From Simon Says: Providing relevant information on policing and law

On May 1, 2009, amendments to the Highway Traffic Act (Sections 41-48) came into effect, as did three new Ontario Regulations (403/08, 405/08, and 407/08), as part of Bill 203, the Safer Roads for Safer Ontario Act.

Although we have just passed the one year anniversary of the legislation coming into force, there still seems to be a great deal of confusion about it. The purpose of this article is to dispel any remaining confusion over this legislation.

The purpose of this aspect of Bill 203 was to increase the penalty for drivers who blew in the “warn range” for blood alcohol concentration (B.A.C.), from what was then a 12 hour licence suspension to an escalating 3, 7, or 30 day suspension, with additional consequences.

These amendments did not change the B.A.C. level which qualifies as a “warn”, as some people have come to believe. This seems to be the most prominent misconception about Bill 203. The “warn” limit was, and is still, .05 to .08 B.A.C., or 50 to 80 milligrams of alcohol in 100 milliliters of blood. Under .05 B.A.C. is legal, unless you have a graduated Class G or Class M licence (G1, G2, M1, M2). Over .08 B.A.C. is, of course, illegal and qualifies you to be arrested and charged with Over 80 under Section 253 of the Criminal Code.

I encountered this mistaken impression about the “warn” level a great deal when I was on patrol after Bill 203 was enacted. I believe that the confusion stemmed from the wording used to advertise the new penalties. In print and on television, advertisements warned of “New roadside suspension for people who blow a .05.” Many people took this to mean that the limit had been lowered and people would now have their licence suspended for blowing a .05, however, that was always the case and the only thing that was new was the length of the suspension.

Prior to Bill 203, when police administered a roadside screening device to a driver who blew a “warn”, that driver got their licence seized by the police for 12 hours, after which time they could attend the police station and get it back. These suspensions were not recorded on a person’s driving record and there were no additional penalties or consequences. If a person drove during this 12 hour window they were technically driving on a suspended licence. However, it is not likely that anyone would know, except the officer who seized their licence, since the suspension was not recorded to CPIC (the Canadian Police Information Center), which any police officer can and would check during a traffic stop.

Now, under the new amendments, a driver blowing a “warn” will automatically have their licence suspended for 3 days and there are escalating penalties for repeat offenders. If a driver blows a “warn” again within 5 years, their licence will automatically be suspended for 7 days. If a driver blows a “warn” a third time, within 5 years of the second time, their licence will be automatically suspended for 30 days.

Since these suspensions are more than 12 hours long, they are entered onto CPIC for their duration, which allows any officer encountering the person in that time frame to know that their licence is under suspension. These suspensions are issued on the authority of the police officer, at the roadside and the authority extends to international driving permits and licences of other jurisdictions, as well as Ontario licences. This new legislation notwithstanding, police can still suspend the licence of a novice driver who has a blood alcohol level under .05 using the old 12 hour procedure.

If caught driving during this time on a suspended licence, a person can be subject to a fine of up to $5,000 and 6 months in jail. In my experience, Justices of the Peace do not take kindly to people driving when they have been told not to and jail time is not uncommon for this offence, even though it is only quasi-criminal.

The additional consequences for blowing a “warn” are as follows. Upon the second suspension, the driver will be required to complete a remedial alcohol program with the Ministry of Transportation and their licence will automatically be suspended indefinitely if they fail to complete the program. Upon the third conviction, the driver will be subjected to the remedial program again as well as to an ignition interlock condition on their license for a minimum of 6 months after their license is reinstated. This means that they are required to have an ignition interlock device installed in their vehicle and they are prohibited from driving any vehicle not equipped with one. Fines for violating ignition interlock conditions can be up to $1,000.

Another new consequence for blowing a “warn” is that, once the suspension is lifted, the person is required to pay a $150 reinstatement fee to the MTO to get their licence reactivated. This was not the case with the 12 hour suspensions, since the licence was not officially suspended with the MTO, it was just held by police for 12 hours.

One interesting feature of Bill 203 is the addition of Section 48 (9) to the Highway Traffic Act, which explicitly states that, “There is no appeal from, or right to be heard before, the suspension of a driver’s licence under this section.” This section has been greatly contested by some, who feel that it violates the rights guaranteed under Section 11 (d) of the Charter, “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Since there is no trial process for licence suspensions, and no right to appeal, the police officer is, in effect, judge, jury, and executioner, convicting and carrying out the sentence themselves.

I believe that the only reason this particular feature was permitted to be passed is because, unlike an actual charge, a licence suspension carries no direct punishment. Although there is a great deal of inconvenience associated with it, there is no fine or other consequence for receiving a roadside suspension.

There is no indirect punishment for it either, since, according to a Financial Services Commission of Ontario bulletin, insurance companies cannot use an Administrative Driver’s Licence Suspension (ADLS), which is less than one year in length, in their risk classification system, which is what primarily determines your premiums. An ADLS is any suspension not associated with a conviction in court for a driving related offence, thus all of these suspensions qualify.

Perhaps to balance out this somewhat restrictive feature, Bill 203 also included the addition of Section 48 (6) of the Highway Traffic Act, which states that a driver now has the right to demand an officer provide them with a second opportunity to provide a breath sample, with a different roadside screening device or a breathalyser machine at the police station, to verify the accuracy of the first reading. The inclusion of the breathalyser machine at the station is important for anyone who wants absolute verification that the police are being honest with them, since the breathalyser machine prints out a record of the breath sample showing the B.A.C.

This section does come with one caveat, however: the second reading stands. If the second reading is under .05, the driver does not receive a licence suspension. If the second reading is also a “warn” they do. But, if the second reading is a fail, the person is arrested for Over 80. It is good to know your rights if you are in this situation, but be wary if you are going to demand a second sample! Unlike breathalyser samples for people arrested for Impaired Driving or Over 80, there is no specified minimum or maximum time between samples, however the driver must make themselves readily available for a second sample. They cannot delay while they wait for the B.A.C. to drop.

The rationale behind this legislation is to denounce driving with a blood alcohol level which could affect a driver’s ability to operate their motor vehicle safely, putting themselves and the public at risk. It is up to you to decide whether you think it accomplishes this goal and whether there may be a better way of doing it. I invite you to post your thoughts in the comments section and, as always, please feel free to share the link to this article on your forums and other social media outlets.