Drunk driving to be largely decriminalized in Alberta in 2018

[PepsiFree]

Originally Posted by Oling_Roachinen

With Bill 29, the same kid who lost his licence for a day because he has dilated pupils, would face 3 months, plus require an expensive breathalyzer device installed on his vehicle if he didn't want to lose his licence for another year at the discretion of the same officer who thought he was impaired. There's very little oversight, given that it's now simply the discretion of the officer without needing to provide evidence in court.

Except that he would have to be informed of his option to take a voluntary test (as put forth by one of the amendments in Bill 29) and would be able to appeal, which would have to overturn the ruling (if he was not offered a test or if the test proved negative).

That’s pretty strong oversight to me.

[Oling_Roachinen]

Originally Posted by PepsiFree

Except that he would have to be informed of his option to take a voluntary test (as put forth by one of the amendments in Bill 29) and would be able to appeal, which would have to overturn the ruling (if he was not offered a test or if the test proved negative).

That’s pretty strong oversight to me.

No, that's not correct.

There are multiple ways to get your licence revoked. You're hung up on the breathalyzer 2B, but that's not what I am talking about. That's a separate one.

(a) that a person operated a motor vehicle or had care or
control of a motor vehicle while the person’s ability to
operate the motor vehicle was impaired to any degree by
alcohol or a drug or by a combination of alcohol and a
drug;
(b) by reason of an analysis of the breath or blood of a
person, that a person operated a motor vehicle or had
care or control of a motor vehicle having consumed
alcohol in such a quantity that the concentration of
alcohol in the person’s blood exceeded 80 milligrams of
alcohol in 100 millilitres of blood at any time within 3
hours after operating or having care or control of the
motor vehicle;
(c) by reason of an analysis of the bodily substance of a
person, that a person has within 2 hours after ceasing to
operate a motor vehicle or ceasing to have care or
control of a motor vehicle a blood drug concentration
that is equal to or exceeds any blood drug concentration
for the drug that is prescribed by regulation under
section 253.1 of the Criminal Code (Canada);
(d) by reason of an analysis of the breath, blood or bodily
substance of a person, or any combination of them, that a
person has within 2 hours after ceasing to operate a
motor vehicle or ceasing to have care or control of a
motor vehicle a blood alcohol concentration and a blood
drug concentration that is equal to or exceeds the blood
alcohol concentration and the blood drug concentration
for the drug that are prescribed by regulation under the
Criminal Code (Canada) for instances where alcohol and
that drug are combined;
(e) that a person failed or refused, without a reasonable
excuse, to comply with a demand made on the person to
supply a sample of his or her breath, blood or bodily
substance under section 254 of the Criminal Code
(Canada) in respect of the operation or care or control of
a motor vehicle.

2A: Impaired driving. If the officer has a reason (or says he did) to pull you over for impaired driving and then has reason (or says he did) to believe you are impaired (not necessarily due to alcohol) he can revoke your licence for the 3 months + a year of requiring you to install a device on your vehicle. Ran over a skunk? Smell of marijuana is good enough. You just watched the live action Lion King movie and thinking of Mufasa's death and crying when you get pulled over? He can take away your licence because of red eyes. I gave myself a concussion facepalming how often I need to explain this, he can take away my licence if my eyes are dilated. Just a nervous-twitchy person who's never been pulled over before? Licence revoked for acting erratic.

2B: This is the breathalyzer. This is the one you keep going to. You don't need to do anything, you can be driving perfect, perfectly coherent, respectful to the officer but if you get in a checkstop and blow over, then you have your licence revoked. This is where you get the option for a second device, and if you blow under you get your licence back (although there's the 0.05 clause still around)

2C: This is a new one for drugs based on new procedures and testing coming out.

2D: Another new one for combination of drugs and alchohol. If I blow 0.05, I'm fine (in this section) but now if I have some THC, I fail this section.

2E: Failure to blow.

(2.1) The peace officer shall not take the actions set out in
subsection (2.2) where
(a) the person consumed the drug or alcohol or both after
ceasing to operate the motor vehicle or ceasing to have
care and control of the motor vehicle, and
(b) the person, after ceasing to operate the motor vehicle or
ceasing to have care and control of the motor vehicle,
had no reasonable expectation that the person would be
required to provide a sample of breath or blood.

