Impaired driving convictions spark B.C. lawsuits

[d_bengert]

The website was incorrect...the motor vehicle act says nothing about Crown Council...just police and driver...

[zzontar]

What is incorrect about the website?

[zzontar]

I guess I could have shown the contradiction on the same website:

http://www.bclaws.ca/EPLibraries/bclaws ... e/96318_07

Considerations on review under section 215.48

215.49 (1) In a review of a driving prohibition under section 215.48, the superintendent must consider

(a) any relevant written statements or evidence submitted by the applicant,

(b) the report of the peace officer forwarded under section 215.47 (d),

(c) a copy of the notice of driving prohibition,

(d) any other relevant documents and information forwarded to the superintendent by the peace officer who served the notice of driving prohibition or any other peace officer,

(e) in the case of an oral hearing, any relevant evidence given or representations made at the hearing, and

(f) in the case of a second or subsequent prohibition, as described in section 215.43 (4) and (5), the person's driving record.

(2) In a review under section 215.48, no person may be cross examined.

(3) Despite subsection (1), the superintendent may, in the superintendent's discretion, proceed with a hearing whether or not the superintendent has received, at the time of the hearing, all those documents required to be forwarded to the superintendent under section 215.47.
Decision of superintendent after review under section 215.48

215.5 (1) If, after considering an application for review under section 215.48, the superintendent is satisfied that the person was a driver within the meaning of section 215.41 (1) and,

(a) in respect of a 3-day, 7-day or 30-day driving prohibition,

(i) an approved screening device registered a warn, and

(ii) in the case of

(A) a 7-day driving prohibition, the driving prohibition was a second prohibition, or

(B) a 30-day driving prohibition, the driving prohibition was a subsequent prohibition, or

(b) in respect of a 90-day driving prohibition,

(i) an approved screening device registered a fail, or

(ii) the person failed or refused, without reasonable excuse, to comply with a demand made on the person as described in section 215.41 (4),

the superintendent must confirm the driving prohibition, the monetary penalty for which the person is liable under section 215.44 and the impoundment imposed under section 215.46 for the period specified in section 253.

Almost back-to-back, they claim they must consider all relevant evidence by the applicant, then add that if they're satisfied you were the driver and blew over, they must confirm the prohibition and fines, meaning they won't consider any other evidence if this is so.

[twobits]

All of the confusion boils down to the definition of "relevant evidence". The OSMV is obviously interpreting the relevent information to mean one of only the three things listed in the act. ie- even a signed affidavit from a witness seeing the officer drop the RSD prior to administering the test would not be "relevant". This restriction of defense is what really stinks about the appeal process.

[d_bengert]

5 more months and there should be a better appeal process... Which in turn becomes protection against illegal search and seizure...I would also like to see innocent until proven guilty return to our fair country...this apparently isn't important enough to some as long as it is allegedly(goatboy...this is a perfect spot for this word) for the safety of the public... As long as the penalty is not too harsh...so they will have to make it easier to pay for...this should be an interesting rewrite...

[goatboy]

5 more months and there should be a better appeal process... Which in turn becomes protection against illegal search and seizure...I would also like to see innocent until proven guilty return to our fair country...this apparently isn't important enough to some as long as it is allegedly(goatboy...this is a perfect spot for this word) for the safety of the public... As long as the penalty is not too harsh...so they will have to make it easier to pay for...this should be an interesting rewrite...

Why don't you want the penalty to be too harsh for someone that is putting your families lives at risk by being ignorant and drinking and driving? I say make the penalty as harsh as they can get away with (with a proper way to dispute it to stop all this whining by people that have already been caught.)

[d_bengert]

5 more months and there should be a better appeal process... Which in turn becomes protection against illegal search and seizure...I would also like to see innocent until proven guilty return to our fair country...this apparently isn't important enough to some as long as it is allegedly(goatboy...this is a perfect spot for this word) for the safety of the public... As long as the penalty is not too harsh...so they will have to make it easier to pay for...this should be an interesting rewrite...

Why don't you want the penalty to be too harsh for someone that is putting your families lives at risk by being ignorant and drinking and driving? I say make the penalty as harsh as they can get away with (with a proper way to dispute it to stop all this whining by people that have already been caught.)

