Driving While Prohibited Lawyers in Kelowna
What is Driving While Prohibited?
Driving while prohibited is one of several criminal driving charges in the Criminal Code. It is the colloquial term for section 320.18 of the Canadian Criminal Code: Operation while Prohibited.
An operation while prohibited charge is laid when the police believe that you have driven a vehicle while you have been forbidden from doing so, either by:
- Criminal driving prohibition order, or
- Traffic suspension stemming from a criminal case.
In order to be convicted for driving while prohibited, the Crown must prove beyond a reasonable doubt that you:
- Operated a motor vehicle, a vessel, an aircraft or railway equipment,
- While prohibited to do so,
- By either an order made in the Criminal Code, or
- By any other form of legal restriction imposed by Parliament or by provincial law, stemming from a criminal case,
- With knowledge of the prohibition.
A charge for driving while prohibited often follows a charge for another driving offence. If you have been pulled over for another reason, the officer will make sure that you are authorized to operate the vehicle that you are driving.
The other offences that can instigate a driving while prohibited charge include:
If you are prohibited from driving as part of a sentence for a criminal offence, a court order will specify the length of your driving prohibition. If you drive before that suspension ends, you risk being found guilty of driving while prohibited.
The provision for operation while prohibited in the Canadian Criminal Code is:
Operation while prohibited
320.18 (1) Everyone commits an offence who operates a conveyance while prohibited from doing so
(a) by an order made under this Act; or
(b) by any other form of legal restriction imposed under any other Act of Parliament or under provincial law in respect of a conviction under this Act or a discharge under section 730.
The Kelowna RCMP Services take driving offences seriously. The British Columbia RCMP Traffic Service employs 455 officers who provide traffic law enforcement. British Columbia has enforcement programs to specifically catch those who drive while prohibited.
There is a range of penalties for driving while prohibited. Jail is not uncommon for this offence. However, you can be given anything from a discharge (a finding of guilt with no criminal record), to a fine and/or probation, to a period of incarceration.
It is important to bear in mind the definition of “operate” in the Criminal Code, in order to determine the physical elements of operation while prohibited:
(a) in respect of a motor vehicle, to drive it or to have care or control of it;
(b) in respect of a vessel or aircraft, to navigate it, to assist in its navigation or to have care or control of it; and
(c) in respect of railway equipment, to participate in the direct control of its motion, or to have care or control of it as a member of the equipment’s crew, as a person who acts in lieu of a member of the equipment’s crew by remote control, or otherwise. (conduire)
As per this definition, you can be charged with driving while prohibited for your operation of a vehicle, boat, aircraft, or railway equipment. Furthermore, as per (b), you can be charged even where the vehicle is not in motion. “Care and control” is all that’s required to convict, which does not necessitate the physical act of driving.
Driving while prohibited vs. driving while unauthorized
Driving while prohibited is a criminal charge that is much more serious than a charge for ‘driving while unauthorized’ under the Motor Vehicle Act of British Columbia. A criminal driving while prohibited charge can arise from a criminal offence, or from breaches of provincial disqualification or suspension stemming from a criminal case.
With a driving while prohibited charge, the police will take your photograph and fingerprints and you will have a police file. A conviction for driving while prohibited may result in a criminal record, whereas convictions under the Motor Vehicle Act will only appear on your Driver’s Abstract.
End of prohibition order does not end suspension
It is important to note that court-imposed driving prohibitions and the driving prohibitions imposed by the provincial government do not always run for the same length of time. If you receive a one-year driving prohibition in court, you will still need to take additional steps to end the government-imposed license suspension, even if your court-imposed driving prohibition has ended.
A suspension does not end when the term of suspension expires. At the end of the suspension term, you are eligible for reinstatement, but this does not occur automatically. It is very common for people to not realize this and be charged with driving while prohibited because they believed (in error) that they could start driving right away.
Do not drive until you have met the terms of reinstatement and have your license back.
