.
I am curious about the story you relate though. A 2" gash down to the bone on the chin is going to bleed heavily and require stitches to treat. From my own personal point of view, I would be much more concerned about having that treated than I would be to sit down and have a couple of beer while I decided what to do. My suspicious police officer's mind would tend to think that even if it were not the case, these 2 beer were consumed post collision to try and hide the fact that the driver was under the influence already at the time of the collision.
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Thank you so much for the quick reply sir!
This accident happened on a "deserted" stretch of road, with no help for my son in the immediate area. He knew he had help 10 or so minutes away at a friends house and so that is where he went. The police did call an ambulance, but the ambulance was rerouted to another call, so medical help was not even supplied for him at that point. Actually, all that was done for him was that he was dropped off at the hospital AFTER all the "paperwork" was done. My son had just recieved his license back 6 days previous (due to a speed infraction, not drinking) and was being VERY careful about keeping it, so drinking and driving was not even close to being a part of his actions at this point or any time of his driving! Believe me, I've headed out at 2 am to go pick him up, many times! :D
As far as "requesting" a roadside test, police are not required to mention the fact that you can request one IF you are getting a suspension (this comes from a letter from the OSMV), this is something that you are "supposed" to know...or read on the back of the ticket AFTER you get it (which is kind of late). If drinking and driving are not something you think of doing, why bother to know that type of information anyways? I agree, this is important information that the officer should give, but my son was not supplied with that information at the scene. But, to me it would have been an inaccurate reading anyways....because of the time and events taking place after the time of the accident.
Also, in reading about GLP drivers and alcohol, if an officer suspects drinking and driving....they MUST use a ASD to provide evidence to give the manditory 12 hour suspension as stated in 90.3 of the motor vehicle act or am I not reading this correctly? From my research, a GLP driver MUST be given a roadside test to provide evidence! From that, they will recieve either a 12 hour suspension OR regular impaired driving sanctions IF they blow a warning or fail. GLP drivers WILL recieve a 12 hour suspension if alcohol is in there system at the time of driving and there is no appeal available, and to get a 12 hour suspension, a roadside test MUST be given , as stated in 90.3. I agree, after this is done and the levels meet the required levels, further impaired driving sanctions can be applied, but only after this process.
I hope you are not tired of my questions...because , here's another one!
What is reasonable and probable grounds for recieving a 24 hour suspension? I've been trying to get a definition of this, but can find it no where. I know that this can be widely varied and hard to put down on paper, but wouldn't more "probable grounds" be needed other than the smell of beer on the breath, and hour AFTER the accident? The officer put down as "smelling beer on the breath" as the reason for the 24 hour suspension. Is that enough...given the timeline of this event?
Lastly, an event that gives the demeanor of the officer involved that night. Remember, we have 2 RCMP officers in our family and my respect to RCMP/police is of the most!!!!!! Maybe that's why this whole event really upsets me. On the way to the hospital, the member threatened my son saying "...and don't you dare dispute this or I'll add more..." (what could have been added, we are don't know). But, this attitude does not fair well in "unbias" application of "policing". Keep in mind, my son is actually quite shy....and this member had a young boy with her as a ride along that night. So, "mouthing" off at the officer did not happen....
Thanks in advance!
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It's been a long time, but as best I can recall the demand for a 24 hour suspension reads something like this:
I have reasonable and probable grounds to believe that your ability to operate a motor vehicle is affected by alcohol (or a drug). I therefore direct you to surrender your driver's license. You are now prohibited from driving a motor vehicle for a period of 24 hours from this time and date. If you do not accept this prohibition, you have the right to request a breathalyzer test. In the event that the result of that test is less than 50 milligrams of alcohol in 100 milliliters of blood, the prohibition from driving is terminated.
Of course, if I were suspending for drug use, there was no point in adding the advice about requesting breath testing. Breath tests don't work for drugs other than alcohol.
I also added a warning of my own in these circumstances and it was that the person should carefully consider this demand because if it turned out that the breath test showed a higher than expected reading this would allow me to issue an Administrative Driving Prohibition or give me grounds to do a criminal impaired driving investigation.
The 12 hour suspension for GLP drivers and the Immediate Roadside Prohibition are the only circumstances where a driver must be tested with an ASD. The 24 hour suspension and criminal impaired driving charges can be invoked with no ASD test and be upheld or result in a conviction. The latter would apply to any driver.
Alcohol use results in typical symptoms that are observable at roadside. Bloodshot, watery eyes, flushed face, odour on breath, horizontal gaze nystagmus, balance difficulties and loss of co-ordination are typical. Driving evidence, and a collision would be driving evidence, also goes to strengthen reasonable and probable grounds. A driver's admission of alcohol consumption can be included as well. In totality, if you presented the circumstances to a reasonable person and they came to the conclusion that the driver was affected by alcohol, then this would be reasonable and probable grounds. Remember, staggering around and falling down is drunk. Changes from the normal before being considered drunk is what is meant by affected.
