Sep 10, 2019
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 Immediate Roadside Prohibition (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 an Immediate Roadside Prohibition is 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:
Jun 15, 2018
Cannabis legalization is on the horizon for Canada. There have been many announcements regarding the distribution and possession of marijuana but an additional matter is the impact that this will have on impaired driving. There are pending changes on the federal level but the BC government is proposing to introduce a whole new scheme creating Immediate Roadside Prohibitions for driving while impaired by marijuana and other drugs.
There is much uncertainty about this as there is no established system or method for detecting impairment by marijuana. There are indications that there may be technology in the future that will allow for the presence of marijuana via a saliva test but it is unknown how effective this will be. This leaves police officers with limited options roadside to deal with drivers that they believe are high. Previously, it was common for police officers to issue a 24-hour prohibition for drugs in cases where the officer had reasonable and probable grounds to believe that a drivers ability to operate a vehicle was impaired by drugs. This did not have a review procedure in place. Oftentimes it involved the administration of the Standard Field Sobriety Test or the Drug Recognition Exam by an officer trained in these techniques. Both tests have their issues in that they often can result in false positives. Even blood tests can make it difficult to determine if someone is impaired by marijuana as there is little scientific information available on how much THC needs to be detected in someone’s blood before they are actually impaired. THC can linger in someone’s blood for days or weeks, long after someone is no longer affected by it. This is especially true for medical marijuana users.
The proposed changes create two new driving prohibitions in BC. They will expand upon the 12-hour prohibition for N and L drivers (Class 7 and 7L licenses). Currently, Class 7 drivers cannot have any alcohol in their system while driving. The proposed legislation will expand that to include drugs as well, detected by a “drug screening device”. There is no indication of what these devices will be. This is concerning as 12-hour prohibitions have no review procedure in place. The recourse to dispute one is via judicial review in the Supreme Court of British Columbia, something that is not accessible to the average person and expensive to retain legal counsel for. 12-hour prohibitions also result in RoadSafetyBC prohibiting a Class 7 driver for a longer period, usually by several months. If a driver refuses to comply with a demand to provide a sample for a “drug screening device” they will also receive a 12-hour prohibition. It is concerning that a lengthy driving prohibition in the length of months will result from a prohibition with no established review procedure.
The more serious offence that is being created is a 90-day immediate roadside prohibition for drugs, similar to the current roadside prohibition available for alcohol. This provides three ways for a police officer to issue you a 90-day prohibition; a blood test showing above a specified level in your blood within 2 hours of driving, or having a combination of a specified level of alcohol and drugs in your blood.
These 90-day reviews will have specified grounds of review. These include consuming the drugs after ceasing operation of the vehicle (and that the driver had no reasonable expectation that they would be required to provide a sample of blood), that the person was not impaired by drugs or a combination of drugs and alcohol and the results of the evaluation were due to a medical condition. Much alike the 90-day alcohol immediate roadside prohibitions for alcohol, the demands and testing will mirror the provisions in the Criminal Code. Given the forthcoming changes to the Criminal Code on impaired driving regarding alcohol and drugs, these are likely going to be contested in court. The taking of blood samples is an intrusive means and not easily accomplished roadside by police officers. Furthermore, current drug impairment testing procedures have many options for false positives and inaccurate results.
This will be an interesting development in driving law and will likely result in extensive legal disputes. The tests that are yet to be established will be fundamental to this regime, and its fairness as there is no current effective manner to detect drug impairment. As we are familiar and successful in both criminal impaired driving and the existing IRP scheme, we look forward to assisting our clients with defending charges under this pending regime
Jul 05, 2017
Since September 20, 2010, the Immediate Roadside Prohibition (IRP) regime largely replaced the judicial process in the field of drinking and driving offences. In another words, most drinking and driving cases do not involve appearing in Court. In British Columbia, the police issue an IRP and submit a report to the Superintendent of the Motor Vehicles. There are seven days to dispute the IRP. The review process takes place in written or oral format before an adjudicator in Victoria.
The penalties are severe and swift. Those who the police report blew a “fail” or “refuse to blow” will immediately lose their driver’s licences for 90 days. In addition, the vehicle they were driving is impounded for 30 days. There are also significant requirements for participation and completion of the Responsible Drivers Program and the Interlock Ignition Program. There are also significant financial consequences including the towing and storage fees for the impounded vehicle and the costs of required programs. An IRP also means a serious alcohol related offence on one’s record which can carry lasting negative consequences.
The area of drinking and driving is very specialized and the issues are technical and can be quite complicated. What would be relevant in a criminal case may be very different than what is important on an IRP review.
Filkow Law is a leading authority and expert on IRPs and all drinking and driving offences. This area of the law is highly specialized. If you receive an IRP or other drinking and driving offence, please contact 604-558-8778 for legal assistance.
Dec 16, 2015
December is a busy time of year for all of us. Friends and families come together, enjoy good company, food and wine… and maybe beer… and vodka… and a long drive home. It is no surprise that impaired driving rates are highest in December. In fact, there were an estimated 24,000 cars stopped at BC police check one December Friday night alone. Inevitably, your chance of receiving an Immediate Roadside Prohibition or being charged with a driving offence is exponentially higher during the holiday season.
An Immediate Roadside Prohibition (commonly referred to as an “IRP”) is a driving prohibition issued under the British Columbia Motor Vehicle Act to drivers found to have a blood alcohol concentration of 50 milligrams per 100 millilitres of blood (50 mg% or 0.05 BAC) and above. These prohibitions begin immediately, and can vary in length from 3 days (if you blow a WARN) to 90 days (if you blow a FAIL or refuse to provide a breath sample).
If you receive a 90 day prohibition, your vehicle will also be impounded for 30 days, and you will be responsible for the costs associated with towing and storage. This is accompanied by a $500 fine, a $250.00 license reinstatement fee, and a referral to the Responsible Driver Program, which costs over $800. Another possible consequence of an IRP is a referral to the Ignition Interlock Program, which will cost you over $1000, plus maintenance fees.
What many people don’t know about Immediate Roadside Prohibitions is that you have 7 days to dispute them. If you do not respond within 7 days, your IRP will be confirmed, it will remain on your driving record, and you can look forward to paying all those fees listed above! Not exactly the type of gifts you had in mind this holiday season! It is very easy to get caught up in all the holiday madness and forget this crucial deadline.
If you or someone you know have received an Immediate Roadside Prohibition or have been charged with a driving offence, contact Filkow Law at 604-558-8778 for proper legal assistance. Filkow Law is a leading BC law firm experienced dealing with drinking and driving offences.
Aug 10, 2015
BC Police forces have begun using the new Alco-Sensor FST for use in Immediate Roadside Prohibitions. This new breathalyzer has several important differences over the previously used versions. The new version has been designed to attempt to limit the amount of user-errors by the police that were being observed and leading to unreliable results.
First, the device is programmed to not accept a sample if it is expired. It is also programmed to not accept a sample if it is outside of the now-expanded temperature range.
Secondly, the device has a completely different set of messages that are possible compared to the old devices.
This will likely eliminate many of the factors that would historically lead to unreliable test results with previous devices, but there are still some factors that can indicate whether an FST reading is reliable or not.
If you have received an Immediate Roadside Prohibition, it is very important to have an experienced lawyer review your case and get proper legal advice as to whether your test results can be relied upon.