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An RCMP officer performs a breathalyzer test on a driver during a roadside check in Surrey, B.C., just before midnight on Friday September 24, 2010. The woman blew .05 and received an immediate three-day driving ban and a $200 fine. Strict new drunk-driving laws, now considered to be the toughest in the country, took effect in B.C. this week. (DARRYL DYCK/THE CANADIAN PRESS)
An RCMP officer performs a breathalyzer test on a driver during a roadside check in Surrey, B.C., just before midnight on Friday September 24, 2010. The woman blew .05 and received an immediate three-day driving ban and a $200 fine. Strict new drunk-driving laws, now considered to be the toughest in the country, took effect in B.C. this week. (DARRYL DYCK/THE CANADIAN PRESS)

Group considering appeal in drunk driving ruling Add to ...

A lawyer for a group of up to 80 people ensnared in British Columbia’s tough drunk driving laws says his clients are considering an appeal.

Jeremy Carr says he is pleased a B.C. Supreme Court justice has ruled the tough penalties and costs imposed roadside on drivers who blow over the legal blood-alcohol limit are unconstitutional.

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But he says he is disappointed that the judge also found lighter penalties for people who blow between .05 and .08 in a roadside test are valid.

“On one hand, I’m very happy with it,” said Mr. Carr, a Victoria lawyer who specializes in drunk driving cases.

“But on the other hand, we’re very disappointed. We believe very strongly we had an argument in regards to other issues that the court felt wasn’t strong enough.”

West Vancouver Police Chief Peter Lepine, president of the B.C. Association of Chiefs of Police, said the court ruling will have a significant impact on the way drunk drivers are handled by police.

Justice Jon Sigurdson ruled unconstitutional Wednesday the part of the law that gave police the authority to issue driving suspensions and have their vehicles impounded if a roadside screening test showed they were over the legal driving limit of .08.

In the past, drivers blowing over .08 in a roadside test would be asked to accompany the police officer to the station where they would be given a right to speak to a lawyer and then given a breathalyzer test, a more accurate assessment of their blood-alcohol content.

If they failed, they were charged with a criminal offence.

Under the new laws, the penalties were handed out without charges ever being laid. But Justice Sigurdson also found motorists had no recourse to challenge the readings, which were not recorded anywhere.

“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,” he wrote.

But Justice Sigurdson concluded the similar, but lighter penalties imposed on drivers who blew between .05 and .08 were justified. And he rejected the argument that the province had no jurisdiction to make the laws, that they trod on federal turf.

Solicitor General Shirley Bond said her government is pleased with the ruling and rather than appealing, she said she will act as soon as possible to make changes to ensure the penalties conform to the constitution.

Mr. Lepine suggested police chiefs are worried changes will dilute the bill.

“The bottom line for police at all levels in this province has always been that the Immediate Roadside Prohibition program saved lives,” he said in a news release.

“Today’s ruling will result in significant changes to the IRP and I look forward to working with (Bond) and her staff to make sure the voice of B.C.’s police officers is heard as those changes are negotiated.”

Mr. Lepine noted the court ruling comes as the holiday season – with its accompanying festivities – begins.

The release also noted a resolution by the chiefs’ group urging the province to keep the roadside program “in its current form until such time as additional data on public safety impacts is available.”

But Mr. Carr said relying on the roadside screening device as the sole justification for imposing the penalties and high costs is simply indefensible.

“There are so many ways that that screening device can give you a falsely high reading or can be inaccurate,” he said.

“But we never know, because it’s not like we get a ticket or anything printed from the machine.”

Mr. Carr said since the legislation came into effect, police have virtually stopped charging motorists criminally because the law gave them the ability to avoid the courts.

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