VANCOUVER - Part of a law the B.C. government heralds as responsible for saving lives by keeping drunk drivers out of their vehicles has been ruled unconstitutional by a judge who found motorists are given little chance to defend themselves if they blow over the legal blood-alcohol limit at a roadside test.
Justice Jon Sigurdson found British Columbia's new laws go too far by allowing automatic driving suspensions of up to 90 days, impounding of vehicles and the imposition of thousands of dollars in costs when someone blows over .08 on a roadside screening device.
The law violates constitutional protections against search and seizure, he concluded.
"While the consequences from the search are substantial and approach criminal law sanctions, there is no way under the impugned law for the driver to challenge the validity of the results," Sigurdson wrote in the judgment released Wednesday.
"The (automatic roadside prohibition) regime that imposes prohibitions for drivers who fail at the roadside does not appropriately balance the rights of individuals and society at large."
The B.C. government credited the legislation with leading to a significant drop in the number of deaths from drunk driving over the past year. On average, 113 people died per year between 2005 and 2010 as a result of motorists driving impaired, but that number dropped to 45 after the law was introduced last October.
Solicitor General Shirley Bond said only a "minor fix" is needed to bring the law into line with the Constitution.
She noted that Sigurdson upheld most of the law, rejecting arguments that the province was infringing on federal turf by enacting it and by upholding the penalties for those who blow between .05 and .08.
"We're very pleased with the ruling today," Bond said, adding the government will be moving as quickly as possible to address the portion of the legislation Sigurdson rejected.
The law allows for penalties that could cost suspended drivers over $4,000 and prompt them to lose their driving privileges and their vehicle for up to 90 days without recourse to a lawyer or a courtroom.
Sigurdson noted that in Alberta and Ontario, someone blowing over .08 in a roadside test would be taken back to the police detachment for another test on a more sophisticated breathalyzer device. That person would have a right to a lawyer.
But under B.C.'s legislation, the penalties and costs are imposed at the roadside based solely on the results of the screening device.
Those devices don't record the results permanently, so there is no way to challenge them later, Sigurdson found.
He noted suspended drivers can apply for a review of the driving prohibition within a week. But there is only an oral hearing and no one may be cross-examined during it. The hearing can go ahead even if all the documents from the officer have not yet been received.
Instead, the adjudicator must only decide whether the driver was present and whether the roadside device registered a reading between .05 and .08, for a warning, or a failure for a reading above .08.
"The only available evidence as to what the (device) indicated is the observation of the peace officer, which may be put before the adjudicator in the form of an unsworn statement," Sigurdson wrote.
He noted the financial costs can be extensive.
Fines range up to $500. The cost of towing a vehicle is about $80 and up, depending on the distance towed. Storage fees are as high as $19.55 per day. The cost of installing an ignition lock device is $1,500, and the costs of enrolling in a remedial program is $880.
"This infringement is not a reasonable limit which is demonstrably justified in a free and democratic society," Sigurdson wrote.
He noted the province could have easily provided a way for drivers to challenge the results of the screening device by giving drivers the chance to speak to a lawyer before providing the second breath sample at a police station.
Bond said the government will make the fix.
"(The ruling) does not mean that if you decide to drink and drive and blow .08 or above you will not face consequences. What it means is that in the interim, until I can make the legislative fix that's required, you face potentially criminal charges and it reverts to the regime that was in place previously: a criminal charge and a 90-day prohibition."
However, Sigurdson upheld provisions of the law that allow for suspension of up to 30 days for anyone that blows between .05 and .08. He said because those penalties were lighter, they could be constitutionally justified.
Civil liberties lawyers and members of the hospitality industry have long complained the new law was so draconian, it scared people away from having a few drinks responsibly.
The judgment was applauded by a coalition of bar owners.
"We have believed from day one that this law is unfair and conceptually flawed, and our businesses have suffered as a result," Matt MacNeil, president of the Alliance of Beverage Licensees of British Columbia, said in a statement.
"We look forward to working with the B.C. Government to come up with better solutions to stop impaired driving."
Lawyer Brian Mickelson represented one of four people challenging the law.
"It's a good decision. It respects the rights of individuals and it balances the . . . seriousness of the problem of impaired driving."
In Alberta, Premier Alison Redford's government had planned this week to pass legislation that imposed penalties in some cases that would go beyond the B.C. model.
Under the Alberta bill, drivers caught over .08 would immediately have their licence suspended until the case is resolved in court. That could be a lag of months or even years.
If convicted, the Alberta driver must participate in the ignition interlock program, at personal cost, from between one to five years depending on the number of convictions.
Like in B.C., Redford is facing criticism from civil libertarians who fear the laws will turn police into roadside judges and juries.
