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BY PEACE OFFICER

Motor Vehicle Act (NS)


Suspension of licence by peace officer


279A (1) Where


(a) a peace officer



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


(ii) has reason to believe that a person while having alcohol in their body failed or refused to comply with a demand made on that person to supply a sample of the person's breath or blood under section 254 of the Criminal Code (Canada); and


(b) the occurrence is in relation to the operation of or having care or control of a motor vehicle as defined in the Criminal Code (Canada),


the peace officer on behalf of the Registrar shall


(c) where the person holds a valid driver's license issued pursuant to this Act to operate the motor vehicle,



(i) take possession of the person's driver's license and shall, subject to subsection (2), issue a temporary driver's license that expires seven days from the effective date or on the expiry of the license seized by the officer, whichever is the earlier, and


(ii) suspend the person's driver's license by serving on the person a notice of intention to suspend and order of suspension effective seven days from the date of the notice and order;


(d) where the person holds a valid temporary driver's license issued pursuant to subclause (c)(i),



(i) take possession of the person's temporary driver's license, and


(ii) immediately suspend the person's driver's license by serving on the person an order of suspension;


(e) where the person holds a valid driver's license to operate a motor vehicle issued other than pursuant to this Act, suspend the person's right to operate a motor vehicle in the Province and privilege of obtaining a driver's license by serving a notice of intention to suspend and order of suspension on the person effective seven days from the date of issue of the notice and order; or


(f) where the person does not hold a valid driver's license to operate a motor vehicle, immediately suspend the person's right to operate a motor vehicle in the Province and privilege of obtaining a driver's license by serving a notice of intention to suspend and order of suspension on the person.


(2) A peace officer who serves a notice and order pursuant to subsection (1) shall, without delay, forward to the Registrar


(a) the person's driver's license, if one has been surrendered;


(b) a copy of the temporary driver's license, if one has been issued;


(c) a copy of the completed notice and order;


(d) a report signed by the peace officer; and


(e) a copy of any certificate of analysis under section 258 of the Criminal Code (Canada) with respect to the person referred to in subsection (1).


(3) The notice of intention and order of suspension, the report of the peace officer referred to in this Section and temporary driver's license shall be in the form, contain the information and be completed in the manner required by the Registrar.


(4) Where a person who holds a valid driver's license does not surrender it, the driver's license is nevertheless suspended.


(5) Unless otherwise ordered in a review pursuant to Section 279B, a driver's license is suspended pursuant to this Section and a person without a driver's license is disqualified pursuant to this Section from applying for or holding a driver's license or operating a motor vehicle for three months from the effective date of the suspension.


(6) Unless otherwise ordered in a review pursuant to Section 279B, a person holding a driver's license issued to a person other than pursuant to this Act is disqualified pursuant to this Act from applying for or holding a driver's license or from operating a motor vehicle in the Province for three months from the effective date of the suspension.


(7) A person whose driver's license or privilege of obtaining a driver's license has been suspended pursuant to this Section shall, to have the driver's license or privilege of obtaining a driver's license reinstated, apply to the Registrar in the form and manner required by the Registrar.


(8) The Registrar shall not reinstate a driver's license or the privilege of obtaining a driver's license pursuant to subsection (7) until the Registrar is satisfied that all requirements pursuant to this Act have been completed by the applicant. 1994-95, c. 12, s. 15; 1996, c. 34, s. 5; 1999, c. 11, s. 9; 2001, c. 44, s. 7.


Review of suspension


279B (1) A person may apply for review of an order of suspension pursuant to Section 279A by


(a) filing an application for review with the Registrar;


(b) paying the prescribed fee and, where an oral hearing is requested, the prescribed oral hearing fee;


(c) obtaining a date and time for a hearing; and


(d) surrendering the person's driver's license if it has not previously been surrendered, unless the person certifies to the Registrar that the driver's license has been lost or destroyed.


(2) The application for review shall be in the form, contain the information and be completed in the manner required by the Registrar.


(3) The application for review may be accompanied by sworn statements or other evidence that the person wishes the Registrar to consider.


(4) An application does not stay the suspension.


(5) The Registrar is not required to hold an oral hearing unless the applicant requests an oral hearing at the time of filing the application and pays the prescribed fees.


(6) In a review pursuant to this Section, the Registrar shall consider


(a) any relevant sworn or solemnly affirmed statements and any other relevant information;


(b) the report of the peace officer;


(c) a copy of any certificate of analysis under section 258 of the Criminal Code (Canada) without proof of the identity and official character of the person appearing to have signed the certificate or that the copy is a true copy; and


(d) where an oral hearing is held, in addition to the matters referred to in clauses (a), (b) and (c), any relevant evidence and information given or representations made at the hearing.


