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Drunk-driving ruling scrutinized to see if it includes failed appeals

Dec 04 2011

After a B.C. Supreme Court decision that struck down parts of the province's new drinking and driving law, it remains unclear what will happen to people who, in the past year, unsuccessfully appealed against immediate roadside prohibitions after failing a sobriety test.

Steve Martin, the superintendent of motor vehicles, said the province's lawyers are still analyzing the decision to determine whether it will be applied retroactively.

"Does this judgment apply retroactively? I don't think it does, but we are reviewing the decision obviously with our legal counsel to determine the impact on drivers who have already had an IRP [immediate roadside prohibition] in the fail range," Martin said.

"From my perspective, I think it's going to be from this point forward."

B.C. Supreme Court Justice Jon Sigurdson ruled on Wednesday that the sanctions for people who blow over .08 on a roadside screening device trample people's right to be free from unreasonable search and seizure.

He also said there were inadequate appeal mechanisms for those ensnared in the law.

Police issued 23,366 immediate roadside prohibitions from September 2010 to September 2011 - 15,401 for a failed roadside breath test (a blood alcohol level over .08 and 7,965 "warns" for a level of .05 to .08).

According to the Motor Vehicle Branch, of the total IRPs, 2,752 cases, or about 12 per cent, were appealed. Only 468, or 17 per cent, of those appealed were overturned.

Drivers are given 60 days to request a judicial review if their appeal is rejected.

The government will introduce legislation, likely this spring, that will add criteria allowing drivers who blow over .08 to challenge the results of the roadside screening device.

Victoria defence laywer Mike Mulligan said it will be interesting to see how the government responds to people who have been put through what the courts decided was an unfair process.

"What the province tried to do is use a screening test with no viable appeal process," he said.

"It would be open to the government to decide to act in a fair fashion."

Mulligan said the screening device is problematic because it's not as accurate as the Datamaster breathalyzer machine at police headquarters, which is used when processing criminal drinking and driving investigations.

Police have said the court decision will not affect their Counter Attack program, which aims to nab impaired drivers over the holiday season.

Officers will revert back to the old system of giving someone who blows over .08 an immediate 24-hour suspension and proceeding with a criminal investigation.

kderosa@timescolonist.com

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