An Immediate Roadside Prohibition (“IRP”) occurs when a driver fails or refuses a roadside breath sample from an Approved Screening Device. This is the most common method the police use in British Columbia to combat drinking and driving. An IRP is not a criminal offence and instead involves a prohibition issued roadside, typically for 90 days, and the vehicle being impounded for 30 days.
If you receive an IRP and are in an accident, you do not automatically forfeit coverage for the accident. If you received an IRP following an accident, it will present a red flag for ICBC to investigate the claim further to determine if a breach of coverage occurred, but simply receiving the IRP itself does not mean you lose insurance coverage.
An IRP will identify to ICBC that alcohol is potentially involved in the accident, and will prompt them to look further into the claim to determine to what extent alcohol may have played a role in the accident.
In an insurance investigation relating to an impaired driving collision, the burden falls on the insurer to prove that the driver was impaired to a degree that he or she was incapable of proper control of the vehicle.
This is identified at Section 55(8)(a) of the Insurance Vehicle Act Regulations where it states as follows:
(8) An insured is deemed to have breached a condition of section 49 and Part 6 if
(a) the insured is operating a vehicle while the insured is under the influence of intoxicating liquor or a drug or other intoxicating substance to such an extent that the insured is incapable of proper control of the vehicle
There are several decisions of the BC Supreme Court that expand on this. The onus is on ICBC to prove the insured is incapacitated on a balance of probabilities. Further, it is necessary for the Corporation to prove the insured’s state was beyond impairment to a point he is incapable of driving properly. It necessarily follows that the state of incapacity cannot be established by the mere proof that the breathalyzer reading exceeded .08. (Kim v ICBC).
Proof of impairment or of an illegal level of alcohol in the blood is not, by itself, sufficient. Nor is proof of drinking and negligence enough. The insurer must establish that in all the circumstances of the particular case there was an incapacity to exercise proper control. (MacGregor v. ICBC).
On the other hand, where the driver exhibits considerable symptoms of intoxication, evidence can be used to make such a finding. (Smissen v. ICBC).
It is important to be cognizant of the law in this area when dealing with an accident claim as ICBC may attempt to deny your coverage relying on limited and insufficient evidence. If you receive an IRP and are in an accident, you should contact a lawyer right away to assist with the claim.