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FREQUENTLY ASKED QUESTIONS
A. IMPAIRED DRIVING LAW:
(1) "I've been
charged with impaired driving what do I do?"
(2) "I was in an accident and I've
been charged - what do I do?"
(3) "What are the implications for
me of being charged with "impaired driving", "driving
over 80 milligrams", "failure or refusal to provide
a breath sample" or other motor-vehicle related Criminal
Code offence?
(4) "Why am I being served with a
variety of different driving prohibitions"?
(5) "How do I appeal the 90-day Administrative
Driving Prohibition"?
(6) "The Criminal Charges: impaired
driving, driving over 80 milligrams of alcohol in 100 millilitres
of blood, failing or refusal to provide a breath/blood sample"
(7) What is an "IMPAIRED DRIVING"
charge?
(8) What is a "DRIVING OVER 80 MILLIGRAMS
IN 100 MILLILITRES OF BLOOD" charge"
(9) What is a "REFUSAL OR FAILURE
TO PROVIDE A SAMPLE OF BREATH" charge?
(10) "The Court Process: what to
expect along the way"
(11) What are the defences available
to an impaired driving case?
(12) "I
blew over 80 milligrams - shouldn't I just plead guilty?"
B. PERSONAL INJURY / ICBC CASES:
(1) What do I do if
I have been injured in an accident?
(2) What types of accidents can lead to
monetary compensation for me?
(3) What type of injuries has our firm
dealt with?
(4) What if I was injured before the accident
and the accident just made my injuries worse -- can I still collect
monetary damages?
(5) If I collect damages who pays for
those damages?
(6) How much is my injury worth? What
types of damages are there?
(7) How do I survive economically if I
cannot work after the accident and how do I pay for my medical
bills?
(8) Does ICBC have the right to send me
to a medical doctor and obtain my private medical information?
(9) Are the medical appointment that important:
Why can't I just settle my case?
(10) How do I pay the lawyer to help
me with my injury claim?
A. IMPAIRED DRIVING LAW:
(1)
"I've been charged with impaired driving what do I do?"
In the majority of cases a person/client has been
stopped by the police, taken to the police station (usually in
hand-cuffs), been given the opportunity to call a lawyer at the
station (usually duty counsel) and then the client has either
provided breath samples or refused to do same. In most (95%) of
the cases, after the provision of breath samples the police release
the client after serving him/her with a variety of documents (which
may include the following:
(a) a "Promise to Appear" or "Appearance Notice"
(which is simply a document that compels your appearance to court
(or to the police station) at a later date);
(b) a "24 hour suspension" (which is a
document that restricts/prevents you from driving for a period
of 24 hours from the time/date it was served upon you);
(c) a "Notice of Driving Prohibition"
(which is a document that tells you that the Provincial body responsible
for issuing driver's licenses or the Superintendent of Motor Vehicles
intends to prohibit you from driving a motor vehicle within in
B.C. for 90 days commencing 21 days after the service upon you
of this document);
(d) a "Certificate of Qualified Technician"
which on the bottom part reads "Notice of Intention to Produce"
which is a document that tells you what the actual blood alcohol
readings were when you provided breath samples at the police station;
and
(e) if you are especially unlucky then a "Notice
to Seek Greater Punishment" which means that the Police will
be asking the Crown Counsel to seek a stiffer penalty that the
minimum penalty if you are convicted of the charge.
If after your dealings with the police you have
been provided any of the above documents then your driving privileges
will be restricted and you may be subject to other criminal sanctions
(ie. a criminal record, fines, jail and driving prohibitions)
and you should immediately seek legal advice from us or other
qualified lawyers. Depending upon the documents that you have
been served by the police the jeopardy you face is different and
a lawyer can explain this to you. If you wish to know more about
dealing with the issue of driving prohibitions and the court process
in particular I encourage you to scroll down to question #5 and
#7 below which should answer some of your general questions about
appealing a 90 day driving prohibition and the criminal trial
process in general.
(2) "I was in an
accident and I've been charged - what do I do?"
If you have been involved in an accident as a driver
and there has been some degree of "alcohol involvement"
or "drug involvement" then different and additional
steps may be involved. In these cases despite whether you are
going to be charged criminally with driving-related offences you
may still need to deal with ICBC or other insurers about the fall-out
of the accident. In these cases you should again seek immediate
legal advice from us or another qualified lawyer BEFORE you provide
any statements to any parties, including the police, ICBC representatives,
other parties involved in the accident or anyone (including potential
witnesses for that matter). You need know that in order to get
your car fixed or seek compensation for personal injuries there
is a duty to report the accident to the insurer (which, in most
cases, is ICBC) and that that duty to report is time-sensitive
(in that it must be reported by law to ICBC shortly after the
mva). You need to know how to best report that accident. You need
to know what information is required from you by ICBC or another
insurer or police and what other information you are NOT REQUIRED
to provide to ICBC, other insurers or the police. We can explain
all of this to you when you contact us.
You should be aware that if you have been involved
in an "alcohol related accident" even though the police/Crown
may not charge you criminally for impaired driving the insurer
(ie. ICBC) can and will take a stiffer view of the situation and
may right from the start have a "hidden agenda" of attempting
to establish that either you or the owner of the vehicle involved
in the accident has/have breached your insurance contract with
them as an insured so that they (as the insurance company) can
refuse you insurance coverage or indemnities for third party damage
as a result. This may mean that ICBC will take some or all of
the following steps:
(a) NOT pay to fix the damage to your car or the
car you were driving;
(b) pay fix the damage to some of all of the damaged
cars (or other property, like hydro poles, damaged city culverts,
etc.) but seek recovery of that cost from you;
(c) if people are injured then the insurance company
may pay out the injury claims but seek recovery for monies paid
out by them from you or the owner of the car that you were driving;
and
(d) refuse to pay for your medical treatment or
honour your own personal injury case that resulted from an innocent
accident.
You need to know that every situation is different
and that different rules and considerations apply to each unique
situation and that we can help you though this. You should therefore
call us BEFORE you say something to either the police or ICBC
that you will later regret.
(3) "What are the
implications for me of being charged with "impaired driving",
"driving over 80 milligrams", "failure or refusal
to provide a breath sample" or other motor-vehicle related
Criminal Code offence?
If you are CONVICTED of impaired driving, driving
while over 80 milligrams in 100 millilitres of blood or refusal
to provide a breath sample, which are criminal offences under
the CRIMINAL CODE OF CANADA, then on a FIRST OFFENCE basis you
face a MINIMUM penalty at law which is: $600 fine, a victim fine
surcharge (regularly 15% of the $600 fine), one year long DRIVING
PROHIBITION for anywhere in Canada, and of course, a CRIMINAL
RECORD. You should be aware that a second or subsequent conviction
for a criminal code driving-related offence (ie. impaired driving,
dangerous driving, etc.) brings stiffer sentences including minimum
jail/custodial sentences. A refusal charge carries the same penalties
at law as an impaired driving charge.
It is important to note that just because you are
being charged with impaired driving it does not mean that you
will be convicted of a Criminal Code impaired driving offence.
Sometimes criminal charges though requested by the police are
not proceeded with by the charging body, or the Crown Counsel's
office. Sometimes other (non-criminal) charges are substituted
for criminal charges after negotiations between the parties. This
is sometimes done as early as your first court appearance or as
late as part-way through your criminal trial but before the judge
has rendered as verdict. If the Crown can be convinced, at any
stage of your matter, to proceed with the matter under the MOTOR
VEHICLE ACT (which is a BC regulatory act) and not under the CRIMINAL
CODE (which is a Canada-wide federal statute) then the minimum
sanctions outlined above DO NOT APPLY. If the Crown can be convinced
to proceed in a non-criminal manner then the Crown, defence lawyer
and Court can come up with a sentence which is less than the minimum
penalty above and regularly involve a smaller fine and/or no driving
prohibition or a lesser driving prohibition. We call this plea-bargaining.
