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Originally Posted by Erick Estrada
If you are careful why would you even worry about being over .08? There's no brownie points for you blowing 0.085 compared to the guy that blew 0.14. Once you eclipse 0.08 on the breathalyzer at the station it's party over for both of you the same as it should be.
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Not true. While there are minimum penalties in the DUI legislation that are designed to remove a lot of a Judge's ability to vary sentencing, leeway still exists. Your BAC, as well as other factors, can change the fine you eventually get. If you have 0.085 and are pulled over at a Checkstop, your sentence could be quite different than if you're 0.15 and pulled over because you're weaving in and out of your lane, and you threw up on the side of the road when pulled over. Also, if you're more than double the legal limit, the penalties go through the roof.
Quote:
Originally Posted by Olao32
Maybe someone with a legal background can explain this to me.
If this new law imposed at the provincial level truly does bypass due process, can someone not challenge it under the Canadian Charter of Rights and Freedoms at the federal level?
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You don't challenge provincial laws (or any laws, for that matter) at the "Federal level". What you're getting at is that the Constitution/Charter is the highest law in Canada and it supercedes provincial regulations. Legislation that violates the Charter will be amended/struck down/read down etc. The challenge is initiated at the Queen's Bench level (in Alberta), and could be appealed all the way to the Supreme Court.
The problem with the law, as I understand it, is that it doesn't allow any legal review of the roadside suspensions. It cannot be heard in front of a Judge or go through any administrative review. Eventually, the Alberta law will be given its day in Court and probably have similar results to the BCSC decision mentioned in this post:
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Originally Posted by VO #23
The B.C. laws have already been challenged, and the automatic roadside prohibitions for persons blowing over .08 was found by the court to be a Charter violation. The B.C. legislature has since adjusted those laws.
The same judge held that the .05-.079 bans were compliant with the Charter, as they were seen to be a reasonable limitation on Charter rights in the name of public safety.
It's important to remember that these decisions were made by the BC Supreme Court (equivalent AB court is the Court of Queen's Bench), not by an appellate court. Therefore the law is not binding on any other province, and probably would barely be regarded as persuasive. I think a really strong argument could be made that the .05 bans are an unreasonable limitation on Charter rights, and expect any jurisdiction with similar laws to have to consider this question in the courts.
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Who challenged the law? A public interest group? There's probably a 100% chance that section 1 override gets appealed to the BCCA. With this legislation springing up all over Canada I wouldn't be surprised to see the SC weigh in on this eventually.