We’ve said all along that the IRP law is bad law — you can read several hundred of our blog posts to see our opinion on it. What always surprises us is that it was so poorly thought out by the people who wrote the law and promoted it. They did no scientific testing to determine if it was appropriate to rely on screener breathalyzers to punish people (it isn’t) and they were blindsided by the legal challenges and complex legal arguments we’ve brought on.
One of our biggest concerns, however, was that people who are tested on ASD screeners and punished on the basis of the screening device reading don’t get the benefit of potentially being exonerated by blowing into an evidentiary breathalyzer instrument back at a police detachment. What does this mean for BC drivers?
Some background on the IRP law
Not only did the BC Government not do any scientific testing, they also did no social research when they were putting together the IRP scheme. Oh, they looked at some of the numbers they had already put together, but they didn’t do any further study or investigation beyond the simple statistics they always collected. So based on the data they had, the Government assumed that the real impact of the IRP scheme would be for people who were in the Warn range. They assumed, based on their simple statistics, that two-thirds of all IRPs would be Warn-range IRPs.
No research and weak statistics = wrong answer
And of course, their assumptions were wrong. More than two-thirds of all Immediate Roadside Prohibitions are 90-day IRPs. What that means is that for every 15,000 IRPs that are issued, 10,000 are 90-day IRPs. They expected 5000. That’s a huge difference.
The number of IRPs issued a year is about 15,000. So that means they’re prohibiting about 5000 more people a year for 90 days than they expected. In other words, the numbers are double what they expected.
That’s 5000 more people per year being issued 90-day IRPs. How could the Government be so off on their estimates?
The police are liars
Faced with this discrepancy in their estimates and the eventual stats, the Government had to come up with a way to explain this. We think soul searching should have been the answer, perhaps an external audit or major review of the policies and procedures to figure out how they screwed up so badly. That’s not what our BC Government did, however. Instead they concluded that the police are liars. Or at least, they were liars before the IRP scheme was introduced, but that since the IRP scheme came into effect the police have stopped lying.
Lets take a moment to look at the Government’s logic.
The numbers they were faced with were much higher than expected. This original expectation arose because they looked at the number of 24-hour driving prohibitions issued in the average year before 2010 and compared it with the number of 24 hour prohibitions served along with a 90-day ADP. In the 24-hour and ADP cases you could assume that the person blew a Fail on the ASD. That’s the reason they were ultimately also issued the ADP — they blew over .08 on an evidentiary tester later on on the detachment.
So prior to the IRP law coming into effect, you would see that in two-thirds of all cases the driver who was issued the prohibition was under .08. On that basis, they made their bold prediction about the future of the IRP law, predicting two-thirds would be Warn-range IRPs.
Of course, this isn’t what happened. When the IRP law came out two-thirds were 90-day Fail range and refusal IRPs. The numbers are about the same today.
The Government (again without any new research – just making an assumption) concluded that before the IRP scheme came out, police officers were simply pretending Fails were Warns. Their way to rationalize this was to conclude that prior to the implementation of the IRP legislation, 24?hour prohibitions, rather than 90?day ADPs, were often served to drivers that were over .08.
So their answer was that, prior to the implementation of the IRP scheme, in a third of all cases the police would lie and simply claim a Fail was a Warn.
We don’t think that the police were lying in a third of all DUI cases.
The real answer: The IRP law is bad law
We mentioned the other day to the lack of scientific research to back up the IRP scheme. The Government simple didn’t do any scientific research.
We told you about this because we thought we’d give you a clue so that you could figure out the answer to this unexplained Government failure to accurately estimate the number of 90-day IRPs the police would issue.
What is the answer? Well, prior to the IRP law coming into effect, if you blew Fail on an ASD breathalyzer at the roadside, you were then taken back to a police detachment to blow into an Approved Instrument which is an evidentiary breathalyzer – usually (back in 2009) a BAC Datamaster C .
This particular Approved Instrument is really an impressive machine. It constantly monitors the breath-alcohol content throughout the sampling procedure. It emits infra-red energy thorough a tube extended by mirrors so that the size of the sample chamber is over a meter in length. It tests its calibration before and after each test with an external sample that is itself tested in a lab. It provides a print out of what took place with each sample.
But the best thing about the Approved Instrument is that if you blow a Fail at the roadside, but you’re actually under .08, the Approved Instrument will almost always exonerate you.
Innocent people get IRPs – lots of them
Records dating back to 2009 that we have from the Vancouver Police showed 20% of people being exonerated by the Approved Instrument. As well, officers have told us that they didn’t always record on these logs the people who were exonerated, so the number could be quite a bit higher.
What we have here in the Government’s own numbers are the statistics revealing the failure of the IRP scheme. You just need to read them properly.
Roadside screeners should never be used for the purpose of punishment. From this you can conclude that thousands of innocent people get IRPs.Which is why we say that the IRP law is bad law.
And the irony
We think that the RoadsafetyBC tribunal (formerly the OSMV tribunal) gives the police a significant credibility advantage when reviewing the evidence in IRP hearings. Indeed, there is a major body of case law now making the same point. We think it’s ironic that, on the one hand RoadsafetyBC explains away the errors in their predictions by suggesting the police were liars, while on the other hand the police are assumed to be telling the truth when it comes time for IRP review hearings.
If you have received an IRP:
None of this is funny or ironic if you’re innocent and you received an IRP. We defend IRPs and we succeed in more IRP appeals than any other law firm in BC each month. There are reasons for that. We are relentless when we think people are getting a raw deal. We’re willing to appeal IRP cases to the Supreme Court of Canada.
If you live anywhere in BC and you’ve been issued an IRP, give us a call. We have an IRP lawyer ready to help you, even on Canada Day.
Vancouver 604-685-8889
Richmond: 604-370-3053
Surrey: 604-593-8580