Here - ABLE BC

Police Practices and Impaired Driving
under the Automatic Roadside
Prohibition Regime
by Shea Coulson
Since September 20, 2010, the provincial
government’s Automatic Roadside Prohibition
regime (ARP regime) has imposed penalties
for drivers who blow above 0.05 blood alcohol
content into an Approved Screening Device (ASD)
administered at the roadside. The ARP regime
has dramatically altered the landscape for liquor
licensees in the province, both in terms of the
law itself and police practices enforcing the law.
On November 30, 2011, the BC Supreme Court
struck down the portion of the ARP regime dealing
with drivers blowing over 0.08 blood alcohol,
but upheld the remainder of the ARP regime.
This decision, which is known as Sivia v. British
Columbia (Superintendent of Motor Vehicles), is
now under appeal to the BC Court of Appeal. In
the meantime, the provincial government has
amended the ARP regime to address the Supreme
Court’s concerns and the ARP regime remains in
force. However, if the appeal is successful, the
entire ARP regime will be struck down and the
government will have to reconsider its approach
from scratch.
Given the outstanding appeal, the full ramifications
of the ARP regime have not yet been realized as the
government awaits the Court of Appeal’s ruling.
Despite this, there are already early indicators of
changing police practices. Some licensees have
reported that police officers are “camping out” in
licensee parking lots, waiting to administer the
roadside ASD on patrons exiting
the establishment. In some cases,
police are allegedly sitting in pub
parking lots during the day as well
as at closing time. Licensees have
expressed concern that these
police practices may deter patrons
from their businesses. Licensees
are rightly asking whether there
is a legal solution to this dilemma.
The police operate with a broad discretion to
enforce the law, including the ARP regime. As
such, barring highly arbitrary actions that directly
harm the licensee, there is little that licensees can
do legally to change police practices. Further,
with respect to the driver, so long as the police
form a reasonable suspicion that an individual
has been consuming alcohol, they are entitled
to administer the roadside ASD test. In most
cases, it is likely that a police officer’s observation
of an individual entering a pub or bar for a
reasonable period of time and then leaving in a
car constitutes reasonable suspicion. Even if not,
the ARP regime leaves virtually no room to raise
the issue. Any such argument would have to be
made on a driver-by-driver basis.
The outcome of the Sivia appeal will therefore
have the most significant impact on police
practices enforcing impaired driving laws. If the
appeal is successful, then the ARP regime will
be invalid and police will return to using the old
Automatic Driving Prohibition regime, which
only contains penalties for drivers above 0.08%
blood alcohol content and requires police to test
drivers at a police station using the breathalyser
device. These requirements will very likely render
the police parking lot “camp out” impractical and
curb the practice.
However, if the Sivia appeal is unsuccessful, then
the “camp out” practice is likely to continue. The
best resort for licensees is therefore to construct
a due diligence regime to prevent patrons who
may be impaired from leaving the establishment
with the intention to drive.
Shea Coulson is a civil litigator at Gudmundseth Mickelson LLP with
expertise in liquor licensing and liquor distribution law, and is cocounsel
with Howard Mickelson, Q.C. on the Sivia appeal challenging the
constitutionality of the ARP regime.
The Publican
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