The BC Supreme Court released an important decision last week in an IRP appeal hearing. This decision opens the door for defences to IRPs that should have worked from the beginning. The decision is located here: Wilson v. British Columbia (Superintendent of Motor Vehicles) 2013 BCSC 1638. This is another example of the crumbling IRP scheme that we’ve discussed before.
The Motor Vehicle Act specifically states that, in order to issue an Immediate Roadside Prohibition, a peace officer must make a demand under the Criminal Code for a breath sample, the result must be either a Warn or a Fail, and the officer must believe as a result of the analysis that the person’s ability to drive is affected by alcohol.
Until last week, the Superintendent’s office refused to consider whether or not there was evidence that the driver’s ability to drive was affected by alcohol. IRPs were regularly issued to individuals who displayed no symptoms of intoxication whatsoever, and these IRPs were upheld on review.
In the Wilson case, the driver blew a “Warn” on an ASD and was issued a 3-day prohibition. The only symptom of alcohol consumption Mr. Wilson displayed was an odour of liquor on his breath. At the hearing, it was argued that the police officer did not have reasonable grounds to believe that Mr. Wilson’s ability to drive was affected by alcohol.
The OSMV rejected this argument, saying that the Notice of Driving Prohibition stated the officer’s belief, and that the WARN reading itself was evidence that Mr. Wilson’s ability to drive was affected by alcohol.
In speaking of this approach, the Court held:
[20] If the legislature had intended for a Notice to be issued strictly on the basis of a WARN reading, it could have done so by eliminating the need for the peace officer to believe that the analysis indicated the driving ability to be affected.
[21] A plain reading of the legislation requires more than just a WARN reading. There is no presumption that a driver’s ability to drive is affected by alcohol solely on the basis of a WARN reading.
[22] Unless Mr. Wilson’s ability to drive was affected by alcohol, the peace officer had no basis upon which to issue the Notice.
If you were unsuccessful appealing your IRP to the Superintendent of Motor Vehicles because you were not affected by alcohol (ie, that you argued you were not “drunk” or “impaired”) we believe that you should be entitled to a re-hearing based on this BC Supreme Court decision.
If you have recently received an IRP Immediate Roadside Prohibition and believe that your ability to drive was not affected by alcohol, contact us. You may have a defence.