When you say "The officer put down as "smelling beer on the breath" as the reason for the 24 hour suspension." how do you know this?
I don't know why officers make comments like that. Even saying something along the lines of "You received this, but be aware that in the circumstances you could have received this heavier penalty or even multiple penalties." could be seen as a threat. I suspect that in their own eyes, they have done the driver a favour by being lenient and they want the driver to appreciate that and not take advantage of it. This was something I thought about at the roadside from time to time. Often I would have been able to fill a ticket, but I would choose one good charge and let the rest slide because of the story I heard at the roadside. Strangely enough, these driver's would appear in traffic court frequently and the trial would show me that I probably should have written what I saw. However, that was the choice that I made, and I would have to live with it.
The only additional observation that I have is, if your son had the time to go and sit through drinking 2 beer, he can hardly complain about the police not being in a rush to get medical attention for him.
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Please, don't think of me as argumentative, but just to clarify again on a couple of points that you have made.
The comment of "smelling beer on the breath, so I gave a 24 hour suspension" is right in her report, which we have a copy of. This, to me, is NOT reasonable and probable grounds as there was a time space between the incident and the police dealing with my son where he had a couple of beer while getting cleaned up and calmed down.
Would not "Don't you dare dispute this, or I will add more...." sound so much more like a threat than "You received this, but be aware that in the circumstances you could have received this heavier penalty or even multiple penalties."? The statement you made sound much more like a word of "advice" than a threat and I've seen my brother-in-law do exactly that. And putting it your way, they HAVE done the driver a favor and the driver, if smart, should be taken as such.
My son did NOT complain about the lack of medical attention provided for him, but it DOES indicate the lack of professionalism and attitude this particular officer had , on this night anyways. Along with the "threatening" of more charges (for doing something that is written right on the back of the ticket) to tearing a strip out of the driver about having his dog IN the truck...leads us to believe that there was more than just "police" work involved.
I agree that further "normal" driver sanctions can and will apply to the novice/any driver if alcohol levels are high enough. Further said sanctions include the 24 hour suspension, but how was this officer to know if those alcohol levels were even at that limit? She did not go through the process required with a novice driver in the GLProgram as she must (if she is suspicious of alcohol involvement)as stated by the OSMV. In the case of a novice driver, the 24 hour suspension is AFTER testing is done for a 12 hour suspension (which is manditory for novice drivers) and is applied IF the alcohol levels require it to be.
If you think of it, there is as more "evidence" to show that no alcohol was involved until AFTER the accident, (the timeline and the admission of drinking while getting help are two major points) than there is of alcohol involved BEFORE the accident (smelling beer on the breath, so I gave a 24 hour suspension). There is a lot of room in this whole senario for the driver to be right in this case, and the officer wrong......what IF the driver is completely "innocent" in regards to this 24 hour suspension? What IF he just happened to have a couple of beer while getting help. What recourse does he have to "prove" himself innocent and remove this from his record. The cards are stacked against an innocent driver, just because an officer ...and yes...again... "smelling beer on the breath, so I gave a 24 hour suspension". Maybe this is why she threatened the driver not to dispute it.....
Thank you so much for your time!
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I don't think that of your posts. They have been more detailed than most and that does make it easier to answer.
Don't get hung up on using an ASD on a GLP driver. It IS required to hand out a 12 hour suspension, but it is NOT required to hand out a 24 hour suspension or proceed with a criminal investigation as long as the officer has reasonable and probable grounds. An officer does not need to conduct a 12 hour suspension inquiry before moving on to something more serious.
The check on the officer's decision is the driver requesting a breath test in the case of the 24 hours suspension and the actual breath tests in the criminal investigation.
You have one point from the officer's report, the odour of liquor, and I suspect the collision is also mentioned there. I don't know if you want to reveal any other details here or not, but I'm wondering if there are any.
The driver's recourse is always the review of the suspension with the Superintendent. If he feels that the officer's grounds were not sufficient then he can direct that it not form part of your son's driving record. You may wish to take advantage of Lawyer Referral for more information on how to prepare for a review.
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The reason he went into the ditch was his cell phone rang, and he looked at it. You have to know the road, which is very narrow and winding, with soft shoulders. His tire caught the soft stuff and pulled him into the ditch. He admitted right away to this and it is stated in the police report. So, there IS another reason for the accident to happen...and admitted by the driver.
