We are still being contacted by people who are of the mistaken belief that they may be charged with a criminal offence if they dispute their Immediate Roadside Prohibition. Many people tell us that the police told them that they would be charged if they filed for a review.
We’ve been clearing some confusion about IRPs since they were first introduced. Perhaps the most important thing you should know if you’re considering disputing your IRP is that you cannot be charged with impaired driving or driving over 80ml in 100mg if you are issued an IRP. The reasons are simple.
To charge a person with driving with a blood-alcohol concentration in excess of .08mg%, the police must have admissible and proper breath test results from an Approved Instrument or blood test results similarly obtained. In British Columbia the Approved Instrument used is the reliable but still problematic BAC Datamaster C.
Whenever the police issue an IRP they do not conduct further tests to gain evidence to then prove a driver’s blood-alcohol content. Approved Screening Device (ASD) tests are inadmissible in any court in Canada to prove the concentration of alcohol in a person’s blood.
As for impaired operation, if the police use an ASD, the logical conclusion is that they were unsure of whether the subject was impaired. So it is generally an insurmountable hurdle to then persuade the Court that the police were wrong in their interpretation of the evidence they observed themselves. Which is why ASD cases rarely lead to an impaired conviction.
So why do the police lie to people? Sometimes the facts make them look bad and they may not want anyone to review the police report. Sometimes the police are just being jerks.
In non-roadblock situations, people were often told that they would be arrested and charged if they wanted a second sample. We assume that this threat arose because the police did not have another ASD with them.
In any event, if you receive an IRP do not choose to simply accept it because the police threatened to charge you. Similarly, if you lost on your review, do not let that hinder you from seeking a remedy from the Court. If you received an IRP, reviewing it or winning on review will not trigger criminal charges, regardless of what the police told you.