Govt. lawyers ask court to delay changes in B.C. drunk driving law

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A section of B.C.’s tough drunk driving law the B.C. Supreme Court ruled unconstitutional should stay in place until next June so provincial politicians can rewrite it, government lawyers argued in court Monday.

Crown attorney George Copley told Justice Jon Sigurdson legislators should also decide the fate of drivers already hit with an immediate 90-day license suspension and vehicle impoundment for blowing over the legal limit of 0.08 or refusing a breathalyser since the section came into force in September 2010.

That means an estimated 15,000 people punished through immediately enforced penalties would have to wait until June 30 to find out if they were getting their driving records wiped, licenses back and punishment-related costs refunded.

Sigurdson struck down the section in a Nov. 30 decision, and is hearing arguments on what that means for thousands already charged and when the ruling will kick in.

Penalties brought under the law for drivers who blow between 0.05 and 0.08 remain in place, as do Criminal Code provisions on drunk driving. Police have cut back on using formal impaired driving charges in favour of the new on-the-spot penalty regime.

Lawyers representing four drivers challenging the rules argued the section should be severed, or legally nullified, as soon as possible.

They said the court should order the government to reimburse drivers’ penalty fees and wipe their records clean of violations from the part of the law found to breach the Charter.

“If this unconstitutional law remains valid… for six months, and then the government does change the law and gets it right, that isn’t going to help the thousands of people charged under it,” lawyer Howard Mickelson said.

Mickelson said the Crown’s argument that legislators, not the court, should make retroactive charge decisions dodges the question of how to handle the plaintiiffs in the challenge and other drivers who have appealed through the Office of the Superintendent of Motor Vehicles or accepted punishment without a fight.

“That’s the government’s position: Too bad for you if you were caught in this.”

But Copley told Sigurdson the measure should remain in place, saying it has dropped the number of impaired drivers on B.C. roads as well as drunk driving deaths.

“There is a danger to the public if this legislation is not kept in force,” he said.

B.C.’s “effective impaired driving law” should not be touched, Copley added, until politicians can take time to carefully overhaul it in the wake of Sigurdson’s ruling.

“It’s better to freeze things right now in order to give the legislature an opportunity to respond to this court’s decision,” he said.

The court pegged fine and punishment-related costs stemming from the section's penalties at more than $4,000 per driver. The money is paid to the province and includes the initial $500 fine, the price of an interlock device and responsible driving classes, among other steps required.

That means the total cost of payments sought by the government from  B.C. drivers could be north of $50 million, if government statistics showing roughly 1,000 people charged for each of five months ending last January hold true for the rest of 2011.

The figure doesn’t include potential wages lost by workers who must drive to earn a paycheque but were unable do so after receiving a license suspension by police.

Such lost earnings, in addition to punishment costs, may be the subject of a class action lawsuit.

Lawyer Jeremy Carr, also representing one of the constitutional challengers, said he expects a class action lawsuit to be launched.

Solicitor-General Shirley Bond has said drivers blowing over 0.08 will be dealt with through penalties, such as a 24-hour driving suspension and possible Criminal Code charges, that were in place before the 2010 changes until the drunk driving law is brought in line with the court's ruling.

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