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Re: Random Breath tests

PostPosted: Jan 11th, 2019, 11:26 am
by RVThereYet
Bpeep wrote:Some of you may remember a well known local lawyer doing that also, moments after being in a vehicle collision.
Right in the middle of an intersection on spall road.
Lol.


Sure do, initials HB I believe, hit the retaining wall at the KG & CC, he was well versed in the drinking and driving laws of the day and managed to finagle his way out it

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 11:28 am
by Fancy
The "last drink" defence still on lawyers' web pages will need to be updated.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 11:53 am
by oldtrucker
Conservative Party of Canada
New Democratic Party
Green Party of Canada
Peoples party of Canada

You need to make the following election promises now:

1.All charges under the new 'impaired driving laws' that started in Dec 2018 - dropped. New 'impaired driving laws' cancelled.

2. The dismissal/removal/exposure/ of all people responsible for the act of disregarding and disrespecting Canadians civil liberties and freedoms regardless of title, position in government, or political party they serve.

3.A promise to never insult those that sacrificed everything for Canadians civil liberties and freedoms again. Ever.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 11:58 am
by LTD
dont hold your breath

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 12:03 pm
by Fancy
There's been enough in the news and other media expressing opinions. With the Mississauga man pulled over (Art), I'm surprised I haven't read anything about the police being contacted with regard to this incident. There will be challenges in court but would be nice to hear if the Mississauga police department (and all others) have actually any guidelines to follow besides their own discretion. I don't think watching someone returning any number of bottles for refund or cherry picking beside a liquor store a great way to use resources.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 12:16 pm
by my5cents
soupy wrote:The Police in BC following the MVA is no change with the new rules.
Yes there are a few bad examples. I can provide one as well.

I had a family member (N driver) go through a Roadblock and ask to provide a breath sample.
The family member followed instructions and made several attempts to blow into the device and a reading was not registered into the device at anytime. (7-8 attempts)
Young family member did not know rules and at no time was a 2nd device was brought in or requested.
Family member immediately had car impounded and licence revoked. And was told to call a cab to get home.

Long story short. Did not have to pay any fees upon return of his car and licence revoke was reversed within days.
A week later same family member drove through a checkstop and same officer was salivating at the lips immediately as the officer recognized him and his car. She sure was surprised to run his licence and learn it was returned and car released.

With today's criminal law regarding screening tests, the constable could have made a further demand for a breath test to your family member, just for the fun of it, and there would be nothing your family member could do but blow.

I think we agree on these issues. I don't agree with drinking and driving, nor do I think you do.

My point on the IRP.... I'm not suggesting that any use of the IRP has changed as it has been for quite a while. What I am saying is that, really the last legal "check" on the requirement of a screening test, "reasonable ground" has been removed.

Once a single cop has a driver blow into a screening device virtually all checks and balances are gone. If he proceeds via the IRP, that single cop is the judge and jury. The facts are what the single cop perceives.

At least before the most recent change in the Criminal Code, the demand for the blow into the screening device had a caveat.

Let's say a person in a small community has had run ins with a certain other person, who happens to be the local constable. That constable to harass the other, pulls the person over while driving and demands a screening test. The driver knows he hasn't touched a drop of liquor for years and knows the constable is harassing.

Before this change in law, if the driver refused to blow, they would have the defense that the constable didn't have "reasonable grounds" and could call evidence to support that, and could in addition have his blood tested at a local hospital and prove the constable did not have "reasonable grounds".

With today's laws. The driver is guilty. The constable doesn't need "reasonable grounds".

Likely the story is a bit far fetched but you get the idea.

The processing of a drinking driver is a 3 step process.

