You had a few drinks with dinner and decided to drive home right after. A police officer pulled you over. The next thing you know, you were handed a Notice of Driving Prohibition for 90 days for blowing a “fail” on their alcohol screening device, your car was impounded, you are liable for ridiculously high monetary penalties and you feel you need to do something about this.
Can the Driving Prohibition be revoked or at least reduced? Yes, there is a review process available and it will cost you $100 if you wish to present your case in writing, or $200 if you opt for an oral review. These fees are not refundable even if you are successful at the review hearing. You must also apply for a review within 7 days from the date you received the Notice. If you failed to apply before the deadline, you are deemed to accept the Driving Prohibition.
In these cases, speaking to a lawyer for a quick assessment of your chances of success will be helpful to determine whether you should apply for a review or not. Under the BC Motor Vehicle Act, the adjudicator can only consider three grounds for revocation or variation of the Driving Prohibition in the review:
1. your breath test did not register “fail” (0.08% blood alcohol content);
2. you did not operate or have care or control of the vehicle on a highway or industrial road; and
3. you did not fail or refuse to comply with a demand for a breath test, or you had a reasonable excuse for failing or refusing to comply.
If the adjudicator finds from the evidence that the breath test did not register a “fail”, then the adjudicator can either revoke the Driving Prohibition or vary it to a lower penalty. If the adjudicator is convinced that your blood alcohol content should have been somewhere between 0.05% and 0.079%, then he/she can vary the Driving Prohibition to a lesser penalty. Otherwise, if the adjudicator cannot conclude what your blood alcohol should have been at the time, or that it should have been lower than 0.05%, then he/she must revoke the Driving Prohibition, and refund or waive all of the monetary penalties, including the towing and storage charges. Similarly, if you apply for a review on any one of the two latter grounds and the adjudicator finds in your favour, he/she must revoke the Driving Prohibition and refund or waive the monetary penalties. People often think hardship would support their case. Unfortunately, the hardship that may be caused by the loss of your driving privileges cannot be considered in the review.
Moreover, just because you can offer conflicting evidence to what the police officer submitted does not mean the adjudicator cannot confirm the Driving Prohibition. In determining whether the breath test results were right or wrong, the adjudicator is entitled to make findings of fact, including determining who to believe if there is conflicting evidence and to draw inferences from the evidence. As long as there is evidence upon which to reasonably find that you blew a “fail” on the breath test, the adjudicator can still confirm the Driving Prohibition. Thus your key to success is to prove the breath tests were inaccurate, and the best way to prove it is to show the police officer failed to follow all of the proper procedures when administering the breath tests. For instance, the police officer may have knowingly taken the breath samples within 15 minutes of your last drink, which may affect the accuracy of the readings due to fresh mouth alcohol. On the other hand, if the police officer does not suspect fresh mouth alcohol, but waits too long to administer the breath sample, the demand for a sample may be found to be unlawful and the Driving Prohibition can be revoked for lack of evidence. These are but a sample of the various strict procedural requirements the police officers must follow to justify the Driving Prohibition.
Unfortunately, unless you have a clear memory of what happened that night, it would be difficult to assess your chances of success without reviewing the police officer’s report, which is only provided to you (on a timely basis) if you apply for a review before the 7 day deadline.
Perhaps the rule of thumb should be, if in doubt, pay the review fee to keep your chances open.
