Vancouver lawyer Sarah Leamon has been a defence lawyer for the better part of a decade and she's never seen anything like what happened in the Nelson area last week.
Her client—a B.C. woman—received an immediate roadside prohibition for being impaired, even though she was a passenger in the vehicle.
According to Leamon (who writes a column on Straight.com), the woman contacted her son to drive her home from a Christmas party. The woman and her husband had been consuming alcohol at the event.
The 22-year-old son has an “N” licence restriction, according to Leamon, which permits him to transport members of his immediate family in the car. He can also drive without supervision as long as he has no electronic devices, consumes no alcohol or drugs, and displays the “N” sign on the vehicle. (In the update below, Nelson police insist the motorist had an "L" licence restriction.)
Leamon told the Straight by phone that the trouble began when they arrived at a Central Okanagan RCMP police roadblock with the son at the wheel.
“The officer assessed the driver and was satisfied that he was dead sober,” Leamon said.
She added that because the woman was in the passenger seat, the officer felt there was a risk she might reach over and grab the steering wheel and take control of the vehicle.
So the mother was instructed to take a breath test, which she failed. She then received a 90-day roadside suspension and the family sedan has been impounded for 30 days.
“The officer actually included in his evidence that he decided not to investigate the stepfather because he felt that even though he had suspected him of drinking, he was far enough away from the steering wheel that there was no risk he would grab it and take conduct of the vehicle,” Leamon said. “I can’t wrap my head around it.”
She’s especially bothered that this occurred during the holiday season when partygoers are being encouraged to line up designated drivers if they’ve been consuming alcohol.
The woman is challenging the roadside suspension with RoadSafetyBC. One of the grounds for appealing, according to the B.C. government website, is if a person is not the driver and not in care or control of the motor vehicle at the time of the penalty. The tribunal will hear the appeal in early January.
“My experience on December 13, 2019, was deeply troubling,” the woman wrote in a statement submitted to the tribunal. “After trying to do the right thing and get a safe, sober ride home with my twenty-two year old son, I felt unfairly targeted by the officer at the roadblock we drove into.
"Both myself and my son felt uncomfortable, intimidated and shocked by everything," she continued. "It all happened so fast. Nothing was explained to us. Before I knew what was going on, our family vehicle was impounded and my license was prohibited. The effect that this has had on our family has been profound. My son is unable to get to work without a vehicle and my husband and I are struggling on a daily basis. This feels unfair.”
The Straight left a phone message with Cpl. Jesse O’Donaghey, media spokesperson for the RCMP’s southeast district. He hasn’t responded as of this writing.
Leamon said that the family is considering a range of different legal options.
"But the most immediate and pressing concern here is getting her life back to normal because the vehicle is impounded," she stated. "Everybody relies on it."
The Nelson Police Deparmtent has issued a statement declaring that one of its members conducted a check of a driver as part of the West Kootenay Integrated Road Safety Unit.
According to Nelson police, the driver had a Class 7 learner's licence—an "L"—and not an "N" licence. There were "two seemingly intoxicated adult passengers inside the vehicle".
Under the Motor Vehicle Act, a Class 7L licence holder must have one qualified supervisor 25 years of age or older sitting beside the driver in the front seat.
"The officer entered into an impaired care or control investigation and provided the front seat passenger with a demand," Nelson police stated. "A breath sample was obtained using a roadside screening device, which resulted in a fail. The woman, who was identified as the learner driver’s qualified supervisor was issued an Immediate Roadside Prohibition."
Police have since reviewed the file and have recommended that the 90-day immediate roadside prohibition be cancelled.
Road Safety B.C. will make a final decision.
In light of this new information Leamon still described the police's action as a "gross overreach".
Leamon informed the Straight that the family has been told by police that it can retrieve the vehicle.