Q&A - 24 Hour Prohibition for Drug Use
This past year my 18yr old son was stopped and ticketed for having an extra passenger in his vehicle. It was late in the evening and they had been at a party. He was designated driver that evening and had not been drinking or doing drugs. However, the constable that stopped him pointed her flashlight in his eyes and accused him of being on drugs. She decided this in mere seconds of observation.
He protested and offered to be tested, be it breathalizer or blood test, what ever kind of test. He was told there was no roadside test for this. She proceeded to write this accusation on his ticket and impounded the vehicle. Had we known what would follow I would have taken him to have a blood test done immediately when I picked him up that evening.
Later on, he received a letter in the mail advising that "due to his bad driving record" his license was suspended for four months. We sent in letters from the witnesses that were there and friends that were at the party as well as our own protest to this unjust accusation. We waited two months only to receive the same letter again advising him of his four month suspension. It was as if no one even took the time to look at these letters or his statement.
My argument is this is unjust and unfair. My son now has this "drug suspicion" on his driving record and it will be there permanently. If he were guilty, fine, but if not guilty is it fair that he should have to carry such a burden? My son does not do drugs.
I know what you are thinking, "you are his mother of course you believe this". Well it is true. He wants (or I should say wanted) to go into the RCMP once he is of age to apply, he is not likely to take any chances by using drugs. Now this overly enthusiastic constable has tarnished his record and for what ever her reason he now has to live with this.
How can we have this removed from his driving record? How can we prevent other incidents of this nature from occurring to him or to others?
I don't believe the GLP is the answer. From my point of view it has given the police license to harass new drivers rather than to encourage them and they aren't learning anything different. Safe driving is what we need to teach them. A better plan would be to introduce defensive driving courses as part of the school curriculum and make this mandatory. That way every young person learns from a professional rather than any "joe" behind the wheel of a vehicle.
Let's take a quick look at the law with regard to the 24 hour prohibition:
215(3) 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's ability to drive a motor vehicle is affected by a drug, other than alcohol,
(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,
(b) serve the driver with a notice of driving prohibition, and
(c) if the driver is in possession of a driver's licence, request the driver to surrender that licence.
In order to prohibit a driver under this section of the Motor Vehicle Act, the officer must have "reasonable and probable grounds" to believe that the driver is impaired by a drug other than alcohol. Reasonable and probable grounds are discussed in R v Storrey (Supreme Court of Canada 1990):
Section 450(1) requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest.
Shining a flashlight in the face of a driver and taking a quick look would not generally lead to reasonable and probable grounds that the driver's ability to drive is impaired by a drug. I have watched a Drug Recognition Expert examine a driver for drug use and there were a number of tests that were given before a conclusion was reached.
Should a driver feel that these grounds did not exist, there is opportunity to dispute the fact:
215(8) If a driver, who is served with a notice of driving prohibition under subsection (3), satisfies a peace officer having charge of the matter that his or her ability to drive a motor vehicle is not affected by a drug, other than alcohol, the prohibition from driving is terminated.
Unfortunately, other than via the physical testing that I have already spoken of or being able to verbally convince the officer that you are not impaired by a drug, there is no other provision for establishing the fact. This includes blood or breath testing, which is currently only used for alcohol consumption investigations.
At the conclusion of the incident, the officer completes notes that form part of the 24 hour prohibition and are kept as part of the report. These notes are a written explanation of the officer's reasonable and probable grounds.
At this point, I would understand that your son and company were not able to convince the officer that he was not under the influence of drugs. What now? Read the copy of the 24 hour prohibition notice that he was given fully and carefully. The back of the driver's copy says the following with respect to drugs:
If the prohibition was served because your ability to drive was affected by a drug other than alcohol, you do not have a right to request a blood alcohol test. The prohibition may only be terminated early when you satisfy the peace officer having charge of the matter that your ability to drive a motor vehicle is not affected by a drug. The prohibition will still appear on your driving record.
If a notice was served on you because your ability to drive was affected by drugs, you do not have a right of review by the Superintendent.
For further information, go to www.pssg.gov.bc.ca/osmv
There are still two avenues of review at this point. The first is with the officer at a later time, my suggestion being at the start of their next shift which can be determined by calling the detachment and making an appointment. If you are not satisfied after a discussion, one can speak to the officer's supervisor who will review the incident. The second is in the courts, where all prohibitions of this nature can be subject to judicial review. I would recommend that this be done with the advice of a lawyer. The Lawyer Referral Service run by the Canadian Bar Association will find lawyers in your area that specialize in this aspect of law and a 30 minute consultation currently costs only $25.00.
Your son appears to have not taken any action with regard to the prohibition. Since he is in the Graduated Licensing Program, he was subject to a further prohibition by the Superintendent. This prohibtion was disputed, unsuccessfully. The avenue of judicial review still exists and the prohibition can be stayed by the courts until a decision is made. Again, you will likely need the assistance of a lawyer for this.
I do not know what can be done about removing this entry from your son's driving record, but I am guesssing that if the judicial review is successful the Superintendent will have to remove it.
As for the GLP, I think and I understand that research has shown that it has reduced injury and death with regard to new drivers, whatever their age may be. It will not be going away, nor should it go away. My opinion is that stronger sanctions should happen sooner to those drivers not in the GLP that show they cannot follow the driving rules. It was not a mystery to your son that he was limited to the number of passengers that he could carry. In fact, it is stated on the back of his driver's license. I applaud him for choosing to be the designated driver as that shows maturity on his part. However, he cannot choose to disregard the conditions of his license to drive. It's too bad that his circle of acquaintances put him in this situation and did not have the foresight to behave responsibly themselves.