Under section 263.1 of Manitoba’s The Highway Traffic Act (“HTA”), police can immediately suspend your ability to drive. They can do so under three general “impairment by drug or alcohol” groups if you were operating a motor vehicle:
- Tiered Administrative Licence Suspension (“TALS”):
- You perform a physical coordination test and the police officer believes you are unable to safely operate a vehicle based on your performance;
- You fail a drug screening test;
- You fail a drug recognition evaluation and the police officer believes you were unable to safely operate a vehicle;
- Immediate Roadside Driving Prohibition (“IRP”):
- You blow a “WARN” on the Approved Screening Device (“ASD” or a “roadside device”);
- You have a blood alcohol concentration* between 0.05 and 0.79, but not with a blood drug concentration of over 2.5ng THC;
- Three Month Administrative Suspension (“3MAS”):
- Blood alcohol concentration equal to or over 0.08 (the criminal limit);
- You blow a “FAIL” on the ASD;
- Your blood drug concentration is over 5ng of THC;
- You have a combination of blood alcohol concentration of over 0.05 with a blood drug concentration over 2.5ng THC;
- Any detectable concentration of illegal drugs;
- You refuse to provide a sample or you refuse to perform physical coordination tests.
*Blood drug concentration is measured in mg of alcohol per 100mL of blood.
Police officers must tell you, before serving the suspension, that you can request to provide a second sample with another ASD, or a second sample with the same equipment in the case of a drug screening. You must make the request promptly. Your suspension is based on the lower of the two results, in the case of blood alcohol concentration, or your suspension can otherwise be overturned based on the result of the drug screening.
Although a TALS and IRPs are very similar in punishment, MPI requires different applications to review them, which is why I’ve separated them here.
LENGTH OF DISQUALIFICATION
Police will then disqualify you from driving for a period determined by section 263.1(7) of the HTA.
- TALS/IRP Length:
- 72 hours, if no one under 16 in car, and first TALS/IRP within 10 years;
- 7 days, if someone under age of 16 in car, and first TALS/IRP within 10 years;
- 15 days, if second TALS/IRP within 10 years;
- 30 days, if third TALS/IRP within 10 years;
- 60 days, if fourth TALS/IRP within 10 years.
- 3MAS: It’s hidden in the name — 3 months.
The registrar has the power to alter the length of suspension if the police can’t reliably find out at the time how many times you’ve run afoul of the law.
PUNISHMENT FOR ADMINISTRATIVE SUSPENSIONS
- Reinstatement Fee of licence ($50.00);
- Payment for towing and impound fees;
- Administrative Penalty ($400 to $700);
- A TALS/IRP will move you give you 5 demerits.
- If you receive two or more TALS/IRPs within a 10-year period, you will be required to complete an assessment of alcohol/drug use from the Addictions Foundation of Manitoba’s Impaired Driver Program ($625.00);
- If you find yourself under the 3MAS system, you will potentially face criminal charges, which carry their own significant costs (Michael Dyck, a partner at my law firm, has outlined the financial costs “Impaired charges” can bring here.)
FIGHTING THE SUSPENSION
MPI can either revoke the suspension, vary the suspension to a lesser time, or confirm the suspension.
In order to fight the suspension in the context of an MPI Review, you have to, within one year of being served the suspension, do the following:
- File an application for review (application forms reproduced below):
- Pay the prescribed fee:
- $50.00 for a written review;
- $100.00 for an oral hearing;
- Obtain a date and time for a hearing:
- Limited to 60 minutes;
- Conducted – at the time of this writing – over the telephone;
- Written hearing: within 10 days;
- Oral hearing: within 20 days;
- And if it hasn’t been done by the police on the roadside by some strange circumstances, you must also surrender your licence or permit.
MPI is not required to hold an oral hearing unless you request an oral hearing at the time of filing the application and pay the prescribed fees.
MPI will base their review decision on the police officer’s report, any sworn statements (like affidavits), a copy of any certificate of analysis, and the application and supporting evidence provided by you.
- MPI will not consider hardship in making their decision.
- You don’t get a copy of the police officer’s report automatically, unlike in criminal court, where police reports are regularly part of the Crown’s disclosure obligations. If you want to see the report yourself when arguing for the MPI Review, you need to make a Freedom of Information and Protection of Privacy (or “FIPPA”) request to the police agency. The information for making a request from the WPS is located here, under the first tab.
The evidence need only support the TALS/IRP/3MAS on a balance of probabilities (“more likely than not”, or “more than 50% likely”). This is different from a trial in criminal court, where the Crown is regularly required to prove its case beyond any reasonable doubt.
If you fail to appear at your oral hearing, you waive your right to have a hearing, meaning you automatically lose.
MPI must give their decision in writing.
If you win, and you had paid the administrative penalty, MPI must refund the administrative penalty. You will also be reimbursed the prescribed fee. If you hire a lawyer to assist you, you will not be refunded that cost.
An alternative to the MPI Review is the Licence Suspension Review Board (“LSAB”) – where hardship is considered – in order to secure conditional driving privileges. The condition is driving with the interlock ignition program.
Photo credit to why kei.
Scott Wilson 