We believe that this officer had a issue with my son even before he came back to the accident. We found out through a source at the SPCA (where Justin's dog ended up for the night other than back home, again for no apparent reason) that this officer is a real dog lover and helps with the SPCA now and then..good friends (the source) with the people there. That's fine....we need more people like that! Even the worker at the SPCA said he had issues with Justin because of the information given to him by this police officer that night (all based on assumption and totally wrong!). That is, BEFORE he listened to the telephone answering machine where there were about 8-10 messages from Justin to either check up on his dog or wanting to pick him up. Justin was at the SPCA the next morning before they opened...waiting for his dog. Then all he said, oh.."you do love your dog, I had the wrong impression". The officer let Justin know that she was "ticked" (to put it politely) about the dog being in the accident and that Justin left him at the scene. Justin did not just "leave" the dog at the scene. As with humans, dogs CAN panic or get scare in an event such as this, and when they do , they behave differently. Justin tried to call him and get him to come along with him to get his help. (the dog is an 80lb lab, so he can't really be carried). The dog just wanted to stay with the vehicle..the only thing he "knew" in the area. So, Justin left him there by the truck. This still bothers my son to this day, but it was a choice of leaving the dog, or getting some help. This was one of the main points of the officers "wrath" on the way into the hospital....again, in my mind....very unprofessional and uncalled for as the exact situation was NOT understood or not even based on facts by the officer. This again, leads me to believe that this officer did not "work" this incident as it normally should have been. Emotions got in the way, and to me blows this whole event out of proportion!
You see, there are many circumstances that lend itself to this novice driver being truthful and the officer getting the wrong impression before facts were found out. Justin came back to the scene, he did not just leave his dog without a good reason, he had beer between the accident and talking to the police (which, by the way...is NOT illegal and not basis for a 24 hour suspension), and admitting right away to looking at his cell phone as the cause of going into the ditch. But, it's his word against the officers I guess, and he has no recourse, other than the Supreme Court which is a very good option at this point.
Please , believe me....our whole family has respect for the police, especially the RCMP!!! If this police officer had a bad day....a driver should not suffer in having something on his driving record because of it. But our respect was tainted by this overall handling of this situation and makes it a hard pill to swallow!
This is a good dialogue ..... but it's hard for me to see it from your point of view (police officer) and for you to see it from my point of view. I completely understand your angle of discussion......it was your career...your job. But, from our angle, there is a great possibility that this driver was not "worthy" of a 24 hour suspension.
Thank you sir!
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Just a quick update for you, on the situation with my son and the event we have talked about.
Had a great meeting with the supervisor of the Detachment on Saturday, a meeting that we felt the officer wanted to do as much as ourselves. The Cpl actually drove to our home, saying that we would get less distractions and interruptions that way, which made sense. It was a relaxing, non-confrontational meeting between my son, myself and the Cpl.
He cancelled the "driving without due care and attention" violation based on a couple of reasons. One, the Cpl that my son dealt with at the scene was now transfererd and the costs of bringing her back for the court dates etc. could not be justified based on the evidence in her report. Secondly, he could understand our point, that the member was having a "bad day" and, although the violation was technically valid, the new "distracted driving" legislation/law would have been a much more appropriate ticket. Thirdly, he appreciated the respectful and sometimes insistent manner in which we applied ourselves to this incident and opposition of it during the past 7 months. He could not comment anymore on the 24 hour prohibition, as it has gone to the OSMV and was out of his hands, something we will have to deal with in the court system. That is fine with us, such is the way it is!
Something people should keep this in mind. IF you have a -------VALID------- issue with a violation or notice given to you by the police, deal with it. Don't just complain about getting a ticket because you deserve it, but deal with it if you think that there was an "injustice" done. But deal with it in a mature and respectful manner. Police officers are trained to be suspicious (sometimes this keeps them alive), deal with stuff normal people wouldn't want to deal with, are busy....and .....human. Don't be afraid to either deal with the officer directly through detachment channels, or deal with their supervisor and them. Do it respectfully and with as much knowledge of what you are "discussing". And, DON'T make it confrontational...that accomplishes nothing and should be left to being in court. IF the detachment or officer are not willing, then continue your dispute within the court system.
I had a lawyer advise me not to meet with the officer/supervisor on this. His words were, "have you ever had anything good come out of talking with the police?". Well, maybe I'm a bit old school I guess, and asked for the meeting anyways. Talking can accomplish a lot. In this case, it proved to be a good thing to do, both for the police and ourselves. For one thing, I don't think the police really mind "talking" about it IF it is a valid approach. The officer can explain their approach, and in this case, they looked at our approach and actualy took it into account. I guess you could say it's a type of "court", but done personally with the detachment. Nothing wrong with that in my mind.
I can't say this enough, keep it respectful and non-confrontational! Confrontation and lack of respect accomplish nothing. And your reasoning has to be valid, not just "whining" that you got a ticket!
