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The Highway Traffic Amendment Act (Police Powers Respecting Unsafe Drivers and Miscellaneous Amendments)

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If you need an official copy, contact Statutory Publications.

S.M. 2004, c. 11

Bill 15, 2nd Session, 38th Legislature

The Highway Traffic Amendment Act (Police Powers Respecting Unsafe Drivers and Miscellaneous Amendments)

(Assented to June 10, 2004)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. H60 amended

1           The Highway Traffic Act is amended by this Act.

2           Subsection 1(1) is amended by adding the following definitions:

"field sobriety test" means a test or group of tests approved by a regulation made under subsection 76.2(3); (« test de sobriété sur place »)

"race" means a contest of speed between two or more motor vehicles, whether or not the contest involves a prize, when there is an indication of a common intention between the drivers to engage in the contest; (« course »)

3(1)        Subsection 76.1(1) is amended by striking out "motor" wherever it occurs.

3(2)        The following is added after subsection 76.1(3):

Peace officer's authority — driver information

76.1(4)     Without limiting the generality of subsection (1), a peace officer may, at any time when a driver is stopped,

(a) require the driver to give his or her name, date of birth and address to the officer;

(b) require the driver to produce his or her licence, and the vehicle's insurance certificate and registration card and any other document respecting the vehicle that the peace officer considers necessary;

(c) inspect any item produced under clause (b);

(d) request information from the driver about whether and to what extent the driver consumed alcohol or drugs before or while driving;

(e) require the driver to go through a field sobriety test under section 76.2;

(f) request information from the driver about whether and to what extent the driver is experiencing a physical or mental condition that may affect his or her driving ability; and

(g) inspect the vehicle's mechanical condition and request information from the driver about it.

Peace officer's authority — passenger information

76.1(5)     For the purpose of enforcing any provision of this Act or the regulations, a peace officer may require a vehicle's passenger to give his or her name, date of birth and address to the officer.

No right to counsel

76.1(6)     A peace officer is not required to inform a driver or passenger of his or her right to counsel, or to give the driver or passenger the opportunity to consult counsel, before doing anything subsection (4) or (5) authorizes.

Peace officer's authority unaffected

76.1(7)     Nothing in this section limits or negates a peace officer's authority to request information from a driver or passenger or to make any observations of a driver or passenger that are necessary for the purposes of road safety enforcement.

4           The following is added after section 76.1:

Peace officer may conduct field sobriety test

76.2(1)     On demand, a peace officer may require the driver of a vehicle to go through a field sobriety test if the peace officer reasonably suspects that the driver

(a) has alcohol in his or her body; or

(b) has in his or her body a drug or other substance of a kind or in a quantity that interferes or may interfere with his or her ability to drive.

Driver must go through field sobriety test

76.2(2)     The driver shall without delay go through the test according to the peace officer's instructions.

Regulations respecting field sobriety tests

76.2(3)     The Lieutenant Governor in Council may make regulations respecting field sobriety tests, including, but not limited to, regulations

(a) approving a test or group of tests as a field sobriety test;

(b) respecting how peace officers are to conduct field sobriety tests.

5           The centred heading before section 242.1 is replaced with "SEIZURE AND IMPOUNDMENT OF VEHICLES FOR CERTAIN OFFENCES".

6(1)        Subsection 242.1(1.1) is amended by striking out "or" at the end of clause (b), by adding "or" at the end of clause (c) and by adding the following as clause (d):

(d) that, after a demand from a peace officer under subsection 76.2(1) to go through a field sobriety test, the driver of the vehicle

(i) refused to go through the test, or

(ii) failed to follow the peace officer's instructions regarding the test.

6(2)        The following provisions are amended by striking out "clause (1.1)(b) (blood alcohol over .08) or (c) (refuse to supply sample of breath or blood)" and substituting "clause (1.1)(b), (c) or (d)":

(a) the part of subsection 242.1(3.1) before clause (a);

(b) the part of subsection 242.1(4) before clause (a);

(c) clause 242.1(5)(c).

