Automatic Prohibition? Criminal DUI?
What’s in a name?
When it comes to drinking and driving law, a great deal is contingent on the words that are used. For example, in the legislation that introduced the Immediate Roadside Prohibition law, an IRP is actually called an Automatic Roadside Prohibition. So instead of IRP you may see in some documents a discussion of an ARP, ARPs or an Automatic Prohibition from Driving.
What happened was that after the law was written, somebody in the Government noticed that if you called this new DUI an “Automatic Prohibition” you couldn’t blow this piece-of-crap law past a judge. Courts aren’t in the business of condoning “automatic” punishment, because the word implies there is no due process.
So, in a really smart PR move, the Government rebranded Automatic Roadside Prohibitions as Immediate Roadside Prohibitions. This was successful and now if you have a DUI in British Columbia what you really have is an IRP.
What makes something “Criminal”
One argument that the Government uses to justify the IRP review process is that IRPs aren’t criminal. It’s true. An IRP isn’t a criminal offence. Criminal offences are spelled out in the Criminal Code of Canada and a conviction for a criminal offence means that you have a criminal record. Driving with a blood-alcohol concentration over .08 is a criminal offence. If you’re convicted, you get a criminal record and punishment. What about an IRP?
If you get an IRP you’re not facing a criminal charge. The fines and costs are similar to a criminal DUI, and in fact they’re quite a bit higher than the fines for a criminal DUI about a decade ago. A Fail or Refusal IRP lasts for 90-days. This was the criminal driving prohibition just over a decade ago. And the IRP goes on your driving record where it stays forever.
Because an IRP is recorded on your driving record and the hearing isn’t in court, the Government refers to it as an “Administrative Prohibition.”
You can’t get a pardon for your driving record, but you can get a pardon of your criminal record. The IRP is never taken off your driving record. If you ever need to present your driving record to anyone, they will see that you “got a DUI” back in 2014 (or whenever).
The stigma of an IRP is arguably much worse than the stigma for a criminal DUI. Usually if there is significant punishment and significant stigma attached to an allegation, there will be a vigorous and onerous process to prove the allegation. For example, in a criminal charge the prosecution must prove their case beyond a reasonable doubt.
The Court, however, has accepted the Government’s position that because IRPs aren’t criminal, there can be a relaxed “administrative” process. We find with IRPs that the standard of proof and the burden of proving the case is reversed from what we see with criminal files, despite the ostensible process.
Bearing in mind the never-ending record of an IRP on the driver’s abstract, as far as we’re concerned an IRP is more stigmatizing than a criminal DUI. For that reason alone there should be a vigorous and onerous process to prove the allegation.
Instead with an IRP you have a 30-minute hearing using the evidence that the Government will allow you to have to prove their case and none of the evidence that may exonerate you.
By calling IRPs Administrative instead of Criminal, the Government was able to persuade the Court that an IRP is something less than a criminal offence. This, in turn, permitted the Government to create a review process devoid of the tools to get to the truth.
And one result is that over and over innocent people end up with IRPs. Which you might want to refer to as an Automatic Prohibition.