This just means I can't get in trouble for impaired driving offences listed above if I wasn't driving unless I, for whatever reason, decided to have a drink while waiting for my breathalyzer ha.

(2.2) The peace officer shall, on behalf of the Registrar, (a) in the case of a person who holds an operator’s licence,
(i) require that person to surrender to the peace officer
that person’s operator’s licence, and
(ii) serve on that person a notice of suspension of that
person’s operator’s licence;
(b) in the case of a person who holds a licence or permit
issued in another jurisdiction that permits the person to
operate a motor vehicle, serve on that person a notice of
disqualification
(i) disqualifying that person from operating a motor
vehicle in Alberta, and
(ii) disqualifying that person from applying for or
holding an operator’s licence;
(c) in the case of a person who does not hold an operator’s
licence, serve on that person a notice of disqualification
disqualifying that person from applying for or holding an
operator’s licence.

This is saying if I commit any one of the previously listed offences, I have my licence revoked.

(c) in subsection (3)
(i) in clause (a)
(A) by striking out “(2)(b)” and substituting “(2.2)(a)”;
(B) by striking out “until the disposition of the criminal
charge referred to in subsection (2)(a);” and
substituting:
(i) for an immediate period of 90 days, and
(ii) following the expiration of the term in subclause
(i), for a further period of one year;

This is the change from the unconstitutional until criminal charges are dealt with to 90 days, plus either another year or I do courses and get my device installed.

(a) subsections (2.2)(a) and (3)(a) and (b), if the person to
whom subsection (2)(b) applies voluntarily attends
forthwith at a place designated by the peace officer and
accompanies the peace officer to that place, if necessary,
and undergoes a test using an approved instrument and
the result of that test indicates that the person’s blood
alcohol concentration is less than 80 milligrams of
alcohol in 100 millilitres of blood, the peace officer shall
forthwith return the person’s operator’s licence, if any,
to the person and the suspension of the operator’s licence and the disqualification from driving are
terminated;
(b) subsections (2.2)(a) and (3)(a) and (b), if the person to
whom subsection (2)(c) applies voluntarily attends
forthwith at a place designated by the peace officer and
accompanies the peace officer to that place, if necessary,
provides a sample of blood and undergoes a test or
analysis of that blood and the result of that test or
analysis indicates that the person’s blood drug
concentration is less than all the blood drug
concentrations for that drug that are prescribed under the
Criminal Code (Canada), the peace officer shall
forthwith return the person’s operator’s licence, if any,
to the person and the suspension of the licence and
disqualification from driving are terminated;
(c) subsections (2.2)(a) and (3)(a) and (b), if the person to
whom subsection (2)(d) applies voluntarily attends
forthwith at a place designated by the peace officer and
accompanies the peace officer to that place, if necessary,
and undergoes a test using an approved instrument and
provides a sample of blood and undergoes a test or
analysis of that blood and the result of the tests or
analysis indicates that the person’s blood alcohol
concentration and blood drug concentration are less than
the blood alcohol concentration and the blood drug
concentration for the drug that are prescribed by
regulation under the Criminal Code (Canada) for
instances where alcohol and that drug are combined, the
peace officer shall forthwith return the person’s
operator’s licence, if any, to the person and the
suspension of the licence and disqualification from
driving are terminated;

This is where, if I failed due to 2B, 2C, 2D (i.e. the ones with devices used), and I to the police station and take a test there and I "blow under" now I get back my licence. But please note that there is nothing here about 2A. I do not get to take another test if I lost my licence due to 2A, it's at the discretion of the officer, very subjective, and I need to appeal to the Registar.

(3.9) Despite subsection (3.7)(a), (d) and (g),
(a) if the result of the test referred to in those provisions
indicates that the person’s blood alcohol concentration is
equal to or greater than 50 milligrams of alcohol in 100
millilitres of blood but less than 80 milligrams of alcohol
in 100 millilitres of blood, the peace officer shall take
the action set out in section 88(2)(c), (d) or (e),
whichever is applicable in the circumstances,

Well, unless I still blow over 0.05 then I lose my licence for the current, 3/15/30 days.

