Canadian DUI Laws in a Sticky situation.
About a year ago in Canada they instituted new tougher DUI laws, these new DUI laws have recently been determined by the high court there to be unconstitutional. However, since these laws have been put into place more than 15,000 people were fined and penalized for blowing over .08 or refusing breathalyzers. People might ask why is this a big deal, well under the now ruled unconstitutional law in Canada the police were acting as judge, jury, and executioner at these roadside checkpoints, and if they said you were DUI then you were DUI. There was no trial, no appeal, no chance for you to argue your case. Now that the law has been determined unconstitutional the government is facing criticism from these people's attorneys to reverse their penalties, pay back their fines, etc. There is also talk of thousands of civil suits against the government for this, the people who refused to blow have a particularly good argument. It will definitely be interesting to see how this whole situation plays out. The story is listed below thanks to the Canadian Press.
The Canadian Press
"VANCOUVER— A lawyer representing drivers caught up by a British Columbia law ruled unconstitutional wants fines and penalties repaid and the drivers' records wiped clean.
More than 15,000 drivers were fined and penalized after blowing over .08 at the roadside or refusing to blow.
Lawyer Howard Mickelson told B.C. Supreme Court Justice Jon Sigurdson on Monday that because the law is unconstitutional, everything that flows from it needs to be declared invalid.
"The law was invalid from the outset and those caught up have a right to redress," he told court.
Mickelson calls the request by the Superintendent of Motor Vehicles to leave penalties and fines in place "absurd," saying all the punishments resulted from the bad law.
All those drivers should have their records cleared and the fines repaid. That shouldn't only apply to those drivers who have signalled an intention to sue for remedy, he said.
"I believe all of them should enjoy the benefit of the declaration of invalidity and the same relief."
George Copley, the lawyer for the provincial government, said if the judge is going to order any redress, those who refused to blow at a roadside screening should be excluded.
Copley told Sigurdson that his own decision mentioned that Charter rights were breached only for those who failed the roadside tests and doesn't mention those who refused to blow, even though the penalties were the same.
He said there is a far more robust review for those who refused to provide a breath sample.
Earlier this month, Sigurdson ruled that a portion of B.C.'s year-old laws to crack down on drunk driving violated Charter protections against unreasonable search and seizure.
Sigurdson concluded drivers who blew over .08 in a roadside screening test were subjected to having their vehicles impounded and forced to pay up to several thousand dollars in fines without having recourse to a meaningful appeals process.
But the judge also upheld most of the law, including new punishments for those who blow over .05.
Mickelson said the decision must be read to be retroactive to 2010 when the automatic roadside suspensions were launched.
The government has said the law allowing automatic roadside suspensions has saved lives since the rules were enacted.
Jeremy Carr, a lawyer for other people caught by the police roadside suspensions, told Sigurdson that he has another 60 clients whose legal cases have been put on hold while the judge makes his decision.
B.C. Attorney General Shirley Bond has said that for now, the government will require police to return to the previous system of having drivers who blow over .08 at the roadside escorted to a police station. There, they will be asked to blow into a more precise breathalyzer machine, could be charged criminally and must be offered legal representation.
Bond has also said the government will take another look at the law to determine whether there is another way for drunk driving cases to be diverted from the courts without violating the rights of those accused."
As always if you or someone you know is being charged with a DUI in or around the Kansas City area contact our office in Overland Park, Kansas to speak with an experienced DUI attorney today.