The charges regularly agreed to as a "lesser included"
charge are charges commonly referred to as "driving without
due care and attention" under the Motor Vehicle Act (or section
144(1)(a) of the Motor Vehicle Act. You should be aware that though
plea bargaining is possible in every case it does not regularly
happen unless the defence lawyer can show the Crown that their
case has some weaknesses or holes in it that would make it unwise
or unfair to proceed in a criminal fashion.
You should be aware that if you are convicted of
a criminal code motor-vehicle related offence (ie. impaired, refusal,
driving over 80 milligrams) and if the minimum sentencing provisions
apply (ie. criminal conviction, fine, driving prohibition) then
as a result you will have NO insurance coverages available to
you through ICBC or other insurers. In effect any criminal conviction
for these types of offences is almost always equivalent to a breach
of insurance and ergo a loss of insurance coverages and/or losses
of indemnities that might otherwise (absent a conviction) be available
to you or others. (To check on the insurance issues presented
by a conviction you should review the provisions of the Insurance
(Motor Vehicle) Act)
(4) "Why am I being
served with a variety of different driving prohibitions"?
This is probably the most common question I get
asked in the morning after phone call. There is no simple way
to explain this to the layman. Regularly in an impaired driving
investigation the police will immediately serve a client at least
two different driving prohibitions (ie. a "24 hour prohibition"
along with a "Notice to Seek a Driving Prohibition under
section 94.6 of the Motor Vehicle Act"). Later, if convicted
by the courts of impaired driving or if you plead guilty to impaired
driving (under the Criminal Code) then the Court (and the Superintendent
of Motor Vehicles) may impose the minimum or additional driving
prohibition of one year or more. Thus one is faced with at least
THREE driving prohibitions resulting from the police investigation:
(a) a 24 hour driving prohibition;
(b) a 90 day Administrative driving prohibition; and
(c) if convicted (at a later date) a ONE YEAR driving prohibition.
Why so many prohibitions? The short answer to this
query is that there are TWO separate government bodies involved
in monitoring your driving privileges and each has their own powers
granted to them, and each body acts separately and apart from
one another (although at times they do communicate with one another).
The two competing bodies are: (1) the Provincial body that governs
driver's licensing and driver's safety on the highways within
the Province of BC which is called the Office of the Superintendent
of Motor Vehicles (or "SMV" for short); and (2) the
Criminal Justice System, including the Ministry of Attorney General
along with the B.C. Courts. (or the "Courts").
The SMV is involved in and concerned with driver's
safety on highways within the Province of British Columbia. When
we apply for our driver's license we complete our driving tests
and apply for a driver's permit from the SMV. The SMV then, amongst
other things, monitors how many violation tickets we receive from
the police and thus constantly engages in risk safety assessment
on behalf of the public, including ICBC. If the SMV believes that
a licensed driver's road record (ie. driver's safety record) requires
corrective measures then they may require any driver to undergo
additional training or be prohibited from driving for a period
in order to encourage proper road safety habits.
Part of road safety within the Province of B.C. obviously involves
keeping drunk drivers off the road as they are a safety risk to
themselves and others using the roadways within the Province.
Under sections 215 and 94.1 through 94.6 of the Motor Vehicle
Act (www. .com) the SMV has the power and obligation to serve
the public's road safety needs by imposing driving prohibitions
through their agents, the police.
Thus the first driving prohibition is the 24 HOUR
PROHIBITION or a "one day" driving prohibition. This
is served by the police on a person/client so that after they
process a drunk driver at the police station, that person/client
does not return to his/her car in their drunken state and continue
to drive. This prohibition makes sense if you think about it.
The police regularly release impaired drivers from the police
station after the provision of samples. Those persons sometimes
feel wrongly accused and will, in effect, convince themselves
to go back to their cars and continue their drive homeward (or
wherever). These people are considered to be a risk and thus the
SMV have the police prohibit them for a short period, ie. 24 hours,
so that they can in effect "sober up". (It is not only
those who are "arrested and processed as an impaired driver"
who can be subject to this type of prohibition - in fact 24 hours
prohibitions can be given by the police to any driver who is merely
suspected of being drunk and without further investigation being
done by the police).
The second driving prohibition is what is commonly
referred to as the 90 DAY ADMINISTRATIVE DRIVING PROHIBITION.
This type of prohibition came into effect in the mid to late 1990s
as a tightened response by the Provincial Government of the day
to deal with both the death toll and the heightened ICBC rates
being caused by drunk drivers on the roads in B.C.. The government
in Ontario had passed a similar law/legislation in that Province
that was later challenged in the courts and abandoned by the legislators.
In effect this prohibition was added by our B.C. government as
a weapon in the SMV's arsenal to fight drunk drivers. Back in
the mid-1990s it was not uncommon for an impaired driving case
to take 10 to 13 months get to trial This 90 day prohibition was
thus meant to give drunk drivers a timely and immediate penalty
resulting from their actions rather than having them wait for
any penalties that might be meted out by the criminal courts.
The legislative regime is set out in section 94.1 to 94.6 of the
Motor Vehicle Act (www. .com). In effect what happens is that,
upon ARREST (not conviction) of someone suspected of impaired
driving (or refusing to provide a breath/blood sample) the police,
as agents for the SMV, serve the "Notice of Driving Prohibition
under section 94.6 of the Motor Vehicle Act" on that person.
That paper notice serves as the suspect's driver's license for
21 days (which following the service of a 24 hour prohibition
has obviously been already limited for at least 24 hours). Any
person who is served with a Notice of Driving Prohibition under
section 94.6 of the Motor Vehicle Act must immediately (within
7 days of being served the document) take steps to appeal this
Notice or else they will automatically and without notice be prohibited
from driving a vehicle on any road, street or highway WITHIN the
Province of British Columbia for a period of 90 days AFTER the
expiry of the 21 day waiting period (or 21 days after the service
of the document). Even if a person appeals this prohibition there
is, in my experience, usually little likelihood of success in
the appeal and that person will more likely than not be subject
to the 90 day driving prohibition. Thus, merely by appealing that
prohibition, it does not mean that you will not have to serve
it. But you must appeal to the 90 day prohibition within the required
time in order to at least have any chance of re-gaining your privilege
to drive during that 90 day period.
The third prohibition is one that is meted out by
the courts upon conviction or plea to a criminal charge or a PROHIBITION
FROM DRIVING PURSUANT TO SECTION 259 OF THE CRIMINAL CODE. This
is a prohibition that the Court system imposes upon a person convicted
of a Criminal Code impaired driving offence pursuant to the court's
upholding the criminal law. The criminal law is concerned with
the actions and omissions of all Canadians and the correcting
of anti-social or anti-societal behaviour within Canada. One of
the things that the legislature in Ottawa says is illegal is "impaired
driving" or the "refusal to provide breath samples"
upon the reasonable request of a peace officer. The Criminal Code
is legislation that is passed in Ottawa and not in BC and as such
it is the law that all Canadians equally must face together. The
legislators in Ottawa have passed very strict minimum penalties
for this criminal offence including the imposition of a MINIMUM
penalty for those convicted in a criminal court of impaired driving
or refusal. That penalty includes a ONE YEAR minimum driving prohibition
if a person is convicted of a driving-related Criminal Code offence.
Unlike the first two driving prohibitions noted above, this third
prohibition ONLY occurs if/when a person is either convicted of
the criminal offence by the courts or if they plead guilty to
driving-related Criminal Code offence (including impaired driving,
driving over 80 milligrams of alcohol in 100 millilitres of blood,
dangerous driving, hit and run, etc.). If a person is convicted
of impaired driving then the Courts have an obligation to impose
AT LEAST the minimum penalty and if the Court does not impose
the minimum penalty then in effect the Court's themselves would
be breaking the law. Thus this third penalty arises out of the
Court's obligation to follow the law that has been set down by
the legislators in Ottawa.