[Oling_Roachinen]

PepsiFree the section 88 amendment that you posted previously was for the immediate roadside sanctions. Not 88.1. The immediate roadside sanctions is for blowing over 0.05. The full section and the approved amendment is here:

Immediate roadside sanctions
88(1) In this section, (a) “approved instrument” means a device that is designed to
receive and make an analysis of a sample of the breath of
a person in order to measure the concentration of alcohol
in that person’s blood and that is
(i) an approved instrument within the meaning of
section 254 of the Criminal Code (Canada), or
(ii) approved under this Act by the Lieutenant Governor
in Council to be used for the purposes of this section;
(b) “approved screening device” means a device that is
designed to ascertain the presence of alcohol in a person’s
blood and that is
(i) an approved screening device within the meaning of
section 254 of the Criminal Code (Canada), or
(ii) approved under this Act by the Lieutenant Governor
in Council to be used for the purposes of this section;
(c) “notice of disqualification” means a notice of
disqualification served under subsection (2);
(d) “notice of suspension” means a notice of suspension
served under subsection (2).
(2) Where
(a) a peace officer has reasonable grounds to believe that a
person drove a motor vehicle, and
(b) in relation to that person driving that motor vehicle, the
peace officer has reasonable grounds by means of analysis
of a sample of breath using an approved screening device
or approved instrument to believe that the person has
consumed alcohol in such a quantity that the
concentration of alcohol in that person’s blood is equal to
or exceeds 50 milligrams of alcohol in 100 millilitres of
blood,
the peace officer shall, on behalf of the Registrar,
(c) in the case of a person who holds an operator’s licence,
(i) require that person to surrender to the peace officer
that person’s operator’s licence, and
(ii) serve on that person a notice of suspension of that
person’s operator’s licence;(d) in the case of a person who holds a licence or permit
issued in another jurisdiction that permits the person to
operate a motor vehicle, serve on that person a notice of
disqualification
(i) disqualifying that person from operating a motor
vehicle in Alberta, and
(ii) disqualifying that person from applying for or
holding an operator’s licence;
(e) in the case of a person who does not hold an operator’s
licence, serve on that person a notice of disqualification
disqualifying that person from applying for or holding an
operator’s licence.
(3) Where
(a) a person’s operator’s licence is surrendered under
subsection (2)(c), that person’s operator’s licence is
immediately suspended and that person is immediately
disqualified from driving a motor vehicle in Alberta for a
period of
(i) 3 days, in the case of a first suspension or
disqualification,
(ii) 15 days, in the case of a 2nd suspension or
disqualification, and
(iii) 30 days, in the case of a subsequent suspension or
disqualification;
(b) a notice of disqualification is served on a person under
subsection (2)(d), that person is immediately disqualified
from driving a motor vehicle in Alberta for a period of
(i) 3 days, in the case of a first disqualification,
(ii) 15 days, in the case of a 2nd disqualification, and
(iii) 30 days, in the case of a subsequent disqualification;
(c) a notice of disqualification is served on a person under
subsection (2)(e), that person is immediately disqualified
from driving a motor vehicle in Alberta for a period of
(i) 3 days, in the case of a first disqualification,
(ii) 15 days, in the case of a 2nd disqualification, and
(iii) 30 days, in the case of a subsequent disqualification.
(4) For the purposes of subsection (3), a suspension or
disqualification is
(a) a first suspension or disqualification if a person has not
been subject to a previous suspension or disqualification
under that subsection within the 10-year period preceding
the suspension or disqualification,
(b) a 2nd suspension or disqualification if a person has been
subject to one previous suspension or disqualification
under that subsection within the 10-year period preceding
the suspension or disqualification, and
(c) a subsequent suspension or disqualification if a person has
been subject to 2 or more previous suspensions or
disqualifications under that subsection within the 10-year
period preceding the suspension or disqualification.
(5) On a 2nd or subsequent suspension or disqualification under
subsection (3), a person
(a) is required to complete a mandatory educational program
required by the Registrar,
(b) is subject to terms and conditions set by the Registrar on
that person’s operator’s licence,
(c) is subject to a review by the Board at the Registrar’s
discretion after the 2nd suspension or disqualification, and
(d) is subject to a mandatory review by the Board after the
3rd or any subsequent suspension or disqualification.
(6) Notwithstanding subsection (3), where the person voluntarily
(a) attends forthwith at a place designated by the peace
officer and accompanies the peace officer to that place, if
necessary, and undergoes a test using an approved
instrument, or
(b) forthwith provides a 2nd breath sample into an approved
screening device that is different from the device used for
the test under subsection (2)(a),
the purpose of which is to show the proportion of alcohol in the
person’s blood, and the result of that test indicates that the
proportion of alcohol in the person’s blood is not equal to nor
exceeds 50 milligrams of alcohol in 100 millilitres of blood, the
peace officer shall forthwith return the operator’s licence, if any, to
the person and the disqualification from driving is terminated.
(6.1) The peace officer shall advise the person of the person’s
right to voluntarily undergo a test referred to in subsection (6).