Step 1 - Roadside Test :

    - A demand is given for a screening device test pursuant to the Criminal Code

Step 2 - After results of Roadside Screening Test is a "Warn" or "Fail" :

    - Peace officer proceeds criminally
    - Peach officer proceeds via the IRP

Step 3a - Peace Officer Proceeds Criminally :

    - Peace Officer MUST issue a 90 prohibition under the MVA
    - Driver at a later date is formally charged and pleads guilty, or not guilty and has a criminal trial with all the provisions of the Evidence Act and the Charter of Rights and Freedoms, in a public trial, before an unbiased tribunal (Judge). Has the right to cross examine any and all witnesses against him/her. After the trial is found guilty or not guilty.
Step 3b - Peace Officer Doesn't Proceed Criminally :

    - Peace Officer finds the driver guilty at the side of the road
    - Peace Officer MUST issue a prohibition under the IRP
    ... Depending on the circumstances 3 - 90 day driving prohibition
    ... Possible or required vehicle impoundment of between 3 - 30 days
    ... Monetary costs as high as $4000
    ... Possibility of a required ignition interlock
    ... Possibility of a required Driver Responsibility course
    - The driver may appeal his/her guilt by submitting a statement, which will be reviewed in conjunction with the peace officer's report, in private by a bureaucrat

For any of you shrewd readers you might have picked up, that as soon as the BC MVA is applied, the presumption of innocents is gone.

Yes, we all know the IRP is a conviction at roadside, without a trial (pubic or otherwise), without rules of evidence, without the presumption of innocents, no ability to cross examine witnesses etc etc.

BUT even when the police proceed against a driver under the criminal code, the MVA requires the police to issue a prohibition, BEFORE any trail has taken place. WHAT ?????

Can you imagine being pulled over for speeding, being required to pay your fine BEFORE your trial ?? Be charged with a criminal offense and having to pay some type of penalty BEFORE your trial ????

OK, you served your 90 prohibition for being charged criminally for being over 80 mgs and you are acquitted of the charge, you've already served your 90 prohibition !

Gotta love the BC Provincial Legislation.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 1:02 pm
by my5cents
oldtrucker wrote:Conservative Party of Canada
New Democratic Party
Green Party of Canada
Peoples party of Canada

You need to make the following election promises now:

Ya, promises are good,,,, you mean like the Liberals promise to introduce electoral reform legislation within 18 months of forming government ?

Are you off your meds again ? :smt045

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 1:02 pm
by soupy
my5cents wrote:With today's criminal law regarding screening tests, the constable could have made a further demand for a breath test to your family member, just for the fun of it, and there would be nothing your family member could do but blow.
He was trying to blow, multiple times. Machine was not working.
He has been advised if that occurred again to wait with the Officer until a 2nd machine was brought in

I think we agree on these issues. I don't agree with drinking and driving, nor do I think you do.
We agree on this
My point on the IRP.... I'm not suggesting that any use of the IRP has changed as it has been for quite a while. What I am saying is that, really the last legal "check" on the requirement of a screening test, "reasonable ground" has been removed.
Yes, reasonable ground is removed to request a driver to blow. Pulled over for speeding, check sobriety
Once a single cop has a driver blow into a screening device virtually all checks and balances are gone. If he proceeds via the IRP, that single cop is the judge and jury. The facts are what the single cop perceives.

At least before the most recent change in the Criminal Code, the demand for the blow into the screening device had a caveat.

Let's say a person in a small community has had run ins with a certain other person, who happens to be the local constable. That constable to harass the other, pulls the person over while driving and demands a screening test. The driver knows he hasn't touched a drop of liquor for years and knows the constable is harassing.

Before this change in law, if the driver refused to blow, they would have the defense that the constable didn't have "reasonable grounds" and could call evidence to support that, and could in addition have his blood tested at a local hospital and prove the constable did not have "reasonable grounds".

With today's laws. The driver is guilty. The constable doesn't need "reasonable grounds".
Driver is only guilty if they fail the roadside sobriety test. Dont drive drunk, you are innocent :up:
Likely the story is a bit far fetched but you get the idea.

The processing of a drinking driver is a 3 step process.

