[Simnut]

Please keep in mind, I do NOT endorse drinking and driving by anyone, novice or "regular" drivers! It is the procedures....one way steps on the rights of the novice driver (yes, they do have rights), the other way is applying a charge that does not apply. Remember, the 24 hour prohibition (meaning you are prohibited from driving) was designed to take a driver off the road for 24 hours, NOT to create a 4 month suspension for a novice driver. Section 90.3 was legislated for that.

Section 90.3(2b) means to me, that IF a police officer pulls a novice driver (a driver that fits the description in section 25 (10.1))over, they are to demand a roadside test.

(2) A peace officer may, at any time or place on a highway or industrial road if the peace officer has reasonable and probable grounds to believe that a driver has alcohol in his or her body,

(a) request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road, and

(b) by demand made to that driver, require the driver to promptly provide a sample of breath that, in the opinion of the peace officer, is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, if necessary, to accompany the peace officer for the purpose of enabling that sample of breath to be taken.

This is stated quite clearly to me, and was brought into legislation with the GL Program. IF alcohol is detected, below .05, a 12 hour suspension is issued because of the zero tolerance policy.

Now, I've never said that a novice driver CAN'T be issued a 24 hour prohibition. If the novice driver blows OVER .05, issue the 24 hour prohibition! But the officer can now, because the officer DEMANDED the breath sample and the following does not come into play.

Section 215(6)
(6) If a driver, who is served with a notice of driving prohibition under subsection (2), forthwith requests a peace officer to administer and does undergo as soon as practicable a test that indicates that his or her blood alcohol level does not exceed 50 mg of alcohol in 100 mL of blood, the prohibition from driving is terminated.

It does not come into play because of this:

Section 215(6.2)
(6.2) Despite subsection (6), a driver who is served with a notice of driving prohibition does not have a right to request or undergo a test under subsection (6) if

(a) the peace officer who served the notice first performed a test of the driver's blood alcohol level with an approved screening device,

(b) the test indicated that the driver's blood alcohol level exceeded 50 mg of alcohol in 100mL of blood, and

(c) the peace officer used the results of the test as part of the basis on which the peace officer formed reasonable and probable grounds to believe that the driver's ability to drive a motor vehicle was affected by alcohol.

The course of events changes because the officer DEMANDED the breath sample, it wasn't requested by the driver. Section 215 permits a driver to be allowed to drive if a roadside test proves the driver to be below .05 if the driver REQUESTS a roadside test to prove "innocence". This is the problem I have. If a novice driver requests the roadside test, and blows below .05, is he/she allowed to drive? If not, and the officer issues a 12 hour suspension, the first charge is a moot point, right?

Do you see the difference? A major part of this is because of why the Superintendent of Motor Vehicles denies the appeals of the 24 hour suspension, and this applies if you're a novice or "regular" driver. If the OSMV denies appeals based on the fact that the driver has the right to request a roadside test, but failed to asked for it, and the officer did not refuse the test....the novice driver SHOULD be let go as stated on the reverse side of the notice. This means that the OSMV and the police endorse novice drivers driving with alcohol in their system. Now, if a police officer then tries to issue the 12 hour suspension, they are now using "evidence" that they should have asked for in the first place....because of the novice driver.

Three questions:

Does Section 215 of the MVA describe a driver that is allowed to drive with a BAC of below .05?

Does Section 90.3 describe a driver that must NOT have any alcohol in their system while driving?

Which charge is then applicable to the novice driver as a first step into the investigation?

It's actually, quite simple!


If the novice driver blows over .08, nail them with whatever tools are available.

Justice Louis LeBel argued that a driver's licence is not a privilege but a right. Anyone who meets the driving requirements, age and passes the required driving test is given a licence. There is no discretion to deny anyone a licence if the person meets the requirements.

Is driving a privilege or a right? Driving is a right as is the right to hold a driver’s licence. Like all rights, there are restrictions and limits. The Right to Drive is limited in that the government may specify qualifications that must be met by potential drivers, including that they maintain a respectable driving record.

If a driver meets all of the requirements to obtain a license, the government cannot restrict that person’s right to obtain a driver’s licence and drive. In such a case, an experienced lawyer can apply to the court to get an order forcing the government to give them a driver’s licence.