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Les Leyne: Tests ahead for drunk-driving rules

The decision to bull ahead with imposing certain impaired driving penalties even after parts of the system were declared invalid was formally abandoned this week.

The decision to bull ahead with imposing certain impaired driving penalties even after parts of the system were declared invalid was formally abandoned this week.

It’s a move that affects one relatively small group of drivers, and only two specific penalties. But there are likely more challenges coming to the two-year-old impaired-driving regime that changed the landscape so dramatically. In fact, the superintendent of motor vehicles is in for a round of arguments about how he used his powers that could test the whole system.

The preliminary data show that the new process has been remarkably successful in cutting alcohol-related road fatalities.

And there’s no question that it captured the public’s attention. In terms of impact on daily lives, it may be the most profound thing a B.C. government has done in years.

It set up a series of administrative penalties that are so severe for anyone who blows over .08 that they supplant the need for criminal charges.

The new approach also provided for an escalating series of penalties even if drivers are not legally impaired. Motorists blowing between .05 and .08 can face a suspension and several hundred dollars in costs.

Police and the superintendent of motor vehicles can levy these penalties automatically and immediately. And they’ve been doing so by the tens of thousands since 2010.

But colleague Rob Shaw revealed this week that part of the approach has unravelled.

The problem relates to a period of a few weeks around the time that the B.C. Supreme Court ruled on the new system. It was quickly tested in court by a number of aggrieved drivers. And the court ruled in 2011 that one aspect of the law was out of bounds.

Justice Jon Sigurdson said: “Under the criminal law a driver has a number of protections to ensure only properly compelled evidence can support a conviction, however under this provincial regime, the same protections do not exist.”

The breath test “results in consequences similar to those arising out of a criminal investigation, but provides a far less meaningful basis upon which to challenge the legitimacy of those consequences.”

The government responded with an amendment last year that tried to comply with the ruling. It required police to offer suspects two chances to blow, and use the lowest reading.

But there was a leftover problem. About 1,200 drivers were caught a few weeks before the ruling, and processed after the decision.

The superintendent initially considered waiving some of the penalties, given that they’d been found unconstitutional. Then he decided to press ahead with them. They include mandatory education classes and an expensive ignition-interlock system, which requires a clean breath reading to start the vehicle.

Several people challenged that, and the office reviewed the cases.

Results? In the 1,200 cases, the fines and suspension stay. But the superintendent has overturned the requirement to take the class and install the interlock system for nearly all of them. Those people will be refunded their costs.

The key aspect is that the classes and the interlock system were considered discretionary penalties. How that discretion was exercised by the superintendent will likely be the focus of another challenge.

Lawyers are determined to whittle away at the superintendent’s authority. So the next step will be to challenge the requirements to take the courses and install the $1,700 ignition devices.

The superintendent can impose those demands if he forms the opinion the offender’s driving record makes it in the public interest to do so.

But what is he forming that opinion on? Is one case of blowing over the limit enough to require the extra punitive steps?

Under the current regime, it looks as though it is. So expect a challenge from drivers with clean records who failed one breath test and were subjected to the course and the interlock.

That will likely end up involving a lot more than the 1,200 caught in that one three-week period.

The two-year-old approach has made it a lot easier to lower the boom on drunk drivers. But there are going to be some expensive tests ahead to see if it will hold up.