Step 1 - Roadside Test :

    - A demand is given for a screening device test pursuant to the Criminal Code

Step 2 - After results of Roadside Screening Test is a "Warn" or "Fail" :

    - Peace officer proceeds criminally
    - Peach officer proceeds via the IRP

Step 3a - Peace Officer Proceeds Criminally :

    - Peace Officer MUST issue a 90 prohibition under the MVA
    - Driver at a later date is formally charged and pleads guilty, or not guilty and has a criminal trial with all the provisions of the Evidence Act and the Charter of Rights and Freedoms, in a public trial, before an unbiased tribunal (Judge). Has the right to cross examine any and all witnesses against him/her. After the trial is found guilty or not guilty.
Step 3b - Peace Officer Doesn't Proceed Criminally :

    - Peace Officer finds the driver guilty at the side of the road
    - Peace Officer MUST issue a prohibition under the IRP
    ... Depending on the circumstances 3 - 90 day driving prohibition
    ... Possible or required vehicle impoundment of between 3 - 30 days
    ... Monetary costs as high as $4000
    ... Possibility of a required ignition interlock
    ... Possibility of a required Driver Responsibility course
    - The driver may appeal his/her guilt by submitting a statement, which will be reviewed in conjunction with the peace officer's report, in private by a bureaucrat

For any of you shrewd readers you might have picked up, that as soon as the BC MVA is applied, the presumption of innocents is gone.

Yes, we all know the IRP is a conviction at roadside, without a trial (pubic or otherwise), without rules of evidence, without the presumption of innocents, no ability to cross examine witnesses etc etc.

BUT even when the police proceed against a driver under the criminal code, the MVA requires the police to issue a prohibition, BEFORE any trail has taken place. WHAT ?????

Can you imagine being pulled over for speeding, being required to pay your fine BEFORE your trial ?? Be charged with a criminal offense and having to pay some type of penalty BEFORE your trial ????

OK, you served your 90 prohibition for being charged criminally for being over 80 mgs and you are acquitted of the charge, you've already served your 90 prohibition !

Gotta love the BC Provincial Legislation.


What I do see happening is now in court there will be an ABUNDANCE of dash-cam evidence.

Example:
Police still need reasonable grounds to pull you and your vehicle over. Dangerous driving, traffic violation, checkstop.
Common comment is that people are afraid Police will pull you over and say "i saw you swerve over the double yellow line, i am requesting a sobriety test"
Pass test - no worries
Fail test - Onus on you to prove the officer did not have reasonable grounds to stop you. Dashcam footage clearly shows you are driving the speed limit, didnt swerve over double yellows. Good luck with that charge sticking. Now is this person really still "innocent"? They failed a sobriety test.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 1:03 pm
by the truth
Bpeep wrote:Some of you may remember a well known local lawyer doing that also, moments after being in a vehicle collision.
Right in the middle of an intersection on spall road.
Lol.


i would expect nothing less from a goo f lawyer

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 1:08 pm
by my5cents
Fancy wrote:There's been enough in the news and other media expressing opinions. With the Mississauga man pulled over (Art), I'm surprised I haven't read anything about the police being contacted with regard to this incident. There will be challenges in court but would be nice to hear if the Mississauga police department (and all others) have actually any guidelines to follow besides their own discretion. I don't think watching someone returning any number of bottles for refund or cherry picking beside a liquor store a great way to use resources.

I agree that it would have been reassuring to hear that the constable had been counselled on his judgement to think it was a reliable way to identify a drinking driver by observing what he thought an inordinate quantity of empty bottles being returned at noon.

I fear if you have a constable who bases actions on such flawed logic, that the screening test demand is the least of the problems the department has or will have with him.

I don't think we as Canadians should gain protection from police department guidelines instead of from our laws.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 1:13 pm
by oldtrucker
my5cents wrote:
oldtrucker wrote:Conservative Party of Canada
New Democratic Party
Green Party of Canada
Peoples party of Canada

You need to make the following election promises now:

Ya, promises are good,,,, you mean like the Liberals promise to introduce electoral reform legislation within 18 months of forming government ?

Are you off your meds again ? :smt045

I know...I'm supposed to keep taking my pills. Your right. I'm out of red ones...but I have lots of blue pills I can trade.
If I forget to take my meds I get crazy ideas like gov't should be accountable. If I don't take any pills at all, I end up wanting to lead a federal party and run for PM to save whats left of Canada.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 2:05 pm
by GordonH
oldtrucker wrote:Conservative Party of Canada
New Democratic Party
Green Party of Canada
Peoples party of Canada

You need to make the following election promises now:

1.All charges under the new 'impaired driving laws' that started in Dec 2018 - dropped. New 'impaired driving laws' cancelled.