6(3)        Subsection 242.1(7.1) is amended by adding the following after clause (d):

(e) when the seizure is under clause (1.1)(d) (refuse/fail to undergo field sobriety test), 60 days.

6(4)        Subsection 242.1(7.1.1) is amended by adding the following after clause (d):

(e) when the seizure is under clause (1.1)(d) (refuse/fail to undergo field sobriety test),

(i)  for a second seizure, 180 days, and

(ii)  for a subsequent seizure, 180 days and an additional 60 days for each seizure after the second.

6(5)        Subsection 242.1(7.1.2) is amended by striking out "or" at the end of clause (a), by adding "or" at the end of clause (b) and by adding the following as clause (b.1):

(b.1) clause (1.1)(d) (refuse/fail to undergo field sobriety test);

7           Clauses 242.3(2)(f) and (g) are replaced with the following:

(f) paragraph 249.1(4)(a) (flight from police causing bodily harm);

(g) paragraph 249.1(4)(b) (flight from police causing death);

8           The following is added after section 242.3:

SEIZURE AND IMPOUNDMENT OF VEHICLES INVOLVED IN RACING

Definition

242.4(1)    In this section, "designated person" means a person designated by the Minister of Justice for the purpose of this section.

Seizure and impoundment of certain vehicles

242.4(2)    Subject to subsection (4), a peace officer may seize a motor vehicle and impound it for 48 hours if the officer has reason to believe that the vehicle is being or has been driven on a highway in a race.

Factors peace officer may consider

242.4(3)    In deciding, for the purposes of subsection (2), whether two or more motor vehicles are being or have been driven in a race, a peace officer may take into consideration the manner in which the vehicles are or were driven and the actions or comments of the drivers and any other participants, including, but not limited to, any of the following factors:

(a) the operation of the vehicles at high speed;

(b) whether there was sudden or rapid acceleration of the vehicles;

(c) whether the acceleration of the vehicles occurred at a location that is known to the peace officer as a location for racing;

(d) any communication between the drivers or the passengers of the vehicles, by action, gesture or word, of an agreement or challenge to race;

(e) any evidence of planning or conduct by a person that the peace officer believes indicates the person's intention to engage in a contest of speed;

(f) any evidence of a bet or wager;

(g) whether the driver or any of the passengers of one involved vehicle know the driver or any of the passengers of another involved vehicle.

Motor vehicle released for safety, undue hardship

242.4(4)    Where a peace officer is satisfied that the seizure and impoundment of a motor vehicle under subsection (2) would jeopardize the safety of, or cause undue hardship to, any person, or is, in the opinion of the officer, not practicable in the circumstances, the peace officer may delay taking custody of the motor vehicle, in which case the peace officer may permit the motor vehicle to be driven to a location specified by the peace officer, where any peace officer may take custody of it.

Application for order to seize and impound

242.4(5)    Where under subsection (4) a peace officer permits a motor vehicle to be driven to a specified location and the vehicle is not impounded at that location, a peace officer may make application to a justice for an order to seize the vehicle and impound it in accordance with this section, with necessary modifications.

Release of stolen vehicle

242.4(6)    A peace officer who is satisfied that a motor vehicle seized under subsection (2) had been stolen may release the vehicle to the owner, or a person authorized by the owner to take possession of it.

Duties of peace officer

242.4(7)    Where a motor vehicle has been seized and impounded, the peace officer shall

(a) complete a notice of seizure setting out

(i) the name and address of the driver, and of the owner if the driver is not the owner and discloses the name and address of the owner,

(ii) the year, make and serial number of the motor vehicle,

(iii) the date and time of the seizure and the date and time the vehicle may be released from impoundment,

(iv) the place where the vehicle is to be impounded, and

(v) the particulars of the officer's reasons to believe that the vehicle was driven in a race;

(b) if the driver is not, or does not appear to be, the owner of the motor vehicle, request that the driver disclose the name and address of the owner;

(c) give the driver a copy of the notice;

(d) cause a copy of the notice to be given to the owner;

(e) cause a copy of the notice to be given to the garage keeper who stores the motor vehicle; and

(f) retain a copy of the notice.