In British Columbia, once you pay any outstanding fines related to the suspension and complete the required court or government-mandated programs, you can apply to get your license back.
Investigation of Driving While Prohibited Charges in Kelowna
An investigation of a driving while prohibited charge is usually initiated at a routine police stop, at the scene of an accident, or after a driver is pulled over or pursued.
It is possible that officers from the Kelowna RCMP will stakeout your address and wait for you to operate your vehicle if you are prohibited from driving. In recent years, it has become more common for police to be on the lookout for people driving while disqualified or suspended. We have seen cases where the police conduct surveillance for hours on the homes of prohibited drivers to wait for them to slip up.
As automated licence plate readers (ALPR) become more widely used across Canada, the Kelowna RCMP may soon have the technology to automatically identify prohibited drivers.
If an officer pulls you over, checks the validity of your license, and finds that you are prohibited, you will be arrested.
It is important that while in police custody, you say no more than necessary. The charge carries the possibility of jail time, so ask to speak to your lawyer.
Bail Process and Conditions for Driving While Prohibited Charges in Kelowna
How do I get myself or a loved one out on bail for driving while prohibited charges in Kelowna?
For operation while prohibited charges, the police will often release you with paperwork to attend court and obtain fingerprinting. A formal bail hearing will not be necessary, however, there may be tight restrictions placed on your release, nonetheless.
Committing this offence is considered evidence that you may not take orders seriously, whether court-imposed or administrative. This will cast doubt in the Judge’s mind regarding your ability to abide by conditions if you are released.
The Prosecutor may present a compelling argument that you should be kept in custody until your charges are dealt with in the court. However, as your lawyer, we will present a release plan to help persuade the Judge of the contrary.
The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.
On a weekday, you will be transferred from the district office to the Kelowna Courthouse for your bail hearing.
The address of the Courthouse is as follows:
1355 Water Street
Kelowna BC V1Y 9R3
Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.
Because of these difficulties while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.
Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.
We will immediately do the following:
- Call the district office where you are being held, or the Kelowna Courthouse if you have been transported, and speak to you.
- Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
- Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
- Conduct either an in-person or teleconference bail hearing to secure your release.
When you attend your bail hearing, the Judge will consider the following factors:
- Is detention necessary to secure your attendance in court?
- Is detention necessary to protect the public from a substantial risk of re-offence?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).
In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public.
Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.
Where can I pay for bail for driving while prohibited charges in Kelowna?
If you or a loved one are charged with driving while prohibited in Kelowna and granted bail, you may be required to provide a cash deposit to secure release. The cash deposit can be paid at any bail hearing office (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Kelowna.
The Kelowna court registry is open from 8:30 – 4:30, Monday to Friday.
The contact details of the registry office at the Kelowna Courthouse are as follows:
1355 Water Street
Kelowna BC V1Y 9R3
To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.
How do I change my release conditions for driving while prohibited charges in Kelowna?
Release on bail with driving while prohibited charges may require either a surety, cash or a no-cash deposit.
Beyond that, you may face tight restrictions, including conditions to refrain from:
- Being behind the wheel of a motor vehicle,
- Staying out beyond a certain time (i.e. curfew),
- Breaking any laws,
- Using drugs or alcohol,
- Possessing weapons,
- Visiting certain places, and/or
The Judge can also impose additional conditions such as:
- Residing where approved,
- Reporting to probation,
- Attending counselling, and/or
- Maintaining or seeking employment.
A variety of factors will be considered when determining your precise restrictions, including:
- Your criminal history,
- Your physical and mental condition,
- The nature of the alleged offence,
- The likelihood that you will flee, and
- Your history of drug/alcohol usage.
If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.
Once the matter is in court, we can work with the Crown prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.
Penalties for Driving While Prohibited Charges in Kelowna
Driving while prohibited is a hybrid offence, which means that the Crown can elect to proceed by way of indictment or by summary offence. The Crown’s choice will impact the severity of the penalties that you are handed, with indictment being the more serious of the two.
