You are pulled over by the police, and the officer makes you blow into a hand-held breathalyzer. You understand that the officer is conducting a roadside investigation. The officer uses words such as “in accordance with the provisions of the Criminal Code” before you blow into the handheld breathalyzer. All of this takes place while you are standing beside your vehicle. The officer mentions that the Criminal Code gives them the authority to take the breath sample and that pursuant to the Criminal Code, you are require to blow. And at some point the officer may tell you about your rights. The entire encounter unfolds as a criminal investigation into impaired driving.
At the end of it, the officer issues you an Immediate Roadside Prohibition. It feels like you have just been charged with a crime. It makes sense that people go home and ask: is an IRP a criminal offence?
An IRP is not a criminal offence. An Immediate Roadside Prohibition (an IRP) is an administrative driving prohibition issued under British Columbia’s Motor Vehicle Act. It is not a Criminal Code charge. It does not proceed in criminal court. It does not result in a criminal record.
What Is an Immediate Roadside Prohibition?
An Immediate Roadside Prohibition is a statutory prohibition that takes effect immediately when a police officer serves it at the roadside.
After making an approved screening device demand, the officer will normally issue an IRP if the device registers a “Warn” or a “Fail.” An officer may also issue an IRP if the officer alleges that the driver failed or refused to provide a sample as required by law.
The officer serves a Notice of Driving Prohibition on the spot and takes possession of the driver’s licence. The prohibition begins immediately. The Notice sets out the length of the prohibition and associated consequences, which can include vehicle impoundment, towing and storage charges, and a monetary penalty. There are a bunch of other consequences that are not explained on the notice that people learn about after the fact, such as having to take the responsible driver program course at great expense.
There is no criminal information sworn, however and there is no appearance in court. There is no criminal conviction. Moreover a police officer cannot turn an IRP into a criminal offence.
Why It Feels Like a Criminal Case
An IRP is created under provincial legislation, however it arises directly out of a criminal style investigation.
From the driver’s perspective, the experience mirrors a criminal process. The stop typically begins as an impaired driving investigation under the Criminal Code. The officer makes a demand to provide breath for analysis into their hand-held device. After you blow, the officer may advise you of your right to counsel. The officer may refer to the Criminal Code offence during the course of speaking with the driver. The factual subject matter is the same conduct that can give rise to a criminal charge.
The government was aware that any roadside prohibition punishment scheme would face constitutional scrutiny.
Criminal law is within federal jurisdiction under the division of powers. Provinces regulate highways and driver licensing. The IRP regime was structured to operate as a regulatory licensing consequence rather than as a criminal prosecution so they could accomplish the same goals without providing the same procedural rights.
They tried to give it aspects of an administrative scheme, using administrative law language, because they knew it would be subject to constitutional challenge and they wanted to persuade the courts that it was administrative. For example, the payment required is described as a “monetary penalty,” not a fine. The prohibition is framed as an administrative action affecting a licence. The proceeding to challenge it is called a review, not a trial. The decision maker sits within the Office of the Superintendent of Motor Vehicles rather than in a criminal court.
The regime was designed to impose immediate and significant consequences while remaining classified as administrative rather than criminal.
At the same time, the legislation was drafted to be severe. The prohibitions are immediate. Vehicle impoundment is automatic. The financial consequences are substantial. The province has publicly emphasized that its impaired driving laws are among the toughest in Canada. The structure delivers harsh practical consequences without creating a criminal conviction for every driver who registers over the limit on a roadside device.
The Review Process
When an officer issues an IRP, the officer initiates the proceeding. The officer’s report and related documents form the evidentiary basis for the prohibition.
A driver who wishes to challenge the IRP must apply for a review within a strict statutory deadline. The review is conducted by an adjudicator within the Office of the Superintendent of Motor Vehicles. All of this is usually handled by the driver’s lawyer.
For 30 and 90-day driving prohibitions, an oral hearing is available. The Superintendent’s own materials recognize that oral hearings are preferred in many cases. The proceeding is not conducted in a criminal courtroom and there is no Crown prosecutor.
The burden and structure differ from those in criminal court. The officer’s evidence is generally provided in written form through reports and certificates. The driver does not receive the same procedural protections that apply in a criminal trial. In a criminal prosecution, the Crown must prove each essential element of the offence beyond a reasonable doubt before an impartial judge. In the IRP regime, the Motor Vehicle Act creates presumptions that operate in favour of the validity of the prohibition. The prohibition stands unless the driver establishes grounds for cancellation within the statutory framework.
The Practical Consequences
An IRP is not a criminal offence. It does not create a criminal record. It does not result in a criminal conviction. Still the practical consequences are significant.
A prohibition can interrupt employment. An employer may see it on a driver’s abstract leading to termination or limits on career advancement. A person who cannot drive may lose work. Insurance premiums can increase. Repeat prohibitions are treated more severely.
The record of the prohibition remains within the driver licensing system and is visible to police And the courts if you’re facing any more serious charge later in life. It can be taken into account in certain administrative proceedings.
The absence of a criminal record does not mean the impact is minor. The classification determines the forum and the legal standard, not the seriousness of the immediate consequences.
The Threat
Occasionally people report to us that the police officer suggested that if they fight their Immediate Roadside Prohibition, the officer would turn it into a criminal charge. It may be possible that people in those circumstances misunderstood the officer and it is also possible that the officer said or implied such a thing.
In any event an IRP cannot be turned into a criminal charge. During the course of an IRP investigation, the police do not collect the evidence necessary for a criminal charge of having a prohibited blood alcohol concentration or operating a motor vehicle while impaired. Moreover part of the compromise allowing the IRP law to exist as a constitutionally valid entity within the legal structure was that Criminal Code investigations would not flow from the issuance of an IRP. What that means is an Immediate Roadside Prohibition cannot be turned into a criminal charge even later on.
What to do
If you have received an Immediate Roadside Prohibition, you have a limited time to seek a review. The issues are technical and the deadlines are strict. You should obtain legal advice right away.
We have been dealing with IRPs since the regime was introduced. If you want to understand your options or challenge a prohibition, contact us.