One thing that you should be especially aware of
in relation to ALL THREE DRIVING PROHIBITIONS is that they are
all very important. Each of them must be taken seriously. If you
breach any of them by driving and then get "caught"
doing so then the penalties in many ways are more severe than
an actual conviction for impaired driving itself. The minimum
penalty at law for what is termed "driving while prohibited"
is a seven day jail sentence, $300 fine and a one year driving
prohibition.
One last thing to keep in mind is that a driving
prohibition is not the same as a driving "suspension".
One's driving privileges can be suspended, revoked or not renewed
but that person is not necessarily "prohibited" from
operating a vehicle on a road in B.C. This distinction is important
to those who for whatever reason choose to drive without renewing
their license but who may not be "prohibited" at law
by the Courts or the SMV from operating a vehicle on any roadway
in B.C. and different penalties apply. We, of course, do not condone
such action but are alive to the fact that it does go on within
the Province of BC by some people who choose to drive regardless
of their actual driving status.
If you would like more precise details about the
nature of these prohibitions then we ask that you call our office
to discuss same. Obviously this is much too complicated and complex
to explain in simple terms here.
(5) "How do I appeal
the 90-day Administrative Driving Prohibition"?
This is not difficult. If you are reading this you
will most likely already have had your actual physical driver's
permit card with your picture on it seized by the police and you
will already have been served by the police with a document entitled
a "Notice of Driving Prohibition under section 94.6 of the
Motor Vehicle Act". That document replaces your physical
driver's permit and effectively serves as your physical driver's
license for 20 days after its service upon you. In order to appeal
the 90 day driving prohibition all you need to do is to attend
to the Motor Vehicle Branch or an ICBC Driver's Services Center
(ie. where you apply for your driver's license and pay fines)
along with your document entitled "Notice of Driving Prohibition
under section 94.6 of the Motor Vehicle Act", tell the clerk
at the front desk that you wish appeal the license prohibition
and fill out the necessary form for the review to be initiated.
The form for reviewing (or appealing) a 90 day driving prohibition
is available at the Driver's Services Centre and is not complicated
to fill out. The form initiating the review/appeal MUST BE FILLED
OUT AND DELIVERED/FILED at the Driver's Services Centre within
SEVEN (7) DAYS of being served the "Notice of Driving Prohibition
under section 94.6 of the Motor Vehicle Act", which is usually
within 7 days of your initial dealings with the police or your
actual impaired driving incident. If you do not compete and deliver
this form within this 7 day requirement you may be barred from
appealing the prohibition. (** NOTE: there are still steps that
you can take to extend the 7 day time limit but you should seek
legal advice to find out how this should/can be done).
The document that you will fill out at the Driver's
Services Center to appeal the 90 day driving prohibition is called
an "Application to Review a Driving Prohibition" and
a copy can be found at (www. .com)
If you are going to do the appeal yourself then
you need not contact our offices prior to submitting this form.
If you wish for our offices to become involved and represent you
for your review before the SMV then you MUST contact us PRIOR
to submitting the Application to Review a Driving Prohibition
as you will need to obtain our available dates for the oral or
written review. We are extremely busy lawyers and if you set a
date for your appeal when we are not available then it may be
difficult for us to change that date so it is important that you
seek our instructions prior to your submitting the Application
for Review IF you want us to actually represent you. If not then
you can fill out and submit the form on your own and without seeking
our prior instructions.
Please note that the review/appeal can be done either
ORALLY (ie. over the phone at the lawyer's office on a date/time
specified by the SMV) or IN WRITING (ie. by a written submission
prepared in advance of a certain date and forwarded to the SMV
by post or fax). You must make your selection of how you want
your review conducted when you fill out the Application form at
the Driver's Services Centre.
Immediately after you submit your Application for
Review the clerk at the Driver's Service Center will either provide
you with some disclosure materials (ie. a small police report
regularly filled out by the arresting officer) while you are in
the office or later by mail or fax. Once you have this information
available (which we lawyers call "Disclosure") then
you can either bring it to our office or fax it to us and we can
provide you with our FREE legal opinion as to whether your appeal
has merit or not. You should call us after you review your Disclosure
from the SMV as sometimes we can find technicalities for you that
may work to your benefit in your appeal. (** PLEASE NOTE: if you
want us to become involved in your review it is up to YOU to call
us and arrange a meeting to retain us to perform the review, however
sometimes this can be done merely by our agreement over the phone)
Our office generally charges a small fee to actually
conduct your review for you but you can choose to perform the
review without us by yourself for free. Our opinion as to the
merits of your appeal/review are usually free of charge.
(6) "The Criminal
Charges: impaired driving, driving over 80 milligrams of alcohol
in 100 millilitres of blood, failing or refusal to provide a breath/blood
sample"
Under the criminal law, depending upon your unique
driving circumstances, you may be charged with a variety of different
charges. Each charge has unique elements that the Crown Counsel
(prosecutor) must prove in order to secure a conviction. Every
case will be different and each person may be charged differently
depending upon what the prosecutor feels he/she can prove. The
charges may be one of the following:
(a) impaired operation of a vehicle;
(b) driving while over 80 milligrams of alcohol in 100 millilitres
of blood;
(c) failure or refusal to provide a breath/blood sample;
(d) dangerous operation of a motor vehicle;
(e) failing to remain at the scene of an accident (Hit & Run);
or
(f) criminal negligence.
If someone (a passenger in your car or another car
or an innocent pedestrian) has been injured or worst yet dies
as a result of your driving then the Crown will sometimes add
an additional element to your charge, so that you become charged
with "impaired driving causing bodily harm" or "dangerous
driving causing death" or "criminal negligence causing
death".
Obviously the more serious the consequences which
have been caused by your actions the more serious the charges
will be to reflect your apparent actions. The seriousness of the
charge is reflected by the added elements (ie. "causing bodily
harm" or "causing death"). If the consequences
of your actions are more serious (ie. bodily harm or death) then
obviously any judicial sentence announced (after plea or trial)
will consequentially be more serious (ie. jail time!)
You need to seek our advice or that of a qualified
lawyer to explain them to you. What follows is a simple explanation
of some of the usual or normal charges where alcohol is involved:
(7) What is an "IMPAIRED
DRIVING" charge?:
The basis for this charge is that you actually operated
(ie. actually drove) or had care or control (ie. you were in the
driver's seat of the car and assuming the position of the driver
but sometimes without actually moving the car) while your ABILITY
to operate a car was impaired by the previous consumption of alcohol.
If you are charged with this offence then the Crown will attempt
to prove the charge by eliciting incriminating evidence of the
following:
a. observations of your operation of the vehicle
(ie. your driving pattern à swerving, moving violations,
etc.)
b. observations made (by the police or others) of
your physiology that might be indicative of alcohol impairment
(ie. your physical symptoms of impairment à smell of alcohol
on breath, bloodshot eyes, balance problems like swaying or staggering
while walking outside your car and in the police station, difficulty
with fine motor coordination [in for instance retrieving your
license or insurance papers], slurred or incoherent speech patterns,
and other factors) and
c. any verbal admissions that you made that would
indicate that you were impaired by alcohol (ie. "Can't you
just give me a break", "I drank way too much but I only
have to drive 2 blocks to get home", etc).
The Crown must prove though all of the evidence
that your ability to operate a motor vehicle was impaired by alcohol
at the time you were actually driving or in "care and control"
of the vehicle. This charge has a largely "subjective"
component as it involves observations made by various witnesses
of you at the relative time and the inferential conclusions that
might be drawn from these observations.