- Indictment: Up to 10 years’ jail time;
- Summary: Up to two years’ less a day jail time.
If convicted, you will also face extended driver’s license suspensions.
As a result of a criminal driving conviction, you will face:
- First offence: One-year license suspension;
- Second offence: Three-year license suspension;
- Third offence: Lifetime license suspension with the possibility of reinstatement after 10 years if certain requirements are fulfilled; and
- Subsequent offence: Lifetime license suspension with no possibility of reinstatement.
When deciding what penalties to impose, the Court will consider:
- The reason you were prohibited from driving in the first place,
- Whether you were committing other offences while driving prohibited (e.g., driving dangerously or with no insurance),
- How much of your suspension was left to be served,
- Your reason for driving,
- The duration of the driving,
- The reason you stopped driving, and
- Your history of disregarding court orders.
Some aggravating factors that will increase the likelihood of a harsher punishment are:
- Where you caused bodily harm or death to more than one person,
- Where you were racing at least one other person,
- Where there was a passenger under the age of 16 in the vehicle,
- Where you were being paid for operating the vehicle,
- Where you were impaired while operating the vehicle,
- Where you were operating a large motor vehicle, and
- Where you were not permitted to be operating the vehicle.
In addition to the immediate punishments associated with a conviction for driving while prohibited, it can have wide-ranging negative consequences on your future. You may have difficulties securing employment in the area of your choice, especially in roles that require driving. Furthermore, your insurance rates will almost certainly increase (contact your insurance agency for specifics). One of the most serious long-term consequences is the lifelong criminal record that results from a conviction, which can hinder immigration, travel and child custody.
Therefore, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the potential penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.
Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a driving while prohibited conviction. In fact, we can canvass a range of sentencing options with the Prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.
Defending Driving While Prohibited Charges in Kelowna
What are the best defences to driving while prohibited charges in Kelowna?
The best defence for you depends on the circumstances of your case.
Generally, however, some good defences to driving while prohibited charges are:
- Violation of constitutional rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it can aid your defence.
- Not notified of prohibition: If you were unaware that you were prohibited from driving, this can aid your defence. This lack of knowledge challenges the requisite mental element of the offence.
- Not operating the vehicle: For example, if you were arrested when getting out of the driver’s side of a parked vehicle, we can challenge the claim that you were operating the vehicle at all.
Our experienced defence lawyers will use the most effective defence against the charges according to the precise circumstances of your case. Even if the charges proceed and you are found guilty, a good lawyer can significantly reduce the severity of the consequences for you.
How can I help defend driving while prohibited charges in Kelowna?
If you have been charged with driving while prohibited, the following actions can help your lawyer build a strong defence:
- Make a statement about what happened;
- Have passengers write down their observations of what happened;
- Collect and maintain all documents and records about the event;
- Gather any photographic evidence that you may have; and
- Log any relevant texts, emails or phone calls.
As soon as you are released, start gathering any information that may be of use to your lawyer. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action.
If you are truly proactive about the matter, consider doing the following:
- Secure proof of employment,
- Secure reference letters,
- Enroll in counselling (e.g. alcohol or drug rehabilitation),
- Secure a record of any mental health conditions you suffer from.
These steps can be very helpful in building an effective defence (or convincing the prosecutor to drop the charges altogether).
What can a lawyer do to help me defend against driving while prohibited charges in Kelowna?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause.
Some of these include:
- Assembling documents, photos, texts, etc. that contradict the allegation and support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches; and
- Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.
Even if you are found guilty, a good defence lawyer can greatly reduce the severity of the consequences for you. Our lawyers have succeeded in having charges dismissed in even the most hopeless situations. Our team will conduct a thorough review of the circumstances of your case in order to decide what defences are available to you.
Most of the information above relates to simple driving while prohibited cases, which can become increasingly complex and fact-specific depending on the circumstances of your offence.
We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.
To learn more about how we can help, please contact our team of Operation While Prohibited Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.
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