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We have gone through the appeal process for this suspension......and have recieved a letter back from the adjudicator giving us the reason that he could not side with us on the appeal. Here are the 2 reasons that he gives for his decision:
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1)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.
2) 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.
Conclusion:
I cannot revoke your 24-hour prohibition as required under s. 215.3 of the Act. This 24-hour prohibition will remain on your record.
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I'll bet they can use this reasoning on almost every appeal. All the more reason a police officer should offer the knowledge that a person CAN request a test, especially if NOT requesting it can be used against you like this. Now, this information will go to the OSMV, where a suspension will kick in for my son. But, I believe that the only place we can "fight" this further is via the supreme court, am I right?
You know, it's pretty well "sown" up by the OSMV if all they have to do is make sure that, and I quote from section 215.3:
a) the person on whom the notice of driving prohibition was served had the right to request and requested that the peace officer administer a test to indicate his or her blood alcohol level but the peace officer failed to provide the person with the opportunity to undergo the test.
I see a lot of "having to prove innocence" in this case, as opposed to what it is supposed to be... "innocent until proven guilty".
I will now stop the ranting/discussion from my end as web space and your time is of value. Your view on this matter, from the "other" side has been invaluable to me and tempers my thinking...slows it down and allows me to not let MY emotions become involved! :D
And you know...keep up your good work on the drivesmartbc.ca site.
Thank you!
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There is some case law here on the site of various reviews by the court, and you are correct, it is the Supreme Court that does the reviewing. The judge will look at the decision made by the adjudicator and if he or she decides it is not a reasonable one based on the circumstances will direct the adjudicator to reconsider it.
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hehehe, just me again. In more researching of the motor vehicle act of BC, I have a couple of section I would like you to take a look at and tell me if my interpretation is correct or not. You do not need to respond if you so wish
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Section that novice drivers under the GLP fall under.
Section 25
(10.1) Without limiting subsection (10), the Lieutenant Governor in Council may, by regulation, impose a condition on a class of driver's licence, or on the drivers' licences of persons who hold a licence to drive a motor vehicle of a specified category, that the holder of the licence must not operate a motor vehicle, or category of motor vehicle, while having alcohol in his or her body.
This section is mentioned as the qualifying conditions for a driver in the section 90.3 (see next)
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90.3 (1) In this section:
"approved screening device" means a device prescribed for the purposes of this section;
"driver" means a driver who holds a driver's licence on which a condition is imposed under section 25 (10.1) and includes any such person having the care or control of a motor vehicle on a highway or industrial road whether or not the motor vehicle is in motion.
(2) A peace officer may, at any time or place on a highway or industrial road if the peace officer has reasonable and probable grounds to believe that a driver has alcohol in his or her body,
(a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road, and
(b) by demand made to that driver, require the driver to promptly provide a sample of breath that, in the opinion of the peace officer, is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling that sample of breath to be taken.
This means , to me, that drivers that fall under 25 (10.1) (novice drivers) must be put through this process IF alcohol is suspected! If not, why the following section??
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No-alcohol restriction for Class 7L, 8L, 7 and 8 licences
30.11 (1) A person who holds a Class 7L, 8L, 7 or 8 licence must not operate a motor vehicle while having alcohol in his or her body.
(2) For the purposes of section 90.3 of the Act, the following devices are prescribed:
(a) the Alcolmeter S-L2;
(b) the Alcotest © 7410 GLC;
(c) the Alcotest © 7410 PA3;
(d) the Alco-Sensor IV D WF;
(e) the Alco-Sensor IV PWF;
(f) the Alco-Sûr;
(g) the Intoxilyzer 400D.
[en. B.C. Reg. 257/98, App. 1, s. 6.]
Which tells me that the novice driver MUST fall under section 90.3 IF alcohol is suspected as it again refers back to section 90.3.
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Timeline as to how I see this event should have been handled in point form:
1) Police suspects a novice driver to have alcohol in system while driving which contravenes section 25(10.1) and section 30.11.
2) Police, following section 30.11(2) must pursue section 90.3 (which refers back to section 25(10.1) and:
...following the OSMV , give an immediate 12 hour suspension which is governed by section 90.3 which demands a roadside test.
3) IF the blood levels dictate, then a 24 hour or whatever normal driver sanctions would apply in addition to their GLP-specific consequences and reviews.
The reason we are so adamant about the roadside test for a novice driver is that if this proceedure was followed as it should, this whole thing about "knowing" you can request a roadside test would not even be in question in this case.
Do I make any sense?
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only as it applies to 90.3, the 12 hour suspension. 30.11 only sets out the test instruments that the officer must use. An instrument other than that listed would not be acceptable.
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