(8) What is a "DRIVING
OVER 80 MILLIGRAMS IN 100 MILLILITRES OF BLOOD" charge":
The basis of this charge is that you operated or
had care or control of the vehicle while the concentration of
alcohol in your blood (or what is termed your "BAC")
exceeded 80 milligrams of alcohol in 100 millilitres of blood.
This charge regularly arises after the police have obtained samples
of your breath or blood and the measurement of those samples exceeds
the standard set by the legislature (ie. 80 milligrams of alcohol
in 100 millilitres of blood). In Canada, provided your ability
to operate a motor vehicle is not affected by alcohol, you are
permitted to drive a motor vehicle with up to 80 milligrams of
alcohol in 100 millilitres your blood. That is to say that it
is not illegal to drive after having consumed some alcohol but
it is illegal to drive after your level of alcohol in your blood
exceeds those national standards.
Just how much alcohol that is depends upon many
factors including:
(a) obviously the quantities and types of alcoholic
beverages consumed by you;
(b) the timing of the consumption (ie. prolonged
drinking over time or a large number of drinks over a short period
of time);
(c) your weight at the time of consumption;
(d) whether you were on special medication that
inhibited or accelerated your metabolism;
(e) whether you consumed food with the beverages
consumed; and
(f) your tolerance to alcohol (ie. are you a "light-weight"
so that alcohol remains in your body longer or are you a heavy
drinker where alcohol is eliminated by your body faster than the
average social drinker).
In many cases the police will obtain samples of
breath from a driver either at the police station with the use
of a breathalyzer instrument/machine or else at the roadside with
the use of an "approved screening device". All these
instruments do is translate breath samples taken into them into
a blood/breath ratio. Only the breath samples taken at the police
station can be used by the Crown as accurate measurements of your
actual BAC. Sometimes, and usually in cases where there is an
accident, samples of breath cannot easily be taken (as the client
is being treated at the hospital for injuries). In those cases
the law permits the police (provided requisite measures have been
met) to obtain actual blood samples from a client. Thus, on occasion,
blood samples are used as proof of a client's BAC.
To secure a conviction on a "driving over 80
milligram" charge the Crown must be able to put proof of
the client's BAC before the court and that proof must be substantial
enough to show the BAC was over 80 milligrams at the time that
the client was driving a vehicle. This charge therefore has a
largely "objective" component to it in that it is, on
its face, proven by science and the provision of physical samples
of blood or breath.
This charge is thus similar to, but not the same
as "impaired driving". Because it is so similar to impaired
driving a rule at law has developed so that the Courts cannot
convict you of both charges at the same time. Much like a thief
who after a bank robbery would only be convicted of either theft
or possession of stolen property (ie. the money), the Courts in
a case of a person driving while impaired by alcohol or driving
with more than 80 milligrams of alcohol in their blood will effectively
drop one of the convictions by judicially staying one charge at
the conclusion of a case if a person is subject to a conviction
on both counts.
(9) What is a "REFUSAL
OR FAILURE TO PROVIDE A SAMPLE OF BREATH" charge?:
The basis of this charge is that someone (who is
usually a driver) was requested by a peace officer to provide
a sample of their breath or sample of their blood but that that
person unreasonably failed or refused to provide breath samples
to the police.
The criminal law provides that, provided certain
requirements are met or shown by the police to exist, then a person
MUST submit to a breathalyzer request made by them. Sometimes,
for instance at a roadblock the police request a driver to provide
a sample of breath into a handheld device commonly referred to
as a "roadside screening device"or "approved instrument".
Other times the police ask for a driver to come with them to the
station to provide samples of breath into an actually breathalyzer
instrument. The failure to provide samples upon the request of
the police, including the failure to accompany the police so that
they can take samples, barring a reasonable excuse, is an offence
at law.
If you think about it if refusing to provide a sample
of breath was not a criminal offence then anyone to whom the police
lawfully made a request would simply refuse to do so. Thus Parliament
has placed an obligation on those whom have been lawfully requested
to provide breath or blood samples to do just that by making that
"omission" to do something required or him/her unlawful.
The failure to provide a sample upon a request by the police is
a criminal offence that carries criminal sanctions which are the
equivalent of driving while impaired or driving over 80 milligrams.
The basis of a refusal charge is unlike an over
80 milligram charge or an impaired charge. In essence your choice
to refuse a breath demand is different that your choice to drive
while impaired and the Court recognizes this distinction. If you
are charged and convicted of both charges then two separate convictions
can and will result.
(10) "The Court
Process: what to expect along the way"
This section applies to all criminal charges and
not just impaired driving charges.
If you are charged with impaired driving, driving
over 80 milligrams or refusal (or for that matter dangerous driving
or hit and run) then normally you will be tried in BC Provincial
Court. In order to understand the nature of the criminal trial
process I urge you to visit another website that has been set
up by the Criminal Justice System
Sometime it will become apparent that the charges
are more serious than simple impaired driving or driving over
80 milligrams. The degree of seriousness and consequences has
been discussed in a brief way in question#6 above. Where the charges
are of sufficient seriousness or where the Crown feels that circumstances
warrant (like for instance with a constant and/or repeat criminal
or impaired driving offender) then the charges may be proceeded
with by a trial in BC Supreme Court.
The decision on whether the charges are serious
enough is left to the Crown and is not subject to review by the
accused. If the Crown indicates that the charges are serious enough
then the Crown will proceed by what is called an "Indictment"
instead of in the regular course (or by what is called by "Summary
Conviction"). If the Crown elects to proceed by Indictment
then the accused can choose (or elect) to have his trial heard
by a Judge or by both a Judge and Jury. It should be noted that
jury trials for simple impaired cases are EXTREMELY rare and only
occur in unique circumstances. Most (and in my experience about
95%) of simple impaired cases are resolved at the Provincial Court
level.
The criminal trial process entails many appearances
both by the accused and/or his counsel. What follows is a short
summary of the nature of these appearances.
(a) The FIRST COURT APPEARANCE:
When you first had dealings with the police, if
you are expected to be the subject of criminal charges then you
were most likely served with a document called an "Appearance
Notice" or a "Promise to Appear". Before you are
released by the police (at roadside or at the police station after
the provisions of breath samples or refusal of same) they usually
serve you one of these documents. Essentially when you signed
that document (or when it was served upon you by the police officer)
you agreed to come to court on the date mentioned in that document.
Therefore you should read that document very carefully and find
out what date you have agreed to appear in court and mark it down
on a calendar so that you do not forget it.
If you forget your first appearance date and do
not show up at court on the date and time specified then a warrant
can and likely WILL be issued for your arrest. If this happens
then you can be subject to re-arrest and to being held in custody
unless and until the Court determines whether you should be released.
This can be quite a hassle as you may be later arrested on a Friday
and held until the following Monday with nothing to eat but a
cheese sandwich and nothing to sleep on but a one inch mattress
in a secure cell with a toilet courtesy of the famed "Grey
Rock Hotel". (Oh … I forgot to tell you … you may
be sharing a cell with a drug addict, pimp, pusher or dangerous
sex offender). Suffice to say it is best to either show up for
your first appearance or arrange to have a lawyer show up on your
behalf.
At the first appearance you will have to put aside
about 1 to 1 1/2 hours. You appear in a very busy courtroom sometimes
referred to as an "Initial Appearance Room" (or an "IAR").
Immediately outside the courtroom is a typed court list with the
names of various accused on it. Check to see if your name appears
on the list and the number that appears to the left of your name
as your matter may be called or referred to by both the number
and/or your name.
At the IAR there is a Prosecutor and a Justice of
the Peace present. The Prosecutor is in charge of "calling
the list" or designating which of the possibly 100 or 200
court files (yes you are a "file") gets called in which
order. Essentially if you show up without a lawyer you are given
low priority and your name will eventually be called in open court.
You must wait until your name is called before any further steps
can be taken.
