In British Columbia there are various DUI impaired driving prohibitions and due to the crossover of federal criminal laws and provincial highway laws it can get a little confusing. Because there are several different types of DUI driving prohibitions, understanding an impaired driving prohibition is more difficult than you might imagine. Plenty of lawyers are completely unaware of the many types of impaired driving prohibitions. This is the type of work we do so we know it inside out.
90-day driving prohibition / IRP DUI
The most common type of impaired driving prohibition in British Columbia is a 90-day Immediate Roadside Prohibition or “IRP.” It’s a strange driving prohibition when it comes to how it fits in the law.
IRPs are issued right there at the roadside and they have horrible consequences. The most unsettling thing, perhaps, is that it all comes down to what the police officer says and there is no opportunity to challenge the police officer in court.
IRPs are also issued based on a roadside breath tester. These devices are called “screeners” because they were originally intended to screen people to determine if they should be further detained and investigated for a criminal impaired driving DUI case. They were never intended to be used for punishment. But that’s how they are used now in BC.
The BC Government created their own in-house tribunal rather than having IRP cases go to court. That tribunal now calls itself “RoadSafetyBC.” The name itself suggests that they are on a mission and it’s not a mission of fairness. In fact, they have taken the position that the Charter of Rights and Freedoms doesn’t apply to their tribunal decisions if the person blows a “Fail” on a police alcohol screener. Even if the police only stopped people with darker skin, there is no remedy from the RoadSafetyBC tribunal because they say the Charter of Rights doesn’t apply to them.
An IRP does not result in a criminal DUI conviction
The police will often tell people that they’re doing them a favour by giving them an IRP because there is no risk of a criminal DUI if an IRP is issued. Part of that is a lie. They are not doing anyone a favour. They usually say that to exert control over the person. It’s an implied threat. The reality is that when the police issue an IRP they have not collected the evidence to pursue a criminal DUI charge.
The courts (unlike the RoadSafetyBC tribunal) do not accept the result from a screener as evidence that a person was impaired. The courts need more, and the police don’t bother to collect more because the person is released with their paperwork right there are the scene. So on the basis of the IRP evidence, there is never a situation where there are criminal charges and an IRP does not result in a criminal conviction.
An IRP also has this strange aspect: the vehicle is seized for 30 days and the OWNER must pay for towing and storage of the vehicle. It’s hard to make a rational connection to the incident and blaming the owner which might be a company or just someone who lent out their car. The owner is just as likely to be a victim.
It gets confusing with 90-day ADPs
Just when you think you’re getting your mind around the weird legal world of IRPs, along comes Administrative Driving Prohibitions or “ADPs.” These are weirder yet, but they’ve actually been around longer than IRPs.
So, same government tribunal, RoadSafetyBC, and same view that you have no remedy under the Charter of Rights, (the police can assault you and they will still consider the breath test results) but when you are issued an ADP there is almost always a criminal DUI impaired driving charge that comes with it.
The quick way to determine whether you have an ADP or and IRP is at the top of the Notice of Prohibition where you can see the acronyms. As well, an ADP does not come with a 30-day vehicle impound (yet) so you know you got an ADP if you weren’t issued a vehicle impound notice.
What are 90-day ADPs?
Both IRPs and ADPs are considered “Administrative” meaning the government can deny you a right to a trial, but they can punish you with a driving prohibition provided there is a review process. So with an ADP there is immediate punishment with the possibility of a review but that does not stop the government from also prosecuting you in the non-administrative manner, i.e. in criminal court.
When the police conduct a criminal impaired driving investigation, they also collect the evidence necessary to issue an ADP. This allows the government to punish people two ways: first there is the ADP that starts right away and runs 90 days and then there is the criminal court process which, they hope, ends with a conviction and a criminal record.
Because an ADP is based on evidence gained in a criminal investigation, it doesn’t rely on the results of the screener breathalyzer. The results come after the police either take the person back to the police station to blow into a big beige breathalyzer or the person has their blood taken, usually at the hospital if they are injured.
When the police gather the evidence used for the impaired driving criminal DUI case, they consequently gather the evidence for the impaired driving prohibition that arises from being served the ADP.
Criminal conviction / impaired driving prohibition for criminal DUