The Motor Vehicle Act sets out a legislative scheme by which motorists can have their licenses suspended.
This post sets out the specific provisions of the IRP legislation, explains how the scheme works, and why the IRP regime is often used in lieu of criminal charges in British Columbia. To fully understand why the IRP regime has displaced criminal proceedings, it is also necessary to understand the British Columbia Crown Counsel Policy that was brought into force at the same time as the IRP regime was implemented in 2010.
Why IRPs are Issued in Lieu of Criminal Charges
At the same time as the IRP regime came into effect, the BC Crown Counsel Office passed a policy that very significantly reduced the number of cases that would be approved for criminal prosecution in British Columbia. The policy recognizes the significant consequences imposed by the IRP regime on a driver who blows a “fail” or who fails or refuses without reasonable excuse to provide a breath sample into an Approved Screening Device. Those consequences are discussed in detail below. In recognition of these penalties, the policy provides that where a driver has been subjected to an IRP and related consequences, a prosecution for an impaired driving offence is generally not in the public interest unless aggravating circumstances apply. Those aggravating factors are set out in the policy and include:
- bodily harm or death; a prior conviction for an impaired driving offence;
- an allegation that other Criminal Code offences were committed during the same event, including driving while prohibited;
- evidence of significant impairment; any other relevant aggravating factor related to impaired driving enumerated in the Criminal Code;
- a prior IRP or Administrative Driving Prohibition under section 94.1 of the MVA; and
- any other aggravating factor relevant to the public interest.
Explanation of the IRP Regime
The IRP scheme runs from section 215.41 to section 215.51 of the MVA.
The IRP provisions originally came into force on September 20, 2010. Under the regime, a motorist is subject to an automatic and immediate prohibition when a police officer forms the reasonable belief that the motorist’s ability to drive is affected by alcohol, as evidenced by an analysis of breath by means of an “approved screening device” that registers a “warn” (which is defined as over 50 mg of alcohol in 100 ml of blood – 0.05 or over) or “fail” (which is defined as over 80 mg of alcohol in 100 ml of blood – 0.08 or over). The same result ensues where a motorist fails or refuses without a reasonable excuse to comply with a demand to provide a breath sample for analysis.
The Approved Screening Device currently in use by police agencies in British Columbia is the Alco Sensor FST.
The length of the prohibition differs depending upon whether the driver registers a “warn” or a “fail”. A “warn” results in a prohibition of 3, 7 or 30 days depending on whether it is a first, second or subsequent “warn” within 5 years. A “fail” reading leads to a 90-day suspension and a $500 fine. A 90-day suspension and $500 fine is also imposed on a driver who refuses or fails without a reasonable excuse to comply with an Approved Screening Device demand. These prohibitions are issued at the roadside by the peace officer who provides the driver with two documents: A Notice of Driving Prohibition and a Notice of Vehicle Impoundment. The vehicle is towed from the scene and impounded. Those who blow a “fail”, or refuse or fail to blow without a reasonable excuse are saddled with the following mandatory penalties and attendant costs in addition to the 90-day prohibition:
- a 30-day mandatory vehicle impoundment;
- the cost of vehicle towing and storage during impoundment which is about $800;
- a $500 fine;
- a $250 license reinstatement fee;
In addition to these mandatory penalties, there are two additional discretionary penalties a driver could face at the behest of the Superintendent of Motor Vehicles:
- Enrollment in the Responsible Driver Program which costs just under $1000; and
- Installation of an ignition interlock device upon resuming driving, for a period of 1-year, which costs about $2000 per vehicle.
The Superintendent of Motor Vehicles will usually require a driver who receives a 90-day IRP for the first time to enroll in the Responsible Driver Program but will not require the person to install the ignition interlock device unless there are other alcohol related infractions on their driving record.
Grounds for an Approved Screening Device Demand
The MVA has no mechanism by which breath samples can be obtained. The legislation depends for that on the Criminal Code (see sections 215.41(3.1) and (4) of the MVA). Prior to December 18, 2018 an officer who made a demand for a sample of breath into an Approved Screening Device was required to have a reasonable suspicion that the driver had alcohol in their body. This is a relatively low threshold and was normally (although not exclusively) established through a smell of alcohol on the motorist’s breath, an admission of consumption, or both. However, on December 18, 2018 new Criminal Code impaired driving laws came into force which allow peace officers to randomly test motorists using an Approved Screening Device as long as they have the Device in their possession. This means that an officer is no longer required to have a suspicion that a motorist has alcohol in their body before making an Approved Screening Device demand as long as the Device is in the officer’s possession.
After serving the driver with the Notice of Driving Prohibition and the Notice of Vehicle Impoundment, the officer is required to complete a Report to Superintendent and send it to the Superintendent within 7 days of the incident (see section 215.47(d) of the MVA). The Report to Superintendent must be sworn or solemnly affirmed by the officer. If the Superintendent does not receive the officer’s sworn or solemnly affirmed Report to Superintendent within 7 days of the incident, then the IRP must be revoked, the vehicle released from impound and the motorists driving privileges must be reinstated.
Disputing an IRP
A person who wishes to dispute an IRP must do so within 7 days of service of the Notice of Prohibition. There is no legislative authority to extend this period. Once the motorist disputes the prohibition, they will receive the officer’s Report to Superintendent which details the specifics of the case, (assuming the officer has sent his Report to the Superintendent).
The legislation sets out 2 grounds upon which a person can challenge an IRP when it is served on the basis for a refusal or failure to provide a sample:
- the person was not the driver (which by definition includes being in care and control of a motor vehicle), or
- the person did not fail or refuse without reasonable excuse to comply with the demand.
As in criminal proceedings, the validity of the demand is an important consideration in determining if the person failed or refused without reasonable excuse to comply with the demand. A motorist is not required to comply with an invalid demand. Recall that the MVA has no mechanism by which breath samples can be obtained. The legislation depends for that on the Criminal Code. The Criminal Code requires that the breath demand and sample be made immediately upon the officer forming his suspicion that the driver had alcohol in their body. Therefore, as in criminal proceedings, a sufficient delay between the officer forming his suspicion and administering the test can be a basis upon which to challenge the validity of the officer’s demand. This is just one example of a possibly invalid demand.
If you have been charged with an IRP, contact us immediately. We have extensive experience dealing with IRPs and can offer you invaluable assistance.