Costs relating to impoundment are lien on vehicle

242.4(8)    A motor vehicle that is seized and impounded under this section shall be stored where the peace officer directs, and the following amounts are a lien on the impounded vehicle that may be enforced in the manner provided in The Garage Keepers Act:

(a) costs and charges prescribed by a regulation made under subsection 319(1);

(b) expenditures for searches, registrations and other charges under The Personal Property Security Act that are reasonably necessary for the garage keeper to comply with the requirements of The Garage Keepers Act.

Release of vehicle after impoundment period

242.4(9)    Unless otherwise required by this Act, and subject to subsection (8) (lien), a motor vehicle is to be released to its owner or a person authorized by the owner after the period of impoundment expires.

No removal of impounded vehicle except as authorized

242.4(10)   No person shall remove or release or permit the removal or release of a motor vehicle that is impounded under this section from the place of impoundment unless one of the following provisions applies to the vehicle:

(a) subsection (6) (stolen vehicle);

(b) subsection (9) (expiry of impoundment period).

Officer may direct movement of vehicle

242.4(11)   A peace officer may direct that an impounded motor vehicle be moved for the purpose of impounding it at another location.

Effect of lien

242.4(12)   A motor vehicle that is subject to a lien under this section shall remain impounded until the amount of the lien is paid or the vehicle is disposed of in accordance with this section and the regulations.

Disposal of impounded vehicle by garage keeper

242.4(13)   Despite subsection (12), a garage keeper who stores a motor vehicle that is impounded under this section may, on the expiry of the period of impoundment and with the approval of the designated person, dispose of it, by sale or otherwise, after delivering the number plates from the vehicle to the designated person and filing with the designated person

(a) a statutory declaration of the garage keeper declaring that the amount of his or her lien on the motor vehicle exceeds his or her estimate of its value;

(b) a certificate issued under The Personal Property Security Act showing that the serial number of the motor vehicle is not identified as an item of collateral in the personal property registry; and

(c) a copy of the notice of seizure.

Transfer of ownership to garage keeper

242.4(14)   Where under subsection (13) the designated person approves the disposal of a motor vehicle by a garage keeper, the designated person shall complete a transfer of vehicle ownership, in a form that the Minister of Justice may prescribe, from the owner of the motor vehicle to the garage keeper.

Personal property in motor vehicle

242.4(15)   Subject to subsection 242(5) of this Act and subsection 54(3) of The Off-Road Vehicles Act, personal property present in or on a motor vehicle which has been seized and impounded, other than personal property attached to or used in connection with the operation of the motor vehicle, shall be returned to the owner upon request.

Owner's right against driver

242.4(16)   The owner of a motor vehicle seized under this section may recover any lien costs that he or she has paid from the person who was the driver at the time of the seizure.

9(1)        Subsection 263.1(1.1) is replaced with the following:

Grounds for suspension

263.1(1.1)  A peace officer shall take action under subsection (1.2) if,

(a) in relation to a person's operation, or care and control, of a motor vehicle, the peace officer,

(i) by reason of an analysis of the breath or blood of the person, has reason to believe that the person has consumed alcohol in such a quantity that the concentration of it in his or her blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, or

(ii) has reason to believe that the person, while having alcohol in his or her body, failed or refused to comply with a demand to supply a sample of breath or blood under section 254 of the Criminal Code; or

(b) after a demand from the peace officer under subsection 76.2(1), a driver refuses to go through a field sobriety test or fails to follow the peace officer's instructions regarding the test.

Notice and order of suspension

263.1(1.2)  In the circumstances described in subsection (1.1), the peace officer, on behalf of the registrar, shall

(a) if the person holds a valid licence or permit issued under this Act to operate a motor vehicle, other than a temporary permit issued under this clause,

(i) take possession of the licence or permit and, subject to subsection (2), issue a temporary permit that expires seven days after the date it is issued, or on the expiry date of the seized licence or permit, whichever is earlier, and

(ii) suspend the licence or permit by serving on the person a notice of intention to suspend, and an order of suspension that is effective seven days after the date of the order;

(b) if the person holds a valid temporary permit issued under subclause (a)(i), take possession of the permit and immediately suspend it by serving on the person an order of suspension;

(c) if the person holds a valid licence or permit to operate a motor vehicle issued other than under this Act, disqualify the person from applying for or holding a licence or permit or operating a motor vehicle in Manitoba, by serving on the person a notice of intention to disqualify, and an order of disqualification that is effective seven days after the date of the order; and

(d) if the person does not hold a valid licence or permit to operate a motor vehicle, disqualify the person from applying for or holding a licence or operating a motor vehicle in Manitoba, by serving on the person a notice of intention to disqualify, and an order of disqualification that is effective seven days after the date of the order.