88.1 is completely separate. And posted in my previous post, giving the officer the power to revoke a licence for 3 months + simply by saying the person is impaired.

[PepsiFree]

Originally Posted by Oling_Roachinen

This is where, if I failed due to 2B, 2C, 2D (i.e. the ones with devices used), and I to the police station and take a test there and I "blow under" now I get back my licence. But please note that there is nothing here about 2A. I do not get to take another test if I lost my licence due to 2A, it's at the discretion of the officer, very subjective, and I need to appeal to the Registar.



Well, unless I still blow over 0.05 then I lose my licence for the current, 3/15/30 days.

You are still missing the amendment to 88 (roadside sanctions) - (6.1):

12 Section 88 is amended by adding the following after subsection (6):
(6.1) The peace officer shall advise the person of the person’s right to voluntarily undergo a test referred to in subsection (6).

Section 6 currently states:

(6) Notwithstanding subsection (3), where the person voluntarily
(a) attends forthwith at a place designated by the peace officer and accompanies the peace officer to that place, if necessary, and undergoes a test using an approved instrument, or
(b) forthwith provides a 2nd breath sample into an approved screening device that is different from the device used for the test under subsection (2)(a),
the purpose of which is to show the proportion of alcohol in the person’s blood, and the result of that test indicates that the proportion of alcohol in the person’s blood is not equal to nor exceeds 50 milligrams of alcohol in 100 millilitres of blood, the peace officer shall forthwith return the operator’s licence, if any, to the person and the disqualification from driving is terminated.

The bill has been amended so that, despite 2A, which you’re caught up on, you are to be informed of your right to voluntarily undergo a test.

It’s right there.

[Oling_Roachinen]

Originally Posted by PepsiFree

You are still missing the amendment to 88 (roadside sanctions) - (6.1):


Section 6 currently states:


The bill has been amended so that, despite 2A, which you’re caught up on, you are to be informed of your right to voluntarily undergo a test.

It’s right there.

That's not the right section dude. I already said so.

Subsection 6 of 88 is to do with blowing over 0.05.

88.1(2)(a) is its own thing.

With the last changes in 2012, Alberta Transportation explicitly stated that you would not lose your licence if you didn't blow over 0.05. This was despite the clause in the Criminal Code section 253 that gives police the option to lay criminal charges on someone who is impaired driving but blows under. Perhaps they were being too layman with their explanation, but it doesn't really matter at the section that gave them the power to revoke someone's licence was found unconstitutional and had to be changed.

With Bill 29, they are explicitly giving the police the ability to revoke someone's licence for 90 days, plus either a year or forcing them to install an expensive device on the vehicle, if the police determines they are impaired.

It all comes down to how they determine what constitutes "impaired driving" under 88.1 (2)(a). Sure, if someone is falling over drunk while doing the field sobriety test or starts counting to 10 after being asked to recite the alphabet backwards, I don't care if they blow 0.02, they should probably have their licence disqualified. But it's so ambiguous, and we've had within the last month, a report of a person who passed the field sobriety test and his breathalyzer, have his licence revoked for impaired driving because, and entirely because, his pupils were dilated.
https://globalnews.ca/news/3909249/c...nothing-wrong/
So if that's the benchmark for 2A, well that's a big concern. Right now it states "impaired to any degree by alcohol or a drug." It's pretty much giving full power to the officer. And it's not like before, where they would need to go to court to prove their claims. This all takes place on the side of the road.

