Background to 90-day IRP Prohibitions: DUI in BC

If a police officer in BC compels a person to blow into a roadside breathalyzer (ASD) and the officer alleges that the device registered a “Fail” the officer will:

Serve the person an IRP Notice of Prohibition
AND
Take their licence
AND
Impound their Car.

This is just the start. The investigation all happens at the roadside. If the officer alleges that you refused to provide a sample, the validity of the ASD demand may be considered by the adjudicator. The review uses different rules than those used by the courts in a criminal investigation.

Types of Review Hearings

There are two types of Review Hearings: Oral Reviews and Written Reviews. We have conducted hundreds of review hearings and in our experience you have a greater chance of success on an Oral Review. Unlike a traffic ticket where the standard of proof is beyond a reasonable doubt, the adjudicator must be satisfied on a simple balance of probabilities that the the subject was a driver and blew Fail on an ASD or refused to blow. The grounds for review are greatly restricted and the evidence required to succeed must be almost overwhelming.

The Review Hearing

The oral Review Hearing is conducted over the phone. Before the hearing a Report to Superintendent that was completed by the police is provided to you or your IRP lawyer. An adjudicator from the office of the Superintendent of Motor Vehicles presides over the hearing. In most cases, your lawyer conducts the hearing for you. The adjudicator’s decision will be sent to your lawyer, usually close to 21 days after the prohibition started.

Oral Hearing

Evidence can be presented at the hearing or submitted in writing to the Office of the Superintendent before the hearing date. There is not a prosecutor speaking to the matter. Unlike a traffic ticket, the evidence must simply prove the allegation on a balance of probabilities.

The IRP Controversy

On November 30, 2011 the BC Supreme Court held that the 90-day IRP scheme facilitated a Charter violation of everyone who was issued such a prohibition. With respect to alleged Fail breath samples, the Court said that the law could not be justified in a free and democratic society. As a result, the police stopped issuing 90-day IRPs for Fail.

In the spring of 2012, the BC Government introduced changes to the legislation in the three weeks before the end of the legislative session. With little debate or discussion, the legislation was enacted bringing back the scheme with a few minor changes. As of June 15, 2012, the legislation was back in effect and the police in BC once again started issuing 90-day IRPs for Fail. The legislation has been changed several times since being re-enacted in 2012. The changes have been designed to make the system less fair in our experience.