HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 215.41 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, is amended

(a) in subsection (2) by striking out "In this section and in sections 215.42, 215.43 and 215.5," and substituting "In this section and in sections 215.42, 215.43, 215.47 and 215.5:",

(b) by repealing subsection (3),

(c) by adding the following subsection:

(3.1) If, at any time or place on a highway or industrial road,

(a) a peace officer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and

(b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver's ability to drive is affected by alcohol,

the peace officer, or another peace officer, must,

(c) if the driver holds a valid licence or permit issued under this Act, or a document issued in another jurisdiction that allows the driver to operate a motor vehicle, take possession of the driver's licence, permit or document if the driver has it in his or her possession, and

(d) subject to section 215.42, serve on the driver a notice of driving prohibition. , and

(d) in subsection (4) by striking out "subsection (3) (c) and (d)" and substituting "subsection (3.1) (c) and (d)".

2 Section 215.42 is repealed and the following substituted:

Right to second analysis

215.42 (1)  If an analysis of the breath of a person by means of an approved screening device under section 215.41 (3.1) registers a warn or a fail,

(a) the person has a right to forthwith request and be provided with a second analysis, and

(b) a peace officer must inform the person of that right before the peace officer serves on the person a notice of driving prohibition.

(2) A second analysis performed under this section must be performed with a different approved screening device than was used in the first analysis.

(3) If a person provides a sample of breath for a second analysis in accordance with this section, the lower of the first and second analysis results governs for the purposes of section 215.41 (3.1).

3 Section 215.43 is amended

(a) in subsection (1) by striking out "Subject to section 215.42 (3), if a person is served" and substituting "If a person is served",

(b) by repealing subsection (2), and

(c) by adding the following subsection:

(2.1) If a person is served with a notice of driving prohibition under section 215.41 in circumstances where

(a) an approved screening device registers a fail, or

(b) the person refuses or fails to comply with a demand as described in section 215.41 (4),

the person is prohibited from driving for a period of 90 days.

4 Section 215.46 (1) and (2) is amended by striking out "section 215.41 (3)" and substituting "section 215.41 (3.1)".

5 Section 215.47 is amended by striking out "and" at the end of paragraph (c) and by repealing paragraph (d) and substituting the following:

(d) a report, in the form established by the superintendent, sworn or solemnly affirmed by the peace officer, and

(e) in the case of a driving prohibition resulting from the analysis of a sample of breath, information relating to the calibration of the approved screening device on the basis of which the notice of driving prohibition was served.

6 Section 215.49 is amended

(a) by repealing subsection (1) (d) and substituting the following:

(d) any other relevant documents and information forwarded to the superintendent by the peace officer who served the notice of driving prohibition or any other peace officer, including peace officers' reports that have not been sworn or solemnly affirmed, , and

(b) by adding the following subsection:

(4) The superintendent may determine the weight to be given to any document or other information referred to in subsection (1), including any document or information that is not sworn or solemnly affirmed.

7 Section 215.5 is amended

(a) by repealing subsection (1) and substituting the following:

(1) If, after considering an application for review under section 215.48, the superintendent is satisfied that the person was a driver within the meaning of section 215.41 (1) and that,

(a) in respect of a 3-day, 7-day or 30-day driving prohibition,

(i) the person was advised of his or her right to forthwith request and be provided with a second analysis under section 215.42 (1),

(ii) the second analysis, if the person requested a second analysis, was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the notice of driving prohibition was served on the person on the basis of the lower analysis result,

(iii) the approved screening device registered a warn and registered the warn as a result of the concentration of alcohol in the person's blood being not less than 50 milligrams of alcohol in 100 millilitres of blood,

(iv) the result of the analysis on the basis of which the notice of driving prohibition was served was reliable, and

(v) in the case of

(A) a 7-day driving prohibition, the driving prohibition was a second prohibition, or

(B) a 30-day driving prohibition, the driving prohibition was a subsequent prohibition,

(b) in respect of a 90-day driving prohibition resulting from a sample of breath for analysis by means of an approved screening device and the approved screening device registering a fail,

(i) the person was advised of his or her right to forthwith request and be provided with a second analysis under section 215.42 (1),

(ii) the second analysis, if the person requested a second analysis, was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the notice of driving prohibition was served on the person on the basis of the lower analysis result,

(iii) the approved screening device registered a fail and registered the fail as a result of the concentration of alcohol in the person's blood being not less than 80 milligrams of alcohol in 100 millilitres of blood, and

(iv) the result of the analysis on the basis of which the notice of driving prohibition was served was reliable, or

(c) in respect of a 90-day driving prohibition resulting from a failure or refusal, without reasonable excuse, to comply with a demand described in section 215.41 (4), the person so failed or refused,

the superintendent must confirm the driving prohibition, the monetary penalty for which the person is liable under section 215.44 and the impoundment imposed under section 215.46 for the period specified in section 253. ,