[Oling_Roachinen]

PepsiFree here is the Traffic Act:
http://www.qp.alberta.ca/documents/Acts/t06.pdf

88 is roadside sanctions. It is entirely to do with blowing over 0.05 and giving the officer the ability to take away your licence for 3, 15 or 30 days depending on if you are a repeat offender. Adding the amendment there now forces an officer to tell the accused they have the ability for a second breath test. It's a good change, but it has nothing to do with what we are talking about. You are so lost dude ha.

88.1 is Alcohol-related administrative licence suspension. Bill 29 is changing it significantly. It's repealing large sections, and giving the officers the abilities discussed ad nauseam.

[Oling_Roachinen]

Like I get it Pepsifree. It's confusing. When Section 88 starts off with:

Immediate roadside sanctions
88(1) In this section...
But that's page PDF 96 of the online act.

88.1 starts off with:
Alcohol-related administrative licence suspension
88.1(1) In this section...
And that's PDF page 100 of the online act.
it's easy to see where your confusion is coming from but you are confused.

88(1) and 88.1 are not the same thing.

[Wormius]

Originally Posted by PepsiFree

You are still missing the amendment to 88 (roadside sanctions) - (6.1):


Section 6 currently states:


The bill has been amended so that, despite 2A, which you’re caught up on, you are to be informed of your right to voluntarily undergo a test.

It’s right there.

What test would you be voluntarily requesting if the cop suspected you were high on something besides alcohol?

[PepsiFree]

Originally Posted by Wormius

What test would you be voluntarily requesting if the cop suspected you were high on something besides alcohol?

According to this article, saliva roadside tests are under development, and there is a blood test for THC.

[Oling_Roachinen]

Which is dealt with in Section 88.1 Subsection 3.7. Which again, has nothing to do with Section 88.

(b) subsections (2.2)(a) and (3)(a) and (b), if the person to
whom subsection (2)(c) applies voluntarily attends
forthwith at a place designated by the peace officer and
accompanies the peace officer to that place, if necessary,
provides a sample of blood and undergoes a test or
analysis of that blood and the result of that test or
analysis indicates that the person’s blood drug
concentration is less than all the blood drug
concentrations for that drug that are prescribed under the
Criminal Code (Canada), the peace officer shall
forthwith return the person’s operator’s licence, if any,
to the person and the suspension of the licence and
disqualification from driving are terminated;

A person who has had their licence revoked on the roadside under Section 88.1 Subsection 2(c) due to TCH (or any other future legal limits) will have the opportunity to accompany the officer to a location to have their blood tested. Again, if they are found to be impaired by Section 88.1(2)(a) there is no recourse except appealing to the Registar.

Right now the proposed limits are:
THC concentration over 2ng or over 5ng in blood (limits proposed by the federal government). If that means anything to anyone.

Additionally, 88.1(2)(d) has a proposed limit of alcohol and marijuana combination of: Blood Alcohol Concentration over .05 and THC concentration over 2.5ng in blood (limits proposed by the federal government).

[PepsiFree]

Why would the bill include anything about needing a breathalyzer or blood test for any reason if an officer can just suspend based on the belief of impairment without any recourse?

[Oling_Roachinen]

Originally Posted by PepsiFree

Why would the bill include anything about needing a breathalyzer or blood test for any reason if an officer can just suspend based on the belief of impairment without any recourse?

In theory, to give an officer the ability to remove and punish other illicit substances. Or, potentially, those who can't handle their liquor in a sense. Some people at 0.4 should not be driving, even if legally (without the discussed clause) they are.

If I'm ####ed up on fentanyl, but I don't blow over because I haven't drank or done any weed, I should still receive the same impaired driving sanctions as those who drank.

