VICTORIA — A class-action lawsuit challenging impaired driving penalties given out under B.C.'s tough new drunk driving law was filed in Vancouver Thursday.
The lawsuit says that, between Sept. 20 and Nov. 19, police officers throughout the province were negligent in their use of the roadside breathalyzer device that determines a driver's blood-alcohol level.
Legislation came into effect Sept. 20 that penalizes drivers whose blood-alcohol concentration is between .05 and .08. The reading is determined via a roadside breathalyzer that indicates "warn" if a person's blood-alcohol level is between those numbers.
The lawsuit alleges that up to Nov. 19, police used improperly programmed breathalyzers to determine the reading. That resulted in drivers being penalized when their blood-alcohol levels were below .05, said Michael Thomas, one of the lawyers who filed the lawsuit.
On Nov. 19, Victoria police Chief Jamie Graham, as chairman of the B.C. Association of Chiefs of Police traffic safety committee, recalled 2,200 roadside breathalyzers after RCMP lab tests found a margin of error in the devices. The RCMP found the units could indicate a reading over .05 when the driver was actually under it.
The units were recalibrated so that a "warn" reading is obtained if the driver blows .06, recognizing the potential machine error.
"The way the legislation is drafted, the public has to rely upon proper enforcement. Our allegation is that that wasn't done in this time period," Thomas said.
Police either improperly programmed the devices or failed to detect that they weren't programmed accurately, the lawsuit alleges. An estimated 170 people a week faced licence suspensions during the period, with penalties ranging from $600 to $4,060.
The minimum penalty is an immediate loss of licence for three days, a $200 penalty and a $250 licence reinstatement fee, and the likely loss of vehicle for the three days, plus towing and storage fees. That is for someone with one "warn" reading within five years. Penalties escalate for those with more.
In a class-action suit, one person sues on behalf of all the people who have similarly suffered. The lawsuit has to go to B.C. Supreme Court to be classified as a class-action suit before proceeding. That will likely happen within three months, Thomas said.
He will ask for repayment of costs incurred by people who were improperly penalized.
This week, Solicitor General Rich Coleman said the province is considering allowing drivers to appeal roadside penalties for impaired driving offences.
That would make no difference to the lawsuit, Thomas said.
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