(7) The sole issue before the Registrar in a review pursuant to this Section is whether it is established to the Registrar's satisfaction that


(a) the person operated or had care or control of a motor vehicle as defined in the Criminal Code (Canada) having consumed alcohol in such a quantity that the concentration thereof in the person's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood; or


(b) the person failed or refused to comply with a demand made on the person under section 254 of the Criminal Code (Canada) in respect of the operation or care or control of a motor vehicle as defined in that Act.


(8) The Registrar shall


(a) where no oral hearing is requested, consider the application within ten days of compliance with clauses (1)(a), (b) and (d); and


(b) where an oral hearing is requested, hold the hearing within twenty days of compliance with subsection (1),


but failure of the Registrar to consider the application or hold the hearing within the required times does not affect the jurisdiction of the Registrar to consider or hear the application or to make a decision with respect to it.


(9) Where the evidence before the Registrar supports an affirmative determination on the issue referred to in subsection (7), the Registrar shall sustain the order of suspension.


(10) Where the evidence supports a negative determination on the issue referred to in subsection (7), the Registrar shall


(a) rescind the order of suspension;


(b) return any driver's license surrendered to the Registrar; and


(c) direct that the fees paid for the application for review be refunded.


(11) Where the appellant who requests an oral hearing fails to appear without prior notice to the Registrar, the right to a hearing is deemed to have been waived by the appellant.


(12) The decision of the Registrar shall be in writing and a copy of the decision shall be sent within seven days of the date the application was considered or the hearing was held by the Registrar by registered mail to the person at the person's last known address as shown in the records maintained by the Registrar and to the address shown in the application, if that address is different from the address of record. 1994-95, c. 12, s. 15; 1999, c. 11, s. 10; 2001, c. 44, s. 8.


Surrender and revocation of license


279C (1) Where, upon demand of a peace officer made pursuant to subsection 254(2) of the Criminal Code, a person provides a sample of the person's breath which, on analysis by an approved screening device as defined in section 254 of the Criminal Code, registers "Warn", the peace officer may request the person to surrender the person's license.


(2) Where, upon demand of a peace officer made under subsection 254(3) of the Criminal Code, a person provides a sample of the person's breath which, on analysis by an approved instrument as defined in section 254 of the Criminal Code, indicates that the concentration of alcohol in the person's blood is fifty milligrams or more of alcohol in one hundred millilitres of blood, a peace officer may request the person to surrender the person's license.


(3) Where a person is charged with an offence under section 254 of the Criminal Code, or any procedure is taken pending the laying of such charge to assure the person's attendance in court on the charge, a peace officer may request the person to surrender the person's license.


(4) Upon a request being made pursuant to subsection (1), (2) or (3), the person to whom the request is made shall forthwith surrender the person's license to the peace officer and, whether or not the person is unable or fails to surrender the person's license to the peace officer, the person's license is revoked and the person's driving privilege is suspended for a period of twenty-four hours from the time the request is made.


(5) The suspension of a license or the suspension of a driving privilege pursuant to this Section is in addition to and not in substitution for any proceeding or penalty arising from the same circumstances.


(6) Where an analysis of the breath of a person is made under subsection (1) and registers "Warn", the person may require a further analysis to be performed in the manner provided in subsection (2), in which case the result obtained on the second analysis governs and any revocation and suspension resulting from an analysis under subsection (1) continues or terminates accordingly.


(7) Where an analysis of the breath of a person is made under subsection (1) and registers "Warn", the peace officer who made the demand under subsection (1) shall advise the person of the person's right under subsection (6) to a further analysis.


(8) For the purpose of subsection (1), the approved screening device shall not be calibrated to register "Warn" when the concentration of alcohol in the blood of the person whose breath is being analyzed is less than fifty milligrams of alcohol in one hundred millilitres of blood.


(9) It shall be presumed, in the absence of evidence to the contrary, that any approved screening device used for the purpose of subsection (1) has been calibrated as required under subsection (8).


(10) Where a license is suspended or a driving privilege is suspended pursuant to this Section, the peace officer who requested the surrender of the license under subsection (1), (2) or (3), shall


(a) keep a written record of the suspension with the name and address of the person and the date and time of the suspension; and


(b) provide the person with a written statement of the time at which the suspension takes effect, the length of the period during which the person's license or driving privilege is suspended, the place where the license may be recovered upon the termination of the suspension and acknowledging receipt of the license that is surrendered.


(11) Where a license is suspended or a driving privilege is suspended pursuant to this Section, if the motor vehicle is in a location from which, in the opinion of a peace officer, it should be removed, and there is no person with a license easily available to remove the motor vehicle with the consent of the person whose license or privilege is suspended, the peace officer may remove and store the motor vehicle or cause it to be removed and stored and shall notify the person of its location.


(12) The costs and charges incurred in moving or storing a vehicle pursuant to subsection (11) shall be paid, before the vehicle is released, by the person to whom the vehicle is released. 1998, c. 32, s. 3; 1999, c. 11, s. 11; 2004, c. 42, s. 13.

Jim O'Neil, LL.B.

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