The problem is, how does 88.1(2)(a) actually get administered. Prior, and even though unconstitutional for them to suspend your licence, it was through the court that you would be found guilty or not and you had a chance to defend yourself - even if it was a complete pain, and if you did indeed lose your licence until you were found not guilty (again, that had to be repealed because it was unconstitutional and Alberta Transportation explicitly stated you would not if you didn't blow over 0.05). The officer still had to enter evidence, provide field sobriety tests, and make a case against you for criminal charges. It's not something a vindictive cop would go through lightly as you don't want to go to the courts without some proof. Now though, if a cop determines you are impaired, you are punished all the same unless you successful appeal it, which we don't really know the burden of proof there if any.

Ideally, if someone fails a sobriety field test because they are impaired, having them punished for it makes sense. But then we do run into things like the person being found to be impaired because his eyes were dilated due to a medical condition.

[TorqueDog]

Originally Posted by PepsiFree

According to this article, saliva roadside tests are under development, and there is a blood test for THC.

Test kits for THC already exist. The problem is applying them properly to a check-stop "is this driver impaired" context, given how long of a detection time THC has in the body, even after the effects have entirely worn off.

If I consume cannabis (any method) before bed at 10:30 PM, and I wake up at 5:30 AM (which I do), I have zero psychoactive effects remaining. But an on-site saliva test (not conducted by a lab) can detect THC for up to 12 hours. It would need to be understood that the mere presence of THC in the saliva is not enough to determine intoxication.

Anyway, as you were.

[Ducay]

Originally Posted by TorqueDog

Test kits for THC already exist. The problem is applying them properly to a check-stop "is this driver impaired" context, given how long of a detection time THC has in the body, even after the effects have entirely worn off.

If I consume cannabis (any method) before bed at 10:30 PM, and I wake up at 5:30 AM (which I do), I have zero psychoactive effects remaining. But an on-site saliva test (not conducted by a lab) can detect THC for up to 12 hours. It would need to be understood that the mere presence of THC in the saliva is not enough to determine intoxication.

Anyway, as you were.

I agree completely with your argument. My counterpoint would be that the same argument was made with alcohol, but we've forged ahead with both the 0.05 and 0.08 levels regardless of "impairment" level. I'd say the analogy is closer to the 0.05 argument, so I wouldn't be surprised if some THC level is implemented to allow for roadside testing, without having to rely solely on field sobriety tests.

[iggy_oi]

Originally Posted by Ducay

I agree completely with your argument. My counterpoint would be that the same argument was made with alcohol, but we've forged ahead with both the 0.05 and 0.08 levels regardless of "impairment" level. I'd say the analogy is closer to the 0.05 argument, so I wouldn't be surprised if some THC level is implemented to allow for roadside testing, without having to rely solely on field sobriety tests.

It’s going to be a very complicated issue going forward because unlike alcohol, cannabis is also a prescription drug so there are people who will always have some level of THC in their system.

[Weitz]

Originally Posted by iggy_oi

It’s going to be a very complicated issue going forward because unlike alcohol, cannabis is also a prescription drug so there are people who will always have some level of THC in their system.

Not really sure how that’s relevant. You can’t drive if you’re on certain prescription drugs already. It won’t be zero tolerance just like alcohol isn’t.

[Oling_Roachinen]

The federal government, currently, is proposing a THC concentration of 5ng in blood or 2.5ng in blood and over 0.05 in BAC.

http://www.globaldrugpolicy.org/Issu...y%20092616.pdf

Here's just a random article arguing against it.


Colorado does use 5ng/ml. Not sure how that is working out for them.

[iggy_oi]

Originally Posted by Weitz

Not really sure how that’s relevant. You can’t drive if you’re on certain prescription drugs already. It won’t be zero tolerance just like alcohol isn’t.

Which prescription drugs are you not allowed to drive with if you have traces of it in your system?

[Weitz]

Originally Posted by iggy_oi

Which prescription drugs are you not allowed to drive with if you have traces of it in your system?

I meant some impair your ability to operate motor vehicles. And you can be charged with impaired driving. Check out Tiger Woods recent incident.

[Ducay]

I think the point is MJ, Alcohol, Xanax, etc. Whatever it is, you can't be impaired driving regardless of quantity or concentration.

The real argument is around THC's persistence in the system and concentrations that may exist without impairment and how that plays with any blood/THC level test for impairment (Regardless of actual impairment).