A 90-day IRP for blowing Fail or refusing to blow is a nightmare. It’s a catastrophic blemish on your driving record. It’s an ongoing painful expression of arbitrary government oppression. But is an IRP a DUI? It’s a question we’re asked four or five times a week. And the answer is: sort of. And the answer also requires a bit of background on how we got to this state of the law in the first place.
What is a DUI?
Although the acronym DUI is part of the popular vernacular in Canada, it is not used in Canadian law. It is an American import that doesn’t have a direct translation into Canadian English. In the US it commonly refers to the offense of driving under the influence of alcohol. The “influence” is not a standard that we use in Canada. We’re not sure why, but it seems likely that Canadian legislators were probably attune to the ambiguity of the word. If you’re driving to the liquor store because you really want some alcohol, are you being influenced? If you hate alcohol and that makes you angry while driving, are you being influenced?
So we don’t use the term “influenced” in Canada. There is an offence in the Criminal Code of driving or having care and control of a motor vehicle while impaired in the ability to drive by alcohol. This is usually called “impaired driving.”
There is a separate criminal offence in Canada for cases where the evidence shows a blood-alcohol concentration is in excess of 80 mg in 100 ml. When the blood-alcohol concentration just barely exceeds .08, (.09 for example) a charge of driving over .08 is not usually approved by the prosecution because there is a reasonable doubt, just on the face of it, that the person was over .08 at the time of driving.
Although you can be charged with both criminal offences of impaired driving and driving over .08, you can only receive a conviction for one of the two offences arising from the same driving incident. This is because there is really only one wrong committed: the act of driving or having care and control of a motor vehicle while posing a threat to the public because too much alcohol has caused the subject to be impaired in their ability to drive.
Is an IRP a DUI?
A funny thing about IRPs is that the legislators in BC saw fit to create a standard that would protect the public from some of the weaknesses in the IRP law. The law says that a police officer must have grounds to conclude that the subject is affected in their ability to drive before issuing an IRP for Warn or Fail. This protects the public from arbitrary police behaviour and breath testing problems.
If properly applied, this test reduces the probability of a huge number of people wrongly being issued an IRP. And indeed, the BC Supreme Court has recognized this test in the Wilson decision. Unfortunately, the Wilson decision, a sound piece of law, is ignored by the Government’s review tribunal office. This office, part of the OSMV, is where they conduct the IRP review hearings and make the decisions about their own law.
We have never been able to figure out what the difference may be between “affected” or “impaired” by alcohol in the ability to drive. The term “affected” used in this context suggests a change in physical state. As far as driving is concerned, it would suggest a change that reduces the skill and ability of the driver. Certainly the Government isn’t expecting to punish people who drive better because they’ve been drinking. This would be absurd. So in this context, affected seems to mean impaired. The word choice seems to arise for other reasons.
Actually, there are interesting reasons that the BC Government used “affected” instead of “impaired” when referring to the effects of alcohol on a person’s ability to drive. Because the “impaired” standard was already in use in the Criminal Code, which is the purview of the federal government, the provincial government decided to not use it for fear that their law would be deemed unconstitutional as outside of their legislative authority granted in the 1867 BNA Act. So in writing these sections of the Motor Vehicle Act they settled on “affected” instead of “impaired.”
This seemed dandy to the people who wrote the original section of the Motor Vehicle Act concerning 24-hour driving prohibitions. They came up with a clever word-use trick that would allow them to say that they weren’t usurping powers from the federal government. A problem arose, however.
Getting off on a technicality
The problem was that police officers couldn’t keep the two standards straight. Often police officers would testify that they thought the accused was “affected” by alcohol in their ability to drive. On a plain reading of the Criminal Code this allowed many people to avoid a conviction for impaired driving.
It was a nice legal loophole that we used all the time to protect our clients from a criminal drunk driving conviction. And that was dandy from our perspective. It worked great until one day a judge pointed out that “affected by alcohol” can only really mean negatively affected, which is the same as “impaired” by alcohol in one’s ability to drive.
Unexpected Consequence
The judge who saw fit to close that legal loophole inadvertently opened a loophole for the BC Government to pass the IRP law. They could now argue that their standard, which had never really faced any significant challenge on this point, had been around so long that it must be constitutionally valid.
You see? It turns out that “affected” meant “impaired” all along. At least that’s the Government’s spin. And “affected” is something that the BC Government has used for a long time. So it must be okay. You see?
This is sometimes called Bootstrapping:
In law, bootstrapping can also refer to an attempt to gain jurisdiction over a non-jurisdictional matter by its circuitous relationship to a jurisdictional matter.
The BC Government has managed to gain jurisdiction of impaired driving through a circuitous route. They have usurped the authority of the federal government by making driving while affected by alcohol an offence, duplicating the offence in Canadian Criminal law, albeit with different consequences.
The people who write the laws can be sneaky bastards. But we’re onto them.
At this point in time, when it comes to the legal standard, an IRP is a DUI, only without a criminal trial or a criminal record.