On the front page of the Vancouver Sun on Monday (October 17) was the headline “Woman’s drunk-driving victory leaves little to celebrate.” When I first read it, it got my back up immediately. Given society’s stance on drunk driving and the fact that whenever a drunk driver seems to “get away with it”, I assumed that this was another attack on the justice system for failing to throw the book at a criminal. Instead, the opinion piece outlined a woman’s harrowing ordeal in trying to clear her name and overturning a 90-day immediate roadside suspension on review.

Kristen Debra-Lee Spencer received the suspension on October 31, 2010, after leaving a charity event she had organized. The officer who pulled Spencer over claimed that she admitted to having a drink the hour before being stopped and that she had refused to blow. After receiving the suspension, Spencer immediately left the scene and went to the local detachment, where police officers refused to give her a Breathalyzer test. She vehemently denied making a statement with respect to drinking and was unable to obtain the audio recording of her nearly two-hour encounter with the RCMP. When she applied for a review of the suspension, it was upheld by the adjudicator. She then applied for judicial review of that decision.

B.C. Supreme Court justice Mark McEwan found in Spencer’s favour and ordered a new hearing. He issued a scathing set of reasons for reaching his decision. He described B.C.’s anti-drunk driving scheme, enacted last year, as “seriously flawed” and said the review provisions are “handicapped by the fact that hearings are not in person, the evidence is not sworn, that there is no cross examination, and that imposes no duty on the officer to provide all the relevant material”. He ultimately found that the hearings lack “most of the means by which courts or other tribunals ordinarily discern the truth”.

Most astutely, Justice McEwan found it “highly anomalous that a person who challenges a speeding ticket may appear personally before an independent and legally trained judicial justice of the peace, while the often far more serious consequences of the ‘administrative prohibition’ provisions of the Motor Vehicle Act are adjudicated in this stripped down manner”.

These are all things well known to lawyers who represent those subjected to Immediate Roadside Prohibitions (IRPs). The changes to the Motor Vehicle Act have given complete discretion to police officers in how they deal with impaired drivers and have basically eradicated impaired driving charges in B.C. The blood alcohol limit for an IRP is lower than the 0.08 milligrams required to charge an individual under the Criminal Code. This means that someone who blows a warn can be given a three-day, seven-day, or 30-day prohibition. If you blow a fail, you’re given a 90-day prohibition. Your car can be impounded and you’ll be on the hook for the impound fees. You will have to pay for and take a Responsible Driving Program (approximately $1,000).

You will also need to pay for and install an interlock device in your car (approximately $1,730). The interlock device works as follows: in order to start your car, you have to provide a breath sample into the device. Your car’s engine will only start if the reading is below the prescribed limit. During the period you have the interlock, you must attend the installation centre every 60 days for the data to be downloaded and recorded from the device. At the end, you have to pay another fee to have the interlock removed.

It’s not worth the risk to drink and drive in British Columbia. For those who still do it, even if you don’t consider the safety of others on the road, perhaps seeing this long (and by no means exhaustive) list of consequences may stop you from driving after having had too many drinks.

However, for those who are less criminally culpable and are ensnared by this new regime, it can be a horrifying and frustrating experience. In my next entry in two week’s time, I’ll go through what an IRP review looks like and why this entire process is considered so unfair.

Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.