When your name is called you must come forward and
identify yourself to the court. Once that is done it is customary
for the Justice of Peace or the Prosecutor to ask you what you
want done with your matter. At this point in time my advice to
you is to ask the Court and the Prosecutor for: (1) a copy of
the Police Particulars (which is a term of art the meaning of
which I will outline later) and (2) for an adjournment of at least
two weeks so that you can obtain the advice of counsel. (PLEASE
NOTE: please note that if you have discussed your matter with
me in advance of the first appearance then I will give you a precise
date/time to adjourn the matter to so that I can attend at the
next appearance for you). At your request the Court will regularly
provide you with your two week adjournment and the Prosecutor
will provide you with a copy of the Police Particulars and you
will be given a date to return to court for your next appearance.
Sometimes when you attend the courthouse for your
first appearance you will attend at the courthouse only to find
that your name does not appear on the court list. If this happens
then you should attend with your Promise to Appear to either/or
both the Prosecutor's office and the Court Registry and ask the
staff there for further directions. Sometimes you will need to
wait for your name to be added to the court list (so that it can
be called by the Prosecutor in the IAR) and on other occasions
you will be advised that charges have not yet been approved which
means that you may have to be re-summonsed to court or will not
be charged at all. If your name does not appear on the list do
not leave the courthouse without clearing up WHY it is not on
a court list and with some assurance from the Crown Counsel involved
that you can leave the courthouse without being subject to a further
warrant for your arrest.
PLEASE NOTE: it is not imperative that you have
counsel with you (by your side) on your first appearance. About
85% of the people attend court will not have a lawyer with them
at their first appearance. The reason that counsel do not attend
with their clients is because very little is accomplished at the
first appearance other than adjournments of appearance dates and
the dispensing of the Police Particulars to an accused.
(b) AFTER YOUR FIRST APPEARANCE/ REVIEWING THE POLICE
PARTICULARS:
At your first appearance if you have followed my
above then you will have your Police Particulars in hand and will
have a date and time to return to court for your second appearance.
At this point in time you should make an appointment with our
office to come in with your Police Particulars so that they can
be reviewed by competent counsel.
The Police Particulars (or "particulars"
for short) are simply a bundle of documents that are provided
to you by the Crown that set out the precise nature of the case
against you. In our criminal justice system the Crown Counsel
is not entitled to a trial by ambush. Rather they must furnish
to an accused all relevant and readily available evidence so that
an accused person will know the nature of the charges against
him and the details of the case to be presented against him/her
if he later elects to proceed to trial.
The Particulars on a regular impaired driving or
refusal charge usually entail some or all of the followings:
(a) The Information (which is a legal name for the
"Charge Sheet") which shows the charges against you;
(b) The Report to Crown Counsel: this is usually
several pages long and is a summary of the involvement of all
of the police officers who had dealings with you during the police
investigation. This is essentially a summary of the case to be
presented if the matter proceeded to trial;
(c) The notes of the investigating officers. During
a police investigation all of the police officers who dealt with
you usually take notes in their notebook which mark out significant
events including the timing and rough details of various parts
of the investigation. In the regular impaired case you will get
the notes of the investigating police officer as well as the officer
who conducted the breath samples (sometimes referred to as the
"Breathalyzer Technician");
(d) The Report to the Superintendent of Motor Vehicles. When the
police charge a person they regularly (and within 24 hours) are
supposed to fill out a 2 to 3 page report and fax same to the
Superintendent of Motor Vehicles. This Report forms the basis
for the 90 day driving prohibition which is discussed elsewhere
above;
(e) The Certificate of Qualified Technician. This
is the document that tells you the results of your breath tests;
(f) The Breath Test tickets. In cases where you
have provided samples of breath at the police station the breathlalyzer
instrument automatically prints out tickets which are important
to your case;
(g) Other service documents: 24 hour suspension,
Promise to Appear, Notice of Driving Prohibition, etc.; and
(h) Other document relevant to your case including
hand-written or typed witness statements (if civilian witnesses
were following and/or observed your driving and demeanour/symptoms
of impairment) or other standard police reports like the RCMP
report C-256 or investigation reports or hardcopies of actual
911 calls or police broadcasts.
Every case will have different particulars. What
is important to note is that NO defence counsel worth his salt
can give you an opinion about your case without having reviewed
these particulars. When you bring these particulars to me I will
read through them to determine the weaknesses and/or strengths
of the case to be presented against you. The particulars are basically
the blue print to the vault of your case. I will need to spend
some time reviewing them (and sometimes have to request the Crown
to produce additional reports) before I can really give you a
legal opinion about the merits of your case. Once I have read
over the particulars I can really start informing you about the
options that may be available to you including strategies in how
to handle your case. This opinion is regularly offered free of
charge to all interested or potential clients.
(c) SECOND APPEARANCE or ARRAIGNMENT HEARING:
It is ONLY after your lawyer has reviewed the particulars
that he can provide you with a legal opinion regarding the strength
of you defence. I will need to review them before we choose to
move forward on your case.
If you choose to have me represent you on the criminal/impaired
driving matter then I will ask you for a retainer which is a monetary
amount (the nature of which can be discussed between us) which
is placed in our firm's trust account under your name. The retainer
is placed into trust as good faith that you intend us to represent
you and is used to fund legal work that may be done regarding
your defence between the first appearance and the trial date.
After settling on the retainer we will attend either
with you or for you on your second court appearance.
At the second appearance, if we have determined
that a trial MAY BE necessary then there will likely be an "Arraignment
Hearing". An Arraignment Hearing is a short hearing held
before a judge (or in some cases a Justice of the Peace) which
is held in open court. The purpose is threefold: (a) for the court
to sort out what additional disclosure might be required of the
Crown for the Defence; (b) for the issues to be narrowed between
the parties including the determination of the number of potential
witnesses that might be called and the admission of uncontroversial
evidence between the parties; and (c) for the court to determine
the length of time that might be required to hear the trial so
that it can be scheduled with efficiency.
Prior to attendance at this hearing both the Defence
and Crown must prepare a written report and file this with the
Court at or before the Arraignment Hearing. The reports are largely
formalistic and standard and are available online at www. .com.
After the Arraignment Hearing you will be sent by
the court to the Judicial Case Manager's Office (or the JCM's
office) which is at a location within the Court building. At the
JCM's office the JCM has a computer system that shows the court
availability, the police witness availability and the Crown availability.
The JCM is a Justice of the Peace who sets the trial dates after
taking into consideration everyone's availability dates. Usually
in a case involving an "OVER 80 MILLIGRAMS" charge I
will employ a forensic toxicologist for the Defence. This expert
is usually necessary in cases where an accused indicates to me
that he had consumed far less alcohol than was indicated by the
breath tests. The forensic toxicologist that I regularly employ
is very busy and travels throughout the Province (and country)
as an expert witness. His schedule is VERY LIMITED and when your
trial date is set we must take into account the expert's schedule
as he regularly books 6 months to a year in advance of a trial.
If his time is not booked by the time that the JCM sets the trial
dates then there is no likelihood he will be available for your
trial.
As indicated the JCM sets the trial dates for your
matter and he/she will adjourn you directly to those dates.
The court system is set up so that it is run very
efficiently. In order to ensure that the trial matter is actually
going to proceed on the trial date that is scheduled in EVERY
CASE the JCM will also set another date in addition to the trial
date for the accused and his counsel to appear in court. This
date is called a Trial Confirmation date.
(d) The TRIAL CONFIRMATION DATE:
As indicated this is a date that is regularly set
by the JCM about 4 to 8 weeks before your trial date. It is basically
a short court appearance that is required to be made at the court
in the month or two before the trial so that the Court can confirm
that every party has their ship in shape and is ready to go to
trial. I refer to this date as "roll call" because very
little happens at this hearing.
