Although the IRP law with respect to 90-day prohibitions for Fail was found to be unconstitutional, the law was left on the books until June. The Government argued that it was necessary to save lives. And the Court more or less accepted that argument. But the police stopped applying the IRP law, probably because they were uncomfortable using an unconstitutional law which might open them to liability. And it clearly was not needed to save lives because the drinking and driving stats in the last few months are the lowest in years.
So we are in legal limbo. The law is on the books, but it is not applied. The Government succeeded in the continuance of punishment for those who did not hire a lawyer to appeal their case. Our clients are now back on the road while this matter is sorted out in the Courts. The Government is trying some creative legislative drafting to make sure they do not need to pay anyone back for their mistake.
Interestingly, the Court was not told about the strange implications of leaving the law in place. Think for a minute about the following scenarios:
1. Subject blows “Warn” then demands a second sample. The subject then blows “Fail”
In this case, the officer would not be permitted to detain the subject to blow into a BAC Datamaster. The officer could not issue a 3, 7 or 30-day prohibition because the second sample was not “Warn.”
The only thing the officer could do is issue a 24-hour driving prohibition.
2. Subject is considering refusing
If they are told the truth by the officer (admittedly this is rare) that if they refuse they will get an IRP but if they blow a “Fail” they will be arrested, they may make the sensible choice to refuse to provide a roadside sample.
The state of the law creates an incentive to refuse. If you blow a “Fail” you face a criminal charge but if you refuse you will likely just get an IRP. Interestingly, if the officer gives you incorrect legal information at the roadside it may be a defence to an allegation of ASD refusal.
3. Subject blows “Fail” and demands a second sample pursuant to the IRP law which is still on the books
The police are not required to tell you that you have the right to blow again into another ASD when you blew “Fail” the first time. We noticed that they did tell people if it was a roadblock, but not if they simply pulled the subject over with nobody around. If they are arresting you, you do not have this right in any event. But so many people now know of it, some people are requesting a second sample in another ASD.
The second sample provision is one of the more idiotic parts of the legislation. It was rarely correctly complied with by the police and it was impossibly complex for anyone at the roadside to understand without first speaking with a lawyer. It did not eliminate any of the concerns about a contaminated sample, and in the case of Vancouver there was a good chance that both units were giving wrong results. It accomplished nothing. But it gave the impression of fairness.
There are two or three other peculiar scenarios we have thought of but not seen in the last 75 days.
It seems to us that it was inappropriate for the Government to seek a delay before the law is declared invalid. In any event, we expect that the new legislation will be introduced any day. The people who came up with the last scheme are working hard to come up with something equally draconian (to appease the lobby groups) and cheap.
P.S. If you are planning to refuse to blow into an ASD, we advise against it. There are still more defences if you blow than if you refuse. And you could always be charged with the criminal ASD refusal charge. Best is to not drink before driving.