Stunt driving charge at officers discretion ???

gbs
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Stunt driving charge at officers discretion ???

Unread post by gbs on

Stunt driving charge at officers discretion ???

I was under the impression that "special powers, of vehicle and license suspension, towing etc." were granted by a MUST DO type clause.

For instance, .05 blood alcohol reading, requires / Mandated, vehicle/license 3 day suspension ... and police are given power to do this, by stating they MUST do it.

After speaking some people, I have discovered quite a few instances of people being 50 over the speed limit and NOT being charged with stunt and in some cases not even given a speeding ticket (once). ** this seems to occur is areas where there is a change is posted speed limit, most often ** Eg) east end of 407, continues into a 60 kph zone, person traveling at 130 kph was NOT charged with stunt.

Reason for asking : I thought the license/vehicle suspension, etc. at roadside for stunt - 50 over, was NOT at officers discretion. I thought it had to be that way, in order for police to have those special powers ... since essentially conviction is occurring at roadside.

The stunt law is confusing at quite a few levels, in terms of absolute clarity.

Question is: does the stunt - speeding charge have any room for officer discretion? If there is room for officer discretion, then isn't the officer themselves acting as judge, jury, executioner?


Stanton
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Unread post by Stanton on

Most parts of the section state that the officer "shall", which would arguably mean there is no discretion (typically other sections of the act state that an officer "may"). But I doubt anyone would ever complain that their vehicle wasn't impounded, etc. And what would be the remedy for an officer not laying a more serious charge? And is it actually a better thing if officers never exercise discretion? I can see pros and cons each way.


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Decatur
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Unread post by Decatur on

If you read section 172(5):
(5) Where a police officer believes on reasonable and probable grounds that a person is driving, or has driven, a motor vehicle on a highway in contravention of subsection (1), the officer shall,

(a) request that the person surrender his or her driver’s licence; and

(b) detain the motor vehicle that was being driven by the person until it is impounded under clause (7) (b).

Where it says "shall" refers to to fact that if the officers lays a charge under this section, it is mandatory to suspend the licence and seize the motor vehicle for seven days.

There is nothing that says the officer shall lay the charge. An officer always has discretion on whether or not to lay any charge under the HTA.


gbs
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Unread post by gbs on

Because stunt is defined/redefined as 50 over, among others conditions, reasonable/probable grounds just needs 50 over.

Once that occurs, it seems, officers MUST suspend license/vehicle ... without discretion.

I was wondering if the law is worded that way specifically to allow officers to take license/vehicle suspension actions. As in, without that, they do not have authority to take those actions. And if that is the case, then is it also true that choosing NOT to do it, is exercising discretion, which may not be permitted, by definition.

I don't have the necessary background to decipher wordings of laws ... legalese is a somewhat different language.

>> And is it actually a better thing if officers never exercise discretion?
I think, officers discretion is a critical component, in general, though not everyone would agree. In the occurrences I mentioned above, despite those people being 50 over the speed, it was certainly a momentary, unintentional occurrence.


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Unread post by iFly55 on

R. v. Paraschiew [2012] O.J. No. 4085

In a weird twist of fate, this appeal court decision shows that being charged with Stunt Driving would have been more advantageous to the defence than being charged with S128 Speeding. Solely because with Stunt Driving you're afforded a due diligence whereas S128 Speeding requires a necessity defence.

Although, in 99% of situations most defendants have no defence for speeding; people are generally more concerned about the immediate admin penalties (7-day impound/suspension) and of course facing the minimum $2000 fine on conviction; I understand that "most" people would rather be charged with S128 Speeding.

However, if they can meet a due diligence defence; although they're out for the impound/license fees... they could be found "not guilty" at trial under S172.