At or before the Trial Confirmation date the defence
must file a written report with the court. This report is called
a "Trial Confirmation Report" and can be found at
www.yourlegalbutler.com.
After the filing of this report it is very difficult
to secure any adjournments for the trial of your matter. Therefore
it is our practice that we, as counsel, must be fully retained
to perform all of the work necessary for your trail by this date.
I do not make any exceptions for any clients on this difficult
issue. In order for me to be confident in your defence I have
to be confident that our retainer is fully paid.
If the accused does not show up for this court appearance
then a warrant can and will issue by the court for his/her arrest
so any accused/client should make sure to note this date on a
calendar with a view on attending court for "roll call".
(e) The TRIAL DATE:
The trial date is rarely changed after the Trial
Confirmation Date. Sometimes, however, owing to the court's other
commitments or due to thoroughness your case cannot be completed
in the time necessary. If that happens then at the end of the
court day (which is regularly 4:30 pm) your trial will be adjourned
for continuation. If this happens then all parties re-attend at
the JCM's office to re-set the continuation date on a date convenient
to all parties including the Crown, Court, Defence and various
witnesses.
(11) What are the defences
available to an impaired driving case?
A logical question always pondered by prospective
clients. Every case differs depending upon the facts of the case.
We can discuss this when I review your particulars. If you are
interested in some of the cases which show some of the technicalities
available then I urge you to visit the following webpage to read
up on this area of law.
(12) "I blew over
80 milligrams - shouldn't I just plead guilty?"
If there is just too much to risk - your job - your
family - your ability to travel unimpeded you may want to ensure
that all of the basis are covered before you enter any guilty
plea. This is why I encourage you to read up on the cases that
we have done for others and understand the complexity of these
charges.
The short answer to this question is that the breathalyzer
and the technicians trained to operate them BOTH make mistakes.
A simple thing like an undetected burp within 15 minutes prior
to performing a breath test can throw off the breathalyzer so
as to make any reading obtained by it to be unreliable. A mistake
by the officer in not providing you with your lawyer of choice
at the police station can lead to inadmissible breath test evidence.
A clever cross examination of the investigating officer can show
weaknesses in the Crown case that can lead to an acquittal or
a deal with the Crown.
It is very rare that my clients either plead
guilty to an "over 80 charge" or are found guilty by
the courts. In any event I would not recommend that you plead
guilty without obtaining proper legal advice from a qualified
lawyer.
B. PERSONAL INJURY / ICBC CASES:
(1) What do I do if I
have been injured in an accident?
At the accident scene you should attempt to do as
follows::
- ensure your safety and seek medical help where necessary;
- if you are able then obtain the FULL details of all other parties
involved in the accident, including their names, addresses, telephone
or email contact numbers, birthdates, driver's license numbers,
license plate numbers, insurance details (name and policy number
of other driver's insurer, especially if the other driver is not
insured with ICBC);
- if you are able then obtain the FULL names, addresses and telephone
or email contact numbers of ANY witnesses to the accident; ask
the witness what he/she saw and obtain a statement if possible
from them about the details of the accident from their point of
view;
- DO NOT admit any responsibility for the accident (a qualified
lawyer may be able to help you determine whether in fact you are
completely or partially at fault later and if appropriate then
an admission of liability can be made);
- DO NOT immediately move your car from its resting position as
the resting location of the vehicle may help to later determine
liability (ie. who's at fault for the accident); if you have a
camera with you (many cellular phones have cameras these days)
then you should document the damage (of all vehicles involved)
by photograph; it is also a good idea to take photographs of the
other parties as that might later help identify them to ICBC,
the police and/or our Process Server (if legal action later becomes
necessary).
- obtain the names and badge numbers of any police officers or
emergency personnel that are investigating/attending the accident;
- if you are a driver involved in a motor vehicle accident in
British Columbia then you have a duty to report this accident
to your insurer (usually ICBC) and if the damages in the accident
are over $1000.00 then under the provincial legislation governing
motor vehicles (ie. the Motor Vehicle Act [www. .com] you have
an obligation report it to the authorities (ie. the police);
- before you provide ANY information to the police or ICBC you
have the right to speak with a legal representative of your choice;
DO NOT get bullied into providing a statement to either the police
or ICBC without first exercising your right to consult with a
legal representative; we are to speak with you after an accident
on a 24 hours a day basis;
- NEVER depart the scene of the accident without at least attempting
to identify yourself to the other parties involved (which may
include the owners of vehicles or personal property which may
have been damaged in the accident) or the authorities; you should
know that if you depart the accident scene without attempting
to locate the owners/drivers or injured parties that ICBC may
refuse to cover the damages to the vehicles involved (or refuse
to cover you for other third party damage); of course it is not
not always possible to locate the other parties to your accident
and, especially if you are injured and taken from the accident
scene by ambulance you may not even get a chance to locate the
other parties,
- AS SOON AS YOU CAN you should contact a qualified lawyer to
help you with the process of instituting a claim for damages with
the relevant insurance companies that may be involved; this will
involved the lawyer helping you report the claim and helping you
fill our the appropriate documentation for medical/rehabilitation
and/or wage loss benefits;
- YOU SHOULD BE AWARE that our telephones are answered 24 hours
a day 7 days a week including holidays.
(2) What types of accidents
can lead to monetary compensation for me?
If you have been involved in an accident that is
the fault of someone else and you have been injured as a result
then you may a case against the person at fault for their "negligence".
If you or a loved one has suffered personal harm or injury, death,
wage loss, care costs, future loss of earnings or even medical
expenses as a result of the accident then you may be entitled
to monetary compensation. Some of the types of accidents that
can lead to monetary damages are as follows:
(b) Car accidents;
(c) Pedestrian accidents;
(d) Public transportation (Bus or Taxi) accidents;
(e) Motorcycle accidents;
(f) Bicycle accidents;
(g) Boating accidents;
(h) Skiing accidents or other sporting accidents;
(i) Slip & fall accidents; and
(j) Dog/Animal bites.
It is not the type of the accident that is important
in order to seek compensation but rather a determination of fault
or the negligence or another party that causes your injury that
is important in order to claim financial compensation for "personal
injury". So if you are involved in a motor vehicle accident
(mva) and someone else is at fault for the accident then you may
have a case against the other driver for personal injury. Or for
instance you slip & fall in a premises (say a grocer store
where there was a puddle of milk on the floor) and there was inadequate
warnings or measures put in place by that owner to prevent the
injury then you may have a case for damages against the owner
of that store. Or if your neighbour's pit bull terrier knocks
you down and chews you up (and that dog is known to be dangerous)
then you may have a case for damages against the owner of that
dog (ie. your neighbour).
There is an endless amount of accidents that could
have been prevented from happening in the first place, or situations
where the damages caused could have been lessened if a driver,
owner/occupier, pet owner or whoever, took effective and immediate
precautions to avoid the accident. The law recognizes that those
who suffer harm owing to the fault or negligence of another is
entitled to fair compensation. The amount of that compensation
will depend upon several factors.
Our law firm handles ALL types of circumstances
that lead to injuries including: motor vehicle accidents, bus
accidents, pedestrian accidents, bicycling accidents, boating
accidents, skiing accidents, slip & falls, dog bites, etc.
(3) What type of injuries
has our firm dealt with?
In my years of practice I have dealt with many different
types of injuries caused by accidents including but not limited
to the following:
a. Brain injuries: from headaches to traumatic brain
injury;
b. Spinal cord injuries;
c. Loss of movement;
d. Loss of limbs,
e. Internal organ damage;
f. Loss of eyesight, hearing or other sensation;
g. Dental loss or TMJ problems;
h. Scarring;
i. Fibromylagia;
j. Complex Regional Pain Syndrome injuries;
k. Psychological injuries, including PTSD, Depression and/or Anxiety;
l. Whiplash;
m. Neck and back injuries;
n. Shoulder injuries: including Thoracic Outlet syndrome, frozen
shoulder, torn rotator cuffs;
o. Broken bones;
p. Knee injuries, including torn ACL, patellar pain, dislocations;
q. Hip and joint injuries;
r. Chronic Pain syndrome; and/or
s. Other oft tissue injuries.