9(2)        Subsections 263.1(2) and (3) are amended by striking out "(1)" wherever it occurs and substituting "(1.2)".

10          Subsection 263.2(7) is amended by striking out "or" at the end of clause (a), by adding "or" at the end of clause (b) and by adding the following as clause (c):

(c) after a demand from a peace officer under subsection 76.2(1), the person refused to go through a field sobriety test or failed to follow the peace officer's instructions regarding the test.

11          Subsection 264(1) is amended

(a) in the definition "Category A offence", by replacing clauses (b) and (c) with the following:

(b) the offence of theft of motor vehicle parts or off-road vehicle parts committed under section 334 of the Criminal Code, if the value of the parts is $5,000. or less,

(b.1) the offence of possession of property obtained by crime committed under section 354 of the Criminal Code, if the property is motor vehicle parts or off-road vehicle parts, the value of which is $5,000. or less,

(c) the offence of being a passenger of a motor vehicle or off-road vehicle knowing it was taken without its owner's consent, committed under section 335 of the Criminal Code,

(b) in the definition "Category B offence",

(i) by repealing subclause (a)(x), and

(ii) by replacing clause (b) with the following:

(b) the offence of taking a motor vehicle or off-road vehicle without its owner's consent committed by a driver under section 335 of the Criminal Code,

(c) the offence of theft of motor vehicle parts or off-road vehicle parts committed under section 334 of the Criminal Code, if the value of the parts is more than $5,000,

(d) the offence of possession of property obtained by crime committed under section 354 of the Criminal Code, if the property is

(i) motor vehicle parts or off-road vehicle parts, the value of which is more than $5,000., or

(ii) a motor vehicle or off-road vehicle.

12(1)       The following is added after subsection 265(3):

Field sobriety test: request to surrender licence

265(3.1)    When after making a demand under subsection 76.2(1) a peace officer believes that a person is unable to safely operate a vehicle based on the person's performance on a field sobriety test, the peace officer shall request the person to surrender his or her driver's licence.

Refusal to do test: request to surrender licence

265(3.2)    When a person refuses to go through a field sobriety test after a demand from a peace officer under subsection 76.2(1) or fails to follow the peace officer's instructions regarding the test, the peace officer shall request the person to surrender his or her driver's licence.

Gross impairment: request to surrender licence

265(3.3)    When a peace officer believes that a person is so impaired by alcohol or drugs as to be unable to comply with a demand to supply a sample of breath or blood under section 254 of the Criminal Code or a demand to go through a field sobriety test, the peace officer shall request the person to surrender his or her driver's licence.

12(2)       The following provisions are amended by striking out "subsection (1), (2) or (3)" and substituting "subsection (1), (2), (3), (3.1), (3.2) or (3.3)":

(a) subsection 265(4);

(b) the part of subsection 265(6) before clause (a);

(c) subsection 265(7).

13          Subsection 319(1) is amended by adding the following after clause (vvv):

(vvv.1) respecting the seizure, impoundment and disposition of motor vehicles under section 242.4, including, but not limited to, prescribing the costs and charges payable to a garage keeper on account of the towing, transportation, care, storage, disposition of a motor vehicle and other related matters, or the manner in which those costs and charges are to be determined;

14          The following is added after section 325:

Designation of designated person

325.1       The Minister of Justice may designate one or more employees of the Department of Justice to act as a designated person for the purposes of any or all of sections 242.1 to 242.4.

Coming into force

15          This Act comes into force on a day to be fixed by proclamation.