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Unread post by UnluckyDuck on

What I find helps a lot, be honest, apologize, and acknowledge that you've done something wrong. I'm probably the last one to talk, but last year, I was pulled over for stunt driving 4 times. I think the most I was caught over was 96 km/h over (146 in a posted 50). I think the worst punishment I got was two lightbulb infractions. The other punishment I got was a 15 over ticket (65 in a 50). Other than that, let off with warnings. It's all about attitude, if you're window is opened a crack and you're preaching "I don't have to talk to you. I have the right to remain silent. Here is my license, but I'm not giving it voluntarily." If you come off as "Good morning, oh I'm sorry, I didn't realize I was going that fast. It was an honest mistake and I won't do it again." then you might get off with a warning.


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Unread post by gbs on

iFly55 wrote:R. v. Paraschiew [2012] O.J. No. 4085

In a weird twist of fate, this appeal court decision shows that being charged with Stunt Driving would have been more advantageous to the defence than being charged with S128 Speeding. Solely because with Stunt Driving you're afforded a due diligence whereas S128 Speeding requires a necessity defence.

Although, in 99% of situations most defendants have no defence for speeding; people are generally more concerned about the immediate admin penalties (7-day impound/suspension) and of course facing the minimum $2000 fine on conviction; I understand that "most" people would rather be charged with S128 Speeding.

However, if they can meet a due diligence defence; although they're out for the impound/license fees... they could be found "not guilty" at trial under S172.
Due Diligence is a lower bar to meet, as you say and probably could be reasonably applied in my case. However, it's a bit of a risk to take it to trial, if offered a speeding charge instead. And chances are, even a win in a trial, would more likely just be a reduction to a speeding charge. I'm not sure if being found not guilty of stunt, also means a speeding charge goes away.

The way the law is currently set up, there is no real win scenario from financial perspective. Principle is all that's left, and it comes at very high cost, if you get it.

For marginal cases, like mine, from my view; effectively it just increases a speeding fine by a few thousand dollars (impound/suspensions/alternative transportation/ time off work etc.)

Yes, I would have preferred the speeding ticket and be done with it.


gbs
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Unread post by gbs on

UnluckyDuck wrote:What I find helps a lot, be honest, apologize, and acknowledge that you've done something wrong. I'm probably the last one to talk, but last year, I was pulled over for stunt driving 4 times. I think the most I was caught over was 96 km/h over (146 in a posted 50). I think the worst punishment I got was two lightbulb infractions. The other punishment I got was a 15 over ticket (65 in a 50). Other than that, let off with warnings. It's all about attitude, if you're window is opened a crack and you're preaching "I don't have to talk to you. I have the right to remain silent. Here is my license, but I'm not giving it voluntarily." If you come off as "Good morning, oh I'm sorry, I didn't realize I was going that fast. It was an honest mistake and I won't do it again." then you might get off with a warning.
4 times!!! ... I understand your username now :-).

Another officer may have seen it differently. That weekend, that officer was at that location for 2 days. Probably charged 10+ people for stunt in that area. Fish in a barrel, location .. has been ever since the 410 extension was built. He may have been there specifically with that intent. You could probably make decent money with a coffee truck in that area, catering specifically to police officers :-)

Officer immediately stated he was going to impound vehicle/suspend license, when he got to my window. It was an OPP officer.


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Unread post by bend on

I'm not even sure what we're arguing here.

If you've committed the offense, what's the difference? You aren't losing anything. You either get a freebie or you don't.

As for the officer being "judge, jury, and executioner", it has nothing to do with him. If you're charged with stunt driving, you get suspended, towed, and impounded. He didn't write the act and he doesn't get to pick and choose the consequences once you're charged. You are either charged with stunt driving or not. It's always up to an officer whether or not they lay a charge, it's not up to them to decide you get to keep your car after charging you.


