Immediate Roadside Prohibitions (IRPs) – 3, 7, 30 and 90 Days
The Immediate Roadside Prohibition has been around for a few years. Revisions to the law such as 24-hour prohibitions and administrative driving prohibitions are now in effect. The BC Supreme Court has held that the 3, 7 and 30 day driving prohibitions were void because the prohibitions were based on 'mere suspicion' that the person's ability to drive a motor vehicle is affected by alcohol rather than reasonable and probable grounds. The police may issue an IRP if the driver blew a fail on an approved screening device or failed or refused to provide a sample of breath suitable after a demand. There are relatively few defences, and there are many strict penalties.
It its difficult for a driver to dispute the Immediate Roadside Prohibition and it is not a Judge who hears the matters but rather an adjudicator who asks the questions employed by the Office of SuperIntendent of Motor Vehicles in Victoria. Previously motorists who failed the ASD roadside breath test were "automatically" forced to have an ignition interlock system installed on their car and enroll in the Responsible Driver Program, but recently the province updated its website to say the participation the programme simply "may be required" where a person's blood alcohol content registers above .08. The penalties, some or all of which may be refundable and avoidable upon successful review, which total about FIVE THOUSAND ($5000) DOLLARS in relation to the Immediate Roadside Prohibition are as follows:
Moreover subsequent offences carry an increased penalty. So it is important to talk to a lawyer. The law limits your time. It may be possible to argue that the Immediate Roadside Prohibition be revoked or reduced in view of the circumstances. Some features of the law have been held unconstitutional and the provincial government has been forced to amend the rules and regulations accordingly.
Application for Review of 90-day driving prohibition
The motorist can review the driving prohibition. You or our lawyer may file an Application for Review within seven (7) days after you received the Notice of Driving Prohibition. There is about a $200 fee plus taxes which is refundable to you if you are successful. It is important to contact a law office, such as ours, which has extensive experience in terms of dealing with the Superintendents Office in Victoria for the driving prohibition reviews, as well as significant Courtroom experience in impaired driving cases. In the past few past few years the law and procedures have been challenged in the BC Supreme Court in relation the Superintendent's adjudicators. The following are a few cases in point of some Defences:-
Failed Reading cases
1) Hartt v British Columbia (Attorney General) (2013, BCSC)--failed reading cases--second sample--Held: that police must provide an opportunity for second sample using a different device and rely in the lower of the two readings--
2) Miller v. Superintendent of Motor Vehicles (2013, BCCA)--failed reading cases--Facts/Issue: whether report must be sworn--Held: that the Report to Superintendent must be sworn--
3) Modhgill v. Superintendent of Motor Vehicles (2013, BCSC)--failed reading cases--Facts/Issue: whether ASD roadside screening device was properly calibrated--the service expiry date was before the calibration date in error--Held: that the ASD must be properly calibrated--that the court would not be satisfied that the ASD properly registered a fail--that though the adjudicator would not be bound by precedent, the adjudicator must nonetheless act logically and reasonably--
4) In Spencer v Superintendent of Motor Vehicles (2011, BCSC)--refusal cases--Held: that if there is insufficient evidence to decide the case, it would be resolved in favour of the petitioner, in line with the proper allocation of the burden of proof and the concept of a balance of probabillities--that there there will be a stay of prohibition pending the completion of the rehearing--that the petetioner shall have their costs--
5) In Scott v Superintendent of Motor Vehicles (2013, BCSC)--refusal cases--Facts/Issue:--whether there was lawful demand--Held: that there must be a clear and un-equivocal refusal of lawful demand, and the when making decisions about a driver's credibility as opposed to the police officer, the adjudicator must be logical and not employ circular reasoning to favour the police version--
If you have received a Notice of Driving Prohibition then contact us immediately. The law limits the time in which you are permitted to apply for review. So it is important to contact a lawyer promptly.
1. Interlock System no Longer Automatic. see http://bc.ctvnews.ca/interlock-systems-no-longer-automatic-for-b-c-drunk-drivers-1.1241326
2. IRP Prohibitions and Penalties. see http://www.pssg.gov.bc.ca/osmv/shareddocs/immediate-roadside-prohibition-penalties.pdf
In T v Superintendent of Motor Vehicles it was held that "Your lawyer, Brock Edwards, stated that the Demand(s) for Sample(s) table on page two of the police officer's report provides no evidence, as it is blank. Without that critical information I cannot be satisfied that your BAC exceeded 80 mg% within three hours of operating or having care or control of a motor vehicle. I am satisfied that you did not have a BAC of over 80mgs. I therefore revoke your driving prohibition"
In C v. Superintendent of Motor Vehicles it was held that "Your legal counsel, Brock Edwards, submits that your driving prohibition should be revoked because the Constable has not provided evidence sufficient to establish that a breath demand was made pursuant to section 254 of the Criminal Code. Based on the evidence before me, I cannot find that you failed or refused to comply with a demand made upon you to supply a sample of your breath under section 254 of the Criminal Code with respect to operation or care or control of a motor vehicle. I therefore revoke your driving prohibition as required by section 94.6 of the Motor Vehicle Act. You may resume driving. A refund of your review fee has been authorized"
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