If you have recently received an Immediate Roadside Prohibition, you may want to know how to lodge an appeal. This blog will explain the Immediate Roadside Prohibition appeal process and how to avoid some common pitfalls.
One thing to bear in mind is that the process is not designed to be easy. In criminal trials, defendants are innocent until proven guilty. This is not the case with IRP appeals. The burden of proof is on the applicant. That means it is up to you to provide evidence that the prohibition was issued incorrectly.
Another thing to remember is that your chances of successfully appealing an IRP vastly improve if you hire a lawyer. A dedicated impaired driving lawyer understands the Immediate Roadside Prohibition appeal process and how to build a defence that works.
Start of Immediate Roadside Prohibition appeal process
If you blow a “Fail” on an approved screening device (ASD) or a police officer decides you refused or failed to blow into an ASD, they will issue you an IRP. From the moment the IRP is handed over, you are prohibited from driving for 90 days. Additionally, you will receive a $500 fine, a $250 licence reinstatement fee, a $31 short-term licence administration fee and your vehicle will be impounded for 30 days.
What’s more the Superintendent of Motor Vehicles may order you to enrol in the Responsible Driver Program and have an ignition interlock device in your vehicle when your prohibition ends.
If you believe the IRP was issued unjustly, whatever you do, do not pay the fine. Paying the fee amounts to an admission of guilt and you will have no recourse to overturn the IRP.
Once you decide to start the Immediate Roadside Prohibition appeal process, it is crucial you do not waste time. You only have seven days to file an appeal. If you miss this deadline, it amounts to a guilty plea. You may still be able to overturn your IRP if this happens but it makes things much more difficult.
Decide grounds for review
Before you start your appeal, you should decide the grounds for appeal. Under the review process, there are only 13 possible grounds for review. In order to make an appeal you must meet one or more of these grounds.
The grounds are:
- You were not the driver
- You were not advised of your right to a second test on an (ASD)
- You requested a second breath test, but the officer did not perform one
- Your second test was not performed on a different ASD
- The prohibition was not served on the basis of the lower of the two ASD results
- The result of the ASD test was not reliable
- The ASD did not register a WARN reading
- The ASD registered a WARN, but your blood alcohol content was less than 0.05% BAC
- The ASD, which formed the basis of the prohibition, did not register a FAIL reading
- The ASD registered a FAIL, but your blood alcohol content was less than 0.08% BAC
- Your seven or 30-day prohibition should be reduced because you did not have any previous IRP(s)
- You did not refuse or fail to comply with a demand for a breath test
- You had a reasonable excuse for refusing or failing to comply with a demand.
In our experience, only a few of these grounds make up the vast majority of successful IRP appeals. You can see why. Some of these grounds are unlikely to happen in the first place, such as a police officer issuing an IRP after an ASD did not register a “Fail” or “Warn” reading.
Successful IRP appeals often boil down to two issues: unreliable ASD results and incorrect police procedures. If you can establish one of these apply to your case, your chances of success vastly improve. It is highly recommended that you discuss the details of your case with a lawyer. They will know which of the grounds best applies to your case.
Written or oral appeal
If you decide to appeal you can choose between two types of review hearing: written or oral. Written reviews cost $100 whereas oral hearings cost $200. Appeals are not decided in Court but instead by an adjudicator at the Superintendent of Motor Vehicles.
If you pick a written review, you must submit documentation in support of your appeal. An adjudicator will then decide whether to approve or dismiss your appeal based on a comparison of your submission and the police officer’s evidence.
If you opt for an oral hearing, more time is granted to prepare the case. You will still submit a written evidence package to the adjudicator but you or a lawyer on your behalf will also have a scheduled appointment over the phone to present your case and address any questions and concerns.
IRP review form
In order to file your appeal, it is necessary to go to an ICBC licensing centre to get an application for review. After carefully filling out the form, it is necessary to return to an ICBC office hand it in along with the submissions needed to support your appeal. The documentation is then faxed over to the Superintendent of Motor Vehicles.
Once the IRP dispute is filed, the Superintendent of Motor Vehicles must disclose all the evidence against you. You or your lawyer can then comb through the disclosure, which may or may not affect how you decide to progress with your appeal.
Following the review hearing, the adjudicator will notify you by mail whether your IRP was revoked, varied or upheld.
Do I still have options if my appeal fails?
If the adjudicator upholds your IRP, you may still be able to have it overturned if you proceed with a judicial review. Judicial reviews are heard at BC Supreme Court. They are not opportunity to rehear the evidence and the Court will only overturn an IRP decision if it finds the adjudicator made a mistake in their decision-making process.
If you need help with the Immediate Roadside Prohibition Appeal process, it is highly recommended you speak to a lawyer. Call Acumen Law on 604-685-8889.