The B.C. Civil Liberties Association will argue the current law criminalizes drivers who refuse or fail a roadside blood-alcohol test.
Current penalties for failing or refusing the tests include fines, automatic licence suspensions and car seizures.
"It violates the right to be presumed innocent until proven guilty," said Raji Mangat, a lawyer with the BCCLA.
The case, which goes before the B.C. Court of Appeals on Monday, stems from a lower-court ruling that resulted in Justice Ministry tweaks to the tougher 2010 drinking and driving legislation. The BCCLA has been granted intervenor status to present its views to the court.
The penalties for about 1,200 motorists who were handed immediate roadside prohibitions prior to the unconstitutional ruling were reviewed last month by the Office of the Superintendent of Motor Vehicles.
Legal challenges on behalf of 17 of those 1,200 motorists prompted the review and resulted in the decision to overturn their penalties.
While the provincial government changed the law to comply with the judge's order, Mangat said the legislation doesn't go far enough to ensure drivers' constitutional rights aren't being violated.
She also said the provincial government has no jurisdiction to make changes in law that allow police officers to impose automatic penalties that imply criminal wrongdoing.
Refusing to blow — in particular — should not be perceived as guilt, Mangat said, because roadside screening devices are not always accurate.
Being able to provide a breath sample, in custody with the presence of a lawyer, is vital to ensuring due legal processes, she said. Otherwise, there will be no way for drivers to challenge results of roadside breath tests.
Mangat said that while she didn't want to be seen as someone who belittled the crime — and the potential deadly effects — of drinking and driving, it is necessary to revisit the current laws to create legislation that complies with the Charter.
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