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Unread post by bobajob on

to me, the actual "spirit" of the law of Stunt driving, is racing or engaging in similar activity. Was it not actually brought in because of street racers.

accelerating on an empty hiway from 100-150 - and I understand it is illegal and speeding, is not actually, "stunting" per-se

there have been several threads where people have been done for stunting, where they have not been, but HAVE been speeding.

just my take, and just IMHO
--------------------------------------------------------------
* NO you cant touch your phone
* Speeding is speeding
* Challenge every ticket
* Impaired driving, you should be locked up UNDER the jail


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Unread post by bend on

I've seen people say this over the last couple days here, how it's not "in the spirit" of the charge. The word "racing" then comes up and I guess the assumption is that because there aren't cars battling each other or it doesn't involve a kid in a fart can honda civic that the charge isn't doing what it's meant to be doing.

The regulation can be found here. It covers all kinds of obnoxious and dumb behavior including, but not limited to:

- Driving a motor vehicle with a person in the trunk of the motor vehicle.
- Driving a motor vehicle while the driver is not sitting in the driver’s seat.
- driving a motor vehicle in a manner that indicates an intention to prevent another vehicle from passing
- stopping or slowing down a motor vehicle in a manner that indicates the driver’s sole intention in stopping or slowing down is to interfere with the movement of another vehicle by cutting off its passage on the highway or to cause another vehicle to stop or slow down in circumstances where the other vehicle would not ordinarily do so,
- driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway

The regulation is not limited to racing and racing activities. You don't need to be racing to get charged for stunt driving when you got someone in your trunk.


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Unread post by gbs on

bend wrote:I'm not even sure what we're arguing here.

If you've committed the offense, what's the difference? You aren't losing anything. You either get a freebie or you don't.

As for the officer being "judge, jury, and executioner", it has nothing to do with him. If you're charged with stunt driving, you get suspended, towed, and impounded. He didn't write the act and he doesn't get to pick and choose the consequences once you're charged. You are either charged with stunt driving or not. It's always up to an officer whether or not they lay a charge, it's not up to them to decide you get to keep your car after charging you.
>> I'm not even sure what we're arguing here.

Trying to determine if, an officer MUST charge stunt, by law, if a vehicle is "50+ over" the posted speed limit.


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Unread post by Decatur on

Again.... It is not mandatory that the officer charge someone with stunt if they are 50 or more over the maximum.


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Unread post by bend on

gbs wrote:Trying to determine if, an officer MUST charge stunt, by law, if a vehicle is "50+ over" the posted speed limit.
Let's pretend an officer MUST charge someone (they don't). What's the argument? That no one should get a break?


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Unread post by gbs on

bend wrote:
Let's pretend an officer MUST charge someone (they don't). What's the argument? That no one should get a break?
>> What's the argument? That no one should get a break?
-- laws being applied equally would be a pretty strong argument ... that's kinda the nail everything hangs on. -- "Who gets a break", is a decision for courts not an officer. I doubt officers have any significant level of discretion.

I was under the impression, that 50+ over, was all that was required for stunt AND officers MUST charge stunt under that condition. I thought that wording was required to give the impound/suspension powers.

What I'm hearing here is, charging stunt is at officers discretion, even when 50+ over.

That surprises me; as it implies 50+ over isn't sufficient on its own, for the stunt charge. Yet, the majority of stunt charges are speed ONLY related. Most of which get reduced to speeding charges, before trial, from the few sources of information I seen.

These are muddy waters.

I agree with bobajob ... seems like they created a back door to allow impound/suspension for mere speeding offenses under the guise of stunt driving, for little purpose other than effectively significantly increasing speeding fines.

The money side of this is significant ... assuming an average cost of impound and license reinstatement of $1000 ... every 10000 stunt charges laid ... costs the public (those charged) 10 Million dollars.

Not sure how many charges there are to date but it seemed like there were about 30000 charges laid in the first few years of the stunt driving law.

Given that, at least half of those charges are quickly reduced to speeding, those 30000 charges, pulled an extra 15 million dollars to tow truck/impounds and MTO, that need not happen.






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