What happens if you receive a 90-day IRP for blowing Fail but there is persuasive evidence you were under .08?
The Sivia decision found the IRP law unconstitutional for the very reason that you couldn’t advance the argument that you were innocent during your hearing before the OSMV tribunal. Simply put, even if there was evidence you were under .08 (what is called “evidence to the contrary”) they wouldn’t consider it. So the Court found that was a constitutional violation, and the Government claimed that they would go back to the drawing board to fix it.
No fix = Government bad faith:
We didn’t believe the Government when they claimed that things would be different with the new IRP scheme. The legislative amendments purported to impose an obligation on the Office of the Superintendent of Motor Vehicles to lift 90-day Immediate Roadside Prohibitions if the applicant at the review had evidence to support on a balance of probabilities that the he or she was in fact not over .08 when they were asked to blow. This means that you should be able to testify, provide whatever supporting material you have and if the evidence calls the reading into question, then the IRP should be lifted. Your evidence should not be rejected out of hand.
The evidence is simply you versus the police. You should be given as much regard in your evidence as the police are with theirs. The police should not be deemed to have a credibility advantage, nor should any special consideration be given to the credibility of the ASD reading.
In Spencer v. The Superintendent of Motor Vehicles the Court said that the tribunal shouldn’t apply ad hoc semantic tests to the applicant’s evidence. The tribunal’s reasoning should not be fundamentally at odds with basic concepts of fairness and impartiality. And the evidence shouldn’t be parsed in a way as to rationalize a desired outcome. Rather, the tribunal should fairly consider the evidence.
But nothing substantive has changed as a result of the Spencer or Sivia rulings. The Government had no intention of changing the scheme, despite claiming that they would fix the system. And the IRP 2.0 scheme is the same crappy scheme that it was before these Court decisions. The proof is that no one ever succeeds with an evidence to the contrary argument.
IRP Decisions:
Because we suspected that the Government had no intention of changing things, we made FOIs (Freedom of Information requests) for the successful 90-day IRP review decisions from July and August. Then we went through them. There were no decisions in this two month period where applicants succeeded on an evidence to the contrary defence. Essentially ignoring the spirit of the Sivia decision, the IRP decisions of this 2-month period show the tribunal will not revoke an IRP on the grounds that the person was innocent as established via evidence to the contrary.
Making policy:
The OSMV tribunal makes its own rules. There is no provision in the Motor Vehicle Act limiting you to a 30 minute hearing, but the tribunal decided as a policy to cut you off after a half hour. The Court in Spencer v. The Superintendent said if there is evidence relevant to the hearing, the OSMV should adjourn the case and go get it. However, the OSMV tribunal ignores this. The tribunal has adopted a policy to operate as though the Spencer decision does not exist and never adjourn a case for this purpose. They adopted a policy to never seek more evidence if the existence of the evidence was identified by the applicant.
And a review of the decisions from July and August 2012 indicates that despite Sivia and the changes to the legislation, they will not accept an evidence to the contrary argument unless you could show that the ASD was malfunctioning or you made the argument in conjunction with one of the accepted pre-Sivia defences.
What does this mean?
It means that the tribunal decided to make policies that are contrary to the Court rulings in Sivia and Spencer and that the changes to the legislation are nothing more than window dressing.
Presenting persuasive evidence you were under .08 is insufficient to succeed at a review hearing before the OSMV tribunal. Don’t be deceived by their cute videos or simplistic descriptions of the process. The review of an Immediate Roadside Prohibition is an adversarial process. Not only do you need to have the evidence that you are innocent, you need to make it so that upholding the IRP would grossly embarrass the Government if the matter is later reviewed in Court.
The Government is the adversary.
As the Court noted in Spencer:
The unfairness inherent in the approach taken by the delegates in both Gilles and here certainly hints at larger questions about whether the delegates are equipped with the degree of training or independence necessary to conduct fair hearings, or to demonstrate that they do so.
The Government could say that applicants are not providing persuasive evidence. Given the evidence we’ve seen and the number of decisions rendered, the Government could be easily refuted.
We have not seen any perceptible improvement in the tribunal since the Spencer decision. Simply presenting truthful and substantive evidence you were under .08 will not be enough to succeed at the review of your IRP. Which is why we’re taking these cases to Court.