Impaired Driving Laws in BC - go2

The Ministry of Public Safety and Solicitor General reports that impaired driving is on the rise in British Columbia; it kills over 100 people and injures more than 3,000 each year. To address this issue, amendments to our Province’s Motor Vehicle Act (the “Act”) came into force on September 20, 2010. The Act now imposes stronger monetary and administrative penalties on impaired drivers with the goal of reducing the frequency of impaired driving-related accidents in the Province.

Changes to the Impaired Driving Laws

Under the new Act, the warn range and fail level remain the same as before; the warn range is 0.05 to 0.08, which reflects 50 to 80 milligrams of alcohol per 100 millilitres of blood, and the fail level is any amount above 0.08 (80 milligrams of alcohol per 100 millilitres of blood).

Although the warn and fail levels for impairment have not changed, the monetary and administrative penalties to impaired drivers have. With the changes to the impaired driving laws comes potential liability implications for licensed establishments.

Liability Implications for Licensed Establishments

Licensed establishments should continue to be aware of their responsibilities to patrons in monitoring consumption and ensuring that intoxicated patrons do not drive. If these establishments do not have effective measures in place, then liability could result.

British Columbia’s Liquor Control and Licensing Act requires licensed establishments to refuse to serve alcohol to intoxicated patrons and to refuse further service to patrons who become intoxicated. However, if a patron is served to the point of intoxication and subsequently causes harm to herself or third parties, the establishment will not necessarily be legally responsible for the harm suffered.

The courts have consistently held that there must be a foreseeable risk of harm to the patron or to third parties before fault will be imposed upon the licensed establishment; the mere fact of over-consumption does not give rise to such a risk. The courts typically look at all the circumstances on a case-by-case basis to determine whether the establishment should be held responsible. For example, if it is foreseeable that an intoxicated patron will be driving home from the establishment and the establishment fails to take reasonable steps to prevent the patron from driving, then the establishment could be liable for any harm that may result.

The new Act allows plaintiffs (and their lawyers) to argue that a higher standard of care now applies for licensed establishments. That is, lawyers will argue that impaired drivers – even within the warn range – pose a serious danger to public safety. Since patrons can reach the unlawful level of impairment after “just a couple of drinks” - establishments must more closely monitor consumption to ensure public safety.

It can be argued that the changes to the Act will likely not have a significant effect on the duties of licensed establishments. Over-consumption, by itself, is not enough to make an establishment liable for all harm caused by an intoxicated patron. Also, the former Act already imposed penalties for any driver found impaired at or above the warn range. What was unlawful before (driving at or above a 0.05) remains unlawful, only the penalties to impaired drivers have changed. The fact that penalties for impairment have increased does not justify a change in the standard of care expected of licensed establishments.

In order to protect against liability, the key is to train staff to monitor consumption and to inquire as to how an intoxicated patron may be getting home. Licensed establishments should continue to follow the best practices set out in the Serving It Right program which, in part, include the following advice:

Establish and implement written house policies to address all issues, including monitoring of consumption by patrons. All staff need to be trained upon hiring and employers should provide regular ongoing training for their staff.
To ensure proper implementation and compliance, regular meetings should be held with staff.
Consider promoting a designated driver program to promote customer safety.
Do not sell or give liquor to an intoxicated person or allow a person to become intoxicated.
Monitor the consumption of all patrons carefully, and take comments or concerns raised by other patrons seriously.
Follow up with intoxicated patrons who appear to be heading for a vehicle. If there is any doubt whether an intoxicated person has a safe ride home, call a taxi and be sure to watch the person get into the taxi.
Call the police if an intoxicated person insists on driving home.

By following the best practices, licensed establishments will be doing their part to help ensure the safety of their patrons and innocent members of the public. Aside from best practices, these establishments should also be aware of the penalties that impaired drivers now face.

The Penalties under the New Laws

(i) Warn Range

Before the changes to the Act took effect, a driver who provided a roadside breath test result in the warn range was given a 24-hour roadside suspension without monetary penalties – even for repeat offences. However, now a driver who provides a roadside breath test result in the warn range faces the following penalties:

For a first occurrence in a 5-year period, the driver will lose his or her driver’s license immediately for 3 days (instead of 24 hours). The driver may also lose his or her vehicle for 3 days and have to pay towing and storage fees of about $150.00. Further, the driver will have to pay a $200.00 administrative penalty and a $250.00 license reinstatement fee. The total cost will be about $600.00.
For a second occurrence in a 5-year period, the driver will lose his or her license (and possibly her vehicle by impoundment) for 7 days and the administrative driving penalty will increase to $300.00, plus the $250.00 reinstatement fee.
For a third occurrence in a 5-year period, the driver will immediately lose both her license and her vehicle for 30 days and the penalty will increase to $400.00, plus the $250.00 reinstatement fee. The driver will also be required to complete the Responsible Driver Program and use an ignition interlock device whenever she drives, for one year following the 30-day driving suspension. With the penalties, plus costs for towing, storage, the program and the device, the total cost will be about $3,650.00.

The Responsible Driver Program involves three options. The Superintendent of Motor Vehicles will choose the option which best addresses the driver’s situation:

A one-day education session in a classroom setting.
A 16-hour group counseling program, scheduled over a 3-month period.
A community-based alcohol-treatment program.

(ii) Fail Level

The penalties in the case of a driver who refuses a breath test or exceeds the 0.08 blood alcohol level are now more severe. An offender’s license will be immediately suspended for 90 days. She will also lose her vehicle for 30 days. The total costs to an offender will be about $3,750.00, made up as follows:

$500.00 for an administration fee;
$700.00 for towing fees;
$250.00 for the driver’s license reinstatement fee;
$880.00 to complete the Responsible Driver Program; and
$1,420.00 for an ignition interlock device which must be used for a full year after the driving suspension is over.

Offenders could also face criminal charges.

If drivers face a driving prohibition for driving impaired, they have the right to appeal their roadside driving prohibitions (i.e. the 30-day suspension if impaired at the warn level) to the Superintendent of Motor Vehicles, who will review each matter on a case-by-case basis.

Conclusion

The new impaired driving laws are further confirmation that drinking and driving will not be tolerated by society, and the new penalties imposed on drivers reflect this growing intolerance. The time is now for licensed establishments to educate themselves and their staff about the changes in these laws, and to ensure that they implement the best practices set out in the Serving It Right program.

For more information concerning best practices for licensed establishments and the changes to the impaired driving laws under the Act, please visit www.go2hr.ca, www.servingitright.com or www.ablebc.ca.