CASE LAW - Nguyen v British Columbia (Superintendent of Motor Vehicles)
On January 13, 2015 Van Nhut Nguyen was sentenced for failing to produce his driver's licence. The penalty was a $750 fine and one year term of probation during which he was not allowed to operate a motor vehicle between the hours of 7:00 pm and 6:00 am. It would appear that this is the result of an incident of driving while being prohibited from doing so.
On January 28, 2015 the Superintendent of Motor Vehicles gave Mr. Nguyen notice that he intended to prohibit him from driving for a period of 6 months because it was in the public interest to do so. Mr. Nguyen responded that to do so would impose a significant financial hardship on his family. The Superintendent took this into account and ultimately imposed a prohibition for 3 months. Mr. Nguyen, through counsel, requested the court to reconsider the Superintendent's decision.
Counsel's position was that the prohibition was unreasonable because the Superintendent's decision was arbitrary and unreasonable because he inferred that Nguyen was driving while prohibited from doing so due to the failing to produce driver's licence conviction.
Mr. Justice McEwan dismissed the appeal because the penalty applied was within the Superintendent's guidelines and the Superintendent was not bound to track similar penalties applied by the provincial court.
So we are getting tough on drinking and driving ?????
As I read the information, we have an "N" driver caught on 23 May 2014 drinking and driving.
"N" drivers must have NO liquor in their system.
He gets a 90 day IRP prohibition.
During that 90 days he is caught driving.
I can't determine all the charges he was charged with, but one of the charges was "Failing to Produce his DL" (a catch all that is usually issued along with others, such as "Drive without a DL", and likely "Driving while Prohibited")
Anyway, for failing to produce his DL, he gets a $750 fine and 12 months probation, prohibited from driving 7 PM to 6 AM, from the judge.
This fine and probation is far above any normal penalty for Fail to Produce, so I can only read into this that the judge took into account that he failed to produce because his DL was prohibited as a result of the 90 day IRP.
Failing to produce is really the charge used if one is stopped and they forgot their wallet at home. The driver not producing his/her DL is charged with Fail to Produce and Fail to Have.
Later if the driver can prove that he/she had a DL at the time the Fail to Have is dropped and they pay the Fail to Produce portion. If they can't prove they had a DL the Fail to Produce is Dropped and they are fined for the Fail to have, one or the other.
Thus Fail to Produce is not a major charge,,, normally an $81 fine.
Anyway for whatever reason someone lets this person plead to Fail to Produce instead of the charge that described what really happened, "Driving while Prohibited".
Then RoadSafetyBC reviews his driving record and issues a 6 month total driving prohibition.
He appeals to RoadSafetyBC and they reduce the prohibition (not clear) to a 3 months (? 4 months) prohibition.
Then the driver appeals RoadSafetyBC's reduced prohibition decision to the Supreme Court of BC !!!! because in the reason for judgement RoadSafetyBC states that the driver was driving while prohibited (which he was), which in the driver's view, "he wasn't convicted of". Likely the reason all along why he ageed to plead to Fail to Produce, but with a huge fine, more appropriate for something more severe.
So, RoadSafetyBC gave him a 3 month prohibition and he felt that that was too much ? So much so that he appealed to the Supreme Court of BC. So what, in his view was appropriate ? An appology and a parade in his honor ?
Fortunately the Supreme Court ruled in favor of RoadSafetyBC.
Am I alone in thinking this driver deserved more than what he got originally from the judge ? and had no grounds to appeal the 6 months prohibition from RoadSafetyBC, little lone the appealing the 3 month prohibition to the supreme court?
Do you think this driver has learned anything ?
Yup, sure getting tough on drinking drivers.
What likely happened here is a plea bargain. Crown and defence got together and our novice agreed to plead guilty to failing to produce a driver's licence in exchange for having the prohibited driving charge dropped. That would have carried an automatic driving prohibition for a period of one year. The judge listened to the circumstances and bought it, hence the penalty that resulted.
Someone at RoadSafetyBC caught it and decided that it was in the public interest to do more, although they did not go so far as the conviction would have.
Hopefully Mr. Nguyen learned a lesson here.
I honestly believe that the driving prohibition itself is the reason that many not guilty pleas are entered to a variety of charges. If it was just a fine, most would be paid and life would go on. In our vehicle-centric world loss of the ability to drive often means the loss of a job and significant financial hardship. It's probably easy to apply as a penalty when someone is injured or killed, but when it is just the accused crying in front of the court and only the police are involved in discovering them driving it's easier to accept a smaller sanction.
Plea bargain is exactly what happened
But isn't that the whole reason for the IRP to prohibit a drinking driver for a predetermined length of time with ridged, firm virtually un-appealable penalties ?
Then if someone doesn't comply with the IRP prohibition, we give them a deal ???????
This "deal", (by the judge) I think, sends the wrong message.
I'm disappointed that RoadSafetyBC reduced it's 6 month prohibition.
I am astounded that Mr Nguyen appealed RoadSafetyBC's reduction to 3 months !
And no, I don't think Mr Nguyen learned anything.
I suspect, through a lawyer, Mr Nguyen thought he had "fooled" the system (or made a fool of the system), but hadn't considered the review by RoadSafetyBC.
Then kept appealing.