2. The dismissal/removal/exposure/ of all people responsible for the act of disregarding and disrespecting Canadians civil liberties and freedoms regardless of title, position in government, or political party they serve.

3.A promise to never insult those that sacrificed everything for Canadians civil liberties and freedoms again. Ever.


I suspect the reasoning behind this new law is someone actually looked at how many innocent people have been killed by drinking drivers over the years.
There rights (innocent killed) were complete rip away from them without any say whatsoever.

Yes, I lost both Family & Friends to dumb :cuss: drinking driver. Counterattack has been in place since the 70s, drivers still don't have brains to stop drinking & driving.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 2:48 pm
by my5cents
my5cents wrote:With today's criminal law regarding screening tests, the constable could have made a further demand for a breath test to your family member, just for the fun of it, and there would be nothing your family member could do but blow.
soupy wrote:He was trying to blow, multiple times. Machine was not working.

I was suggesting that at the time the female constable stopped your relative the second time (salivating) she could just demand a test without grounds, with the new law.

soupy wrote:Yes, reasonable ground is removed to request a driver to blow. Pulled over for speeding, check sobriety

Well as long as the driver/vehicle was subject of a "lawful stop", be that under criminal law, provincial law or common law. I guess that includes just about every reason except perhaps "Eenie meenie miney mo"
my5cents wrote:Before this change in law, if the driver refused to blow, they would have the defense that the constable didn't have "reasonable grounds" and could call evidence to support that, and could in addition have his blood tested at a local hospital and prove the constable did not have "reasonable grounds".

With today's laws. The driver is guilty. The constable doesn't need "reasonable grounds".
soupy wrote:Driver is only guilty if they fail the roadside sobriety test. Dont drive drunk, you are innocent :up:

We're talking, at this point, about "if the driver refused to blow".

soupy wrote:What I do see happening is now in court there will be an ABUNDANCE of dash-cam evidence.

Example:
Police still need reasonable grounds to pull you and your vehicle over.

No, they don't need "Reasonable Grounds" to stop the vehicle, all they need to do is make a "lawful stop". The term "reasonable ground" would have to go with "reasonable grounds to believe...….." A lawful stop could be for anything, a check for a driver's license, make sure the vehicle is insured or that the insurance documents are in the vehicle.

soupy wrote:Dangerous driving, traffic violation, checkstop.


Checkstop ????? That is a random stop for no established reason, yes this is the standard.

soupy wrote:Common comment is that people are afraid Police will pull you over and say "i saw you swerve over the double yellow line, i am requesting a sobriety test"
Pass test - no worries
Fail test - Onus on you to prove the officer did not have reasonable grounds to stop you. Dashcam footage clearly shows you are driving the speed limit, didnt swerve over double yellows. Good luck with that charge sticking. Now is this person really still "innocent"? They failed a sobriety test.

No, No, No. Reasonable Grounds are not the standard.

You got most of it down, with the exception of the reasonable grounds to stop the vehicle. At this point there is the standard of "lawful stop", after that, everything is fair game for the cop.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 2:52 pm
by oldtrucker
GordonH wrote:Yes, I lost both Family & Friends to dumb drinking driver. Counterattack has been in place since the 70s, drivers still don't have brains to stop drinking & driving.







I did not mean to come across insensitive to peoples losses of loved ones to impaired driving. I too have experienced that.

I Know the mental torment that my grandfather went through having to live with the lives that he took during the war. All of the torment that many have paid for our rights, our way of life, our freedom out weighs the pain of loved ones lost from impaired driving.
Our civil liberties,freedoms and rights to privacy out weighs everything else by orders of magnitude.
As I said, this has nothing to do with impaired driving,it's so much bigger than that.

Re: Random Breath tests

PostPosted: Jan 11th, 2019, 3:06 pm
by RVThereYet
GordonH wrote:Yes, I lost both Family & Friends to dumb :cuss: drinking driver. Counterattack has been in place since the 70s, drivers still don't have brains to stop drinking & driving.


No offence to your loss GordonH, but regardless of these new laws, people will continue to drink and drive and people will still be killed by drunk drivers, as unfortunate (and stupid) as that is. But unless there is a marked change in that police start pulling lots of people over based on these laws and check them for alcohol consumption, there will be people that think they can get away with it, and will get away with.