(4) What if I was injured
before the accident and the accident just made my injuries worse
-- can I still collect monetary damages?
Many times as we get older we injury ourselves doing
simple things like gardening or sports or simply walking on uneven
surfaces. Sometimes the effects of those injuries stick with us
but are later aggravated or made worse by another accident that
is not our fault. In those types of cases you can still seek compensation
for the additive affect of the subsequent accident that caused
you injuries and that were not your fault. Therefore just because
you were previously injured does not mean that you do not have
case for personal injury against the responsible party. Sometime
people are injured in one car accident and weeks or months later
they are injured in another accident. In those cases you may collect
monetary damage against the parties responsible (or ultimately
their insurers) in the degree to which they have caused you harm.
The degree of causation may be something that medical professionals
later have to determine with their expertise.
(5) If I collect damages
who pays for those damages?
In most cases, like for instance in a simple car
accident, driver's carry insurance for "third party liability".
A store may also carry similar insurance to insure against accidental
damages caused in a slip & fall. A home owner may carry insurance
that covers damages caused by their pets or for accident loss
caused by a slip & fall. Therefore in the large majority of
the cases it is the Insurance Companies that end up paying for
the damages caused to you in the accident whether it is a car
accident, bike accident, bus accident, skiing accident, slip &
fall, etc. The majority of times, if the party that causes harm
has sufficient insurance coverage the Insurance Companies will
indemnify and hold harmless that party and the offending party
will never have to pay for any damages caused beyond the insurance
deductible or minor crash responsibility charges. Sometimes if
the offending (at fault) party does not have sufficient insurance
coverage he/she will be "on the hook" to pay for monetary
damages that are in excess of his/her coverage. Other times the
insurance company may hold a offending driver or owner to be in
breach of their insurance coverage (such as in the case where
the offending driver is "drunk" or leaves the scene
of the accident) and in those cases an offending party may, eventually,
be held financially accountable for the accident by the insurance
company. For more information about a possible "breach of
insurance" due to intoxication or hit and run you should
contact our office. You might also refer to the relevant portions
of the legislation governing this area of law at [www. .com] -
see section 55(8), 73, 24, 25
(6) How much is my injury
worth? What types of damages are there?
In most personal injury cases the person injured
can expect to collect monetary damages that are attributable to
the accident as compensation. The form of the compensation will
obviously be different depending upon the nature of the injuries.
The following is a list of some of the things that one might claim:
a. damages for pain and suffering and loss of enjoyment
of life (the extent of the award will depend upon a variety of
factors including the type of injury suffered; the age of the
injured party; how the injury has affected the injured party's
life and how badly the injury is expected to affect the injured
party in the future;
b. damages for wage loss (if you are temporarily
disabled and miss work after an accident that you can expect to
collect the "dollar for dollar" equivalent of your provable
loss);
c. future wage loss or loss of ability to earn income
(if you are somehow permanently disabled, even if it is a partial
permanent disability [ie. the loss of your pinky finger which
may effect your manual dexterity or a back injury which may effect
your ability to perform heavy work] then you can expect to collect
a sum a money that is equivalent to that provable future loss
or income. The proof of that future loss is sometimes a difficult
task and usually involves an abundance of medical assessment);
d. past care cost (if you have spend money for your
medical care then you can expect to collect a sum of money equivalent
to those expenses but ensure that you keep the receipts to prove
this loss);
e. future care costs (if you will suffer repeated
medical expenses in the future owing to your accident-related
injuries then you can collect a sum of money equivalent to that
future loss);
f. out of pocket expenses (if you suffer out of
pocket expenses like for travel to/from medical appointments,
cab fare, parking, etc, then this is also recoverable but again
- KEEP track of these expenses in a log or receipt book);
g. legal costs (sum of the legal costs associated
with advancing your personal injury case are recoverable as the
court system recognizes that often legal experts, lawyers and
their agents are a necessary part of the process).
(7) How do I survive
economically if I cannot work after the accident and how do I
pay for my medical bills?
Many times people who are injured in a motor vehicle
accident have immediate needs like paying for their rent, mortgage,
car payments and immediate medical bills. After an accident which
causes injury an accident victim may be put in the position to
have to pay up front for medical treatment or pay their bills
without having a continuing paycheck.
If you have medical coverage and/or disability insurance
coverage through your place of employment then by and away that
disability insurer will take the lead and either pay for (or reimburse
you for paying for) medical bills (ie. medicine, physiotherapy,
hospital bills) and wage loss (ie. short term and/or long term
disability benefits). In order to start the ball rolling you will
need to apply with that disability insurer (ie. Sun Life, Clarica,
Manulife) for coverages. Largely this can be taken care of by
the person responsible at your place of employment (ie. Human
Resources Manager) however you will have to fill out an application
for whatever benefits are available through the employer's plan.
WARNING: if you were injured in a motor vehicle accident you might
also possibly have to sign a "Subrogation Agreement"
with your employer's disability insurer in order to obtain any
benefits from them. A "Subrogation Agreement" is an
agreement for you (or your legal representative) to re-pay the
disability insurer (ie. Sun Life) for any payments that you may
receive in the future for wage loss, future wage loss or medical
expenses. The subrogation agreement is largely meant to guard
against an injured party "double-collecting" for his
accident related injuries. Before signing any subrogation agreement
you should have that agreement looked over by a legal representative.
If you DO NOT have medical coverage and/or disability
insurance coverage through your place of employment then there
is a variety of different sources through whom you might receive
immediate medical benefits and/or rehabilitation benefits and/or
temporary wage loss benefits. If you are injured and are not covered
by an employer's medical/disability insurance the very first thing
that you should do is to apply for employment assistance with
Human Resources Development Canada ("HRDC"). Even if
you do not believe that you will covered by HRDC (ie. you have
not worked the minimum required weeks to obtain coverage) you
should still apply for these benefits. There are a variety of
different coverages available (ie. "medical leave")
and you should inquire of the HRDC representative of what coverages
may apply for you. If you do not qualify for any HRDC help then
you should ask for a written explanation confirmation from HRDC
their refusal to offer you benefits.
Even if you are covered by HRDC benefits, or after
you have exhausted them, you may still seek immediate financial
help for medical or rehabilitation expenses or for temporary wage
loss disability benefits from ICBC while you are incurring the
expenses or suffering from a disability caused by a motor vehicle
accident.
Under Part 7 of the Regulations (1984) to the Insurance (Motor
Vehicle) Act, ICBC is required to pay for certain expenditures
that relate to your immediate medical needs (ie. for certain medical
and rehabilitation expenses) and/or for temporary wage loss benefits
PROVIDED THAT you have jumped through all of the appropriate hoops.
We can explain the process including what hoops you may need to
be jumped through in order to obtain these immediate benefits
if you call us. You may also wish to investigate ICBC legal obligations
further by visiting the followings links:
www. .com (Insurance (Motor Vehicle) Act.
www. .com (ICBC information page)
If you have no place else to turn and, for some
reason, do not qualify for any public or private assistance there
may other forms of financial help available to you including:
(a) advances on an expected settlement that can be accessed through
ICBC; (b) personal loans that can be made to you by outside financial
institutions that specialize in advancing injured parties monies
with deferred payment until the settlement is made or court action
resolved (see for instance the following link: www. .com or www.