(b) in subsection (2) by striking out "If, after considering an application for review under section 215.48 in respect of a 7-day or 30-day prohibition, the superintendent is satisfied that the person was a driver within the meaning of section 215.41 (1) and an approved screening device registered a warn," and substituting "If, after considering an application for review under section 215.48 in respect of a 7-day or 30-day driving prohibition, the superintendent is satisfied that the person was a driver within the meaning of section 215.41 (1) and as to the matters referred to in section 215.5 (1) (a) (i) to (iv),", and

(c) by repealing subsections (3) to (5) and substituting the following:

(4) If, after considering an application for review under section 215.48, the superintendent is satisfied that the person was not a driver within the meaning of section 215.41 (1) or that,

(a) in respect of a 3-day, 7-day or 30-day driving prohibition,

(i) the person was not advised of his or her right to forthwith request and be provided with a second analysis under section 215.42 (1),

(ii) the second analysis, if the person requested a second analysis, was not provided or not performed with a different approved screening device than was used in the first analysis or the notice of driving prohibition was not served on the basis of the lower analysis result,

(iii) the approved screening device did not register a warn or the approved screening device did not register the warn as a result of the concentration of alcohol in the person's blood being not less than 50 milligrams of alcohol in 100 millilitres of blood, or

(iv) the result of the analysis on the basis of which the notice of driving prohibition was served was not reliable,

(b) in respect of a 90-day driving prohibition resulting from a sample of breath for analysis by means of an approved screening device and the approved screening device registering a fail,

(i) the person was not advised of his or her right to forthwith request and be provided with a second analysis under section 215.42 (1),

(ii) the second analysis, if the person requested a second analysis, was not provided or not performed with a different approved screening device than was used in the first analysis and the notice of driving prohibition was not served on the person on the basis of the lower analysis result,

(iii) the approved screening device did not register a fail or the approved screening device did not register the fail as a result of the concentration of alcohol in the person's blood being not less than 80 milligrams of alcohol in 100 millilitres of blood, or

(iv) the result of the analysis on the basis of which the notice of driving prohibition was served was not reliable, or

(c) in respect of a 90-day driving prohibition resulting from a failure or refusal, without reasonable excuse, to comply with a demand described in section 215.41 (4), the person did not fail or refuse or had a reasonable excuse for failing or refusing to comply with the demand,

the superintendent must

(d) revoke the driving prohibition,

(e) cancel the monetary penalty for which the person would otherwise be liable under section 215.44 and, in respect of any impoundment, section 253 (8) applies, and

(f) if the person held a valid licence or permit issued under this Act to operate a motor vehicle at the time the notice of driving prohibition was served under section 215.41, direct the Insurance Corporation of British Columbia to return any licence or permit to operate a motor vehicle taken into possession by the peace officer or sent to the corporation.

Transition — direction to Insurance Corporation of British Columbia

8  Immediately after section 215.41 (3) of the Motor Vehicle Act is repealed by this Act, the superintendent must direct the Insurance Corporation of British Columbia to remove from the driving record of a person any notice of driving prohibition that was served on the person under that section, on or after November 30, 2011 and before the date that section is repealed by this Act, as a result of an approved screening device registering a fail.

Commencement

9  This Act comes into force on June 15, 2012.

 
Explanatory Notes

SECTION 1: [Motor Vehicle Act, section 215.41] is consequential to changes made by this Bill to section 215.47 of the Act and repeals and replaces section 215.41 (3) of the Act to address the British Columbia Supreme Court decision concerning that provision.

SECTION 2: [Motor Vehicle Act, section 215.42] requires a peace officer to inform a person of his or her right to a second approved screening device analysis and stipulates that the lower of the 2 analysis results prevails.

SECTION 3: [Motor Vehicle Act, section 215.43] is consequential to changes made by this Bill to section 215.42 of the Act and repeals and replaces section 215.43 (2) of the Act to address the British Columbia Supreme Court decision concerning that provision.

SECTION 4: [Motor Vehicle Act, section 215.46] is consequential to changes made by this Bill to section 215.41 of the Act.

SECTION 5: [Motor Vehicle Act, section 215.47] requires the report sent by a peace officer to the superintendent to be sworn and requires a peace officer to send to the superintendent specified information regarding an approved screening device.

SECTION 6: [Motor Vehicle Act, section 215.49] recognizes that peace officer reports may be sworn or unsworn and allows the superintendent to determine the weight to be given to matters the superintendent must consider on a review.

SECTION 7: [Motor Vehicle Act, section 215.5] adds new grounds for review of immediate roadside prohibitions.

SECTION 8: [Transition — direction to Insurance Corporation of British Columbia] requires the Superintendent of Motor Vehicles to direct the Insurance Corporation of British Columbia to remove from the driving record of a person a prohibition that was served because of a "fail" reading on a breath analysis on or after November 30, 2011, the date of the British Columbia Supreme Court decision declaring that part of the legislation to be invalid.