Again...its not what I want...its in the charter of rights that they can go against your rights if for the safety of the public as long as the penalty is not too harsh... And you forgot "allegedly" putting my families lives at risk...because using your balance of probability that driver between .05 and .08 is gonna make it home just fine. See ... Now I don't like your balance of probability even more

[goatboy]

...because using your balance of probability that driver between .05 and .08 is gonna make it home just fine. See ... Now I don't like your balance of probability even more

How do you get that? According to the IRP law, they will not so are prohibited from "driving home" if found within this range.\

Also, you're interpreting the decision wrong. The penalty can be harsh, but it must have a better mechanism to challenge it. That's why the "warn" was allowed to stay. The penalty better matched the existing dispute process.
It should also be noted that the judge found:

The ARP legislation does not create an “offence” as that term is used in section 11(d) of the Charter. Therefore, the legislation does not trigger the application of s. 11(d) of the Charter and it is not necessary to address whether the ARP regime violates the presumption of innocence.

And there's no allegedly, you drink and drive, you endanger my family.

[zzontar]

Also, you're interpreting the decision wrong. The penalty can be harsh, but it must have a better mechanism to challenge it. That's why the "warn" was allowed to stay. The penalty better matched the existing dispute process.

A "warn" can cost you 4 days pay, $200 in fines, $250 for license reinstatement, tarnished abstract for 5 years, plus $100 if you appeal. Pretty harsh if you ask me.

[d_bengert]

...because using your balance of probability that driver between .05 and .08 is gonna make it home just fine. See ... Now I don't like your balance of probability even more

How do you get that? According to the IRP law, they will not so are prohibited from "driving home" if found within this range.\

Also, you're interpreting the decision wrong. The penalty can be harsh, but it must have a better mechanism to challenge it. That's why the "warn" was allowed to stay. The penalty better matched the existing dispute process.
It should also be noted that the judge found:

The ARP legislation does not create an “offence” as that term is used in section 11(d) of the Charter. Therefore, the legislation does not trigger the application of s. 11(d) of the Charter and it is not necessary to address whether the ARP regime violates the presumption of innocence.

And there's no allegedly, you drink and drive, you endanger my family.

I believe the sections they brought up were sections 10 and 1....now the law says you can drink and drive up to a certain amount so if we're all gonna agree because its the law then your dangering statement is inacurate...and being someone who has worked in the alcohol business for years I can tell you with most certainty...the extreme majority of drinking drivers make it home just fine...so if I were to accept a balance of probabilities...which I don't...that would have to be included...which it shouldn't...sounds to me like I'm trying to come up with a solution that pleases everyone...while you are looking for a law that pleases you...it doesn't work that way

[goatboy]

.now the law says you can drink and drive up to a certain amount so if we're all gonna agree because its the law then your dangering statement is inacurate...and being someone who has worked in the alcohol business for years I can tell you with most certainty...the extreme majority of drinking drivers make it home just fine...so if I were to accept a balance of probabilities...which I don't...that would have to be included...which it shouldn't...sounds to me like I'm trying to come up with a solution that pleases everyone...while you are looking for a law that pleases you...it doesn't work that way

Your logic is, well, strange. So you're argument is that because most people who drink and drive were lucky enough to make it home OK, they are not really a danger so the penalty should not be harsh? And you're saying that you're trying to come up with a law that keeps everyone (and I assume you're meaning those that drink and drive vs everybody else) happy? Trust me, most British Columbians want the penalty for drinking and driving to be as harsh as possible. The only people that had a problem with this law are those that got caught and aren't man enough to admit they screwed up.

The bottom line is, any argument about how the dispute process works is irrelevant right now as there is none. Let the arguments begin once the new law is re-introduced.

[zzontar]

And what about those that got screwed already by an unconstitutional law, then couldn't get it revoked because of a rigged appeal process? Until this has been settled, there's lots to dispute. If one is man enough to admit they were wrong, they pay the fines, if the government is man enough to admit they were wrong, why should they be able to keep anyone's money they obtained wrongfully?

[goatboy]

And what about those that got screwed already by an unconstitutional law, then couldn't get it revoked because of a rigged appeal process? Until this has been settled, there's lots to dispute. If one is man enough to admit they were wrong, they pay the fines, if the government is man enough to admit they were wrong, why should they be able to keep anyone's money they obtained wrongfully?

You're of course assuming that these people were not guilty, right? You still miss the main point of the judges ruling. The law itself is NOT unconstitutional. You can keep telling yourself it is, but it's not. It's the dispute process.

[zzontar]

The law made the cops judge and jury which made the dispute process unconstitutional. Whatever the case, there are still innocent people who have been wrongfully penalized who should get a retraction.

[goatboy]

The law made the cops judge and jury which made the dispute process unconstitutional. Whatever the case, there are still innocent people who have been wrongfully penalized who should get a retraction.

What makes you so sure they were innocent? Not getting a second test doesn't mean they weren't guilty.