.com); (c) personal emergency loans that our firm may advance
to you or directly to your medical professionals; (d) deferral
plans that can be arranged by us with your medical professionals
(ie. chiropractors or physiotherapist or even for diagnostic tests
like MRIs) for these treatment/diagnostic costs so that you need
not pay then until your case settles; (e) community based resources
which can be accessed by you to pay for extraordinary medical
expenses.
YOU SHOULD BE AWARE that you must ensure that you
al least apply and attempt to secure benefits from all sources
that may be available to you or the Court may later make deductions
against you for the amounts that you could (and should) have tried
to access when they were available.
YOU SHOULD ALSO BE AWARE that the current weekly
maximum that ICBC has to pay a person injured in a motor vehicle
accident for weekly wage loss benefits under the statutory regime
is only $300 per week which is really a pittance and will hardly
cover your monthly bills.
YOU SHOULD ALSO BE AWARE that ICBC, in my opinion,
makes it incredibly difficult for people to access the immediate
benefits that they require. For instance, in dealing with rehabilitation
expenses though ICBC may approve physiotherapy or other treatment
for funding so that the physiotherapist gets paid by ICBC for
your visits you may still be charged a surcharge by physiotherapist
every time you visit them. (ICBC is quick to point out that these
expenses can be reimbursed as "special expenses" at
the end of your claim but to my way of thinking it merely puts
more impediments in the way of obtaining treatment for persons
injured in motor vehicle accidents). ICBC is in my opinion also
very slow to approve funding for any treatment and often require
incessant medical referrals or medical examinations prior to your
obtaining approval.
At our firm we attempt to help clients secure all
possible funding for our client's immediate needs by doing some
or all of the following:
(a) working with the various insurance agencies
to obtain reimbursement for our clients for medical expenses (like
medication expense),
(b) working with doctors to obtain the necessary medical referrals
for our clients' proper treatment and then ensuring that ICBC
fund those therapies where medically necessary and where circumstances
dictate;
(c) working with employers to obtain the information necessary
to provide to ICBC so that if wage loss benefits become immediately
due then they will be paid on time;
(d) obtaining deferrals on payment from treating medical professionals
so that they will be paid at the end of your claim; and
(e) providing emergency loans to clients when necessary and where
circumstance permit.
We do not just sit in the wings and wait for settlement.
It is our commitment to help clients as best we can to obtain
every form of funding available for their immediate needs.
(8) Does ICBC have the
right to send me to a medical doctor and obtain my private medical
information?
In certain circumstances ICBC may attempt to secure
your past medical records or have you seen by one of their chosen
physicians.
Usually at your first meeting with ICBC, if you
look to be making a future claim for compensation with them, the
ICBC representative will attempt to have you signed an authorization
for ICBC to obtain your private medical records. DO NOT SIGN THAT
AUTHORIZATION. Instead seek immediate legal advice from us about
the repercussions of signing versus not signing that authorization
as the harms may far outweigh the benefits depending upon the
case.
Eventually if you proceed with a legal action for
personal injury damages or you are requesting that accident benefits
(ie. medical/rehabilitation benefits or wage loss benefits are
or will be payable by ICBC) then the law in BC currently gives
ICBC the right to send you to for a private medical examination.
They call these "Indepdendent" Medical Examinations
or IMEs. In my opinion they are far from INDEPENDENT. ICBC has
had-picked medical professionals who make a large annual income
from performing these medical examinations and preparing these
reports for ICBC. Obviously if ICBC is helping that medical professional
pay for his Whistler Condo or his kid's braces and fancy private
schools then that doctor will want to continue to live off that
"gravy train". The IME reports cost ICBC several thousand
dollars each and you do not have to be a genius to figure out
that the IME reports are usually take a critical or "justifiable"
position and regularly downplay the injuries suffered by a client.
Your obligation to attend for these independent medical examinations
with ICBC's chosen-few doctors will depend upon the circumstances
facing you and your obligation to attend at the IME should be
discuss with your legal representatives.
IF you are a client of this firm you can be certain
that IF ICBC sends you for an IME with one of their doctors (and
even if they don't) in the vast majority of cases we will set
up appointments for such medical examination(s) that may become
necessary including the following: (a) private MRIs which can
be done within a week not take months or years; (b) medical referrals
and attendances with BC's top treating orthopaedic medical practitioners
for Plaintiff oriented IMEs paid for by the law firm; (c) functional
capacity examinations with noted occupational therapists who are
qualified to give evidence in court if necessary; (d) neuron-psychological
exams with qualified professionals, etc. We will have you seen
by the best of the best so that we can obtain the best possible
prognoses for you. For it is only after receiving the advice of
these medical doctors that we can properly assess the fall-out
and appropriate settlement for you. We DO NOT just sit by and
let ICBC send you to their medical doctors. We are proactive in
ensuring that our experts will match or better those of ICBC if
your matter ends up in court.
(9) Are the medical appointment
that important: Why can't I just settle my case?
When you have been injured ICBC will need to not
only assess the nature of your injuries (and how they might affect
you in the future) they will also want to attempt to downplay
your injuries in order to goad you into a small settlement. In
order to do so ICBC will want to secure all of your medical history,
educational history, vocational (workplace) history, claims history
with Workers Compensation Board or other disability insurers,
etc. They have plenty of resources to investigate your claim and
they use their resources to build up a case against you. In my
view the insurance company's take a "smoke and mirrors"
approach to defending personal injury cases. If they find out
information about you they will not be afraid to use it against
you to defeat your claim. They will attempt to blame the effects
of your injury on anything by the accident. They always look for
"congenital" difficulties (ie. problems that they say
you were born with or developed over time) or other accidents
(ie. post-mva sporting injuries, etc.) upon which to blame your
mva-related injuries. As mentioned in the preceding paragraph
they will hire their doctors who will be paid to support and testify
in court to legal positions contrary to yours.
To a large extend the insurance company does not
really care WHAT YOU SAY happened in an accident or WHAT YOU SAY
the medical fall out of the accident is. The insurance company
will only stand up and take notice of your claim for injury if
it is supported by medical diagnostics and medical opinions. The
insurance companies thus do care what the doctors say about you.
Therefore it is absolutely necessary that you have your injuries
supported and documented by medical professionals. The clinical
records of all of your treating medical professionals is really
the roadmap to your claim. Doctors are trained to take good notes
regarding your injuries so that they can later report then in
medical-legal format. Every visit you make to your treating medical
professional (whether it is in a hospital, at the family doctor,
a chiropractor, a physiotherapist or even a massage therapist)
is always recorded. The notes relating to your visits will likely
later be disclosed by your lawyer to the insurance company's lawyers.
Therefore everything that you say to your treating medical professionals
might eventually become an important piece of the puzzle.
YOU SHOULD BE AWARE that you should be as detailed
as possible with your medical doctors so that all the injuries
relating to your accident are reported. YOU SHOULD ALSO MAKE SURE
that your medical professionals are both making detailed notes
relating to your injuries and are making the appropriate referrals
to recognized experts.
Only after obtaining a proper medical prognosis
can your lawyer accurately assess your claim. If you refuse treatment
deemed necessary then the insurance companies will tell the court
that you did not properly "mitigate" your damages and
will later seek to have any award reduced as a result. Therefore
you do need to seek all appropriate medical assistance in order
to properly treat your mva-related injuries and obtain a proper
prognosis.
At our firm we will guide you through this process
if you hire us to deal with your claim.
(10) How do I pay the
lawyer to help me with my injury claim?
When you hire our firm to represent you in an injury
claim almost 100% of the time we will act for you on a contingency
fee basis. What that means is that we do not get paid unless and
until you get paid by the insurance company or offending party.
Our legal fees are paid as a percentage of the award/settlement.
If you receive an award then the lawyer will get paid from the
settlement award not from you. Therefore there is little risk
in terms of legal fees. Though the actual percentage related to
our fees vary from case to case I think that you will find our
standard contingency fee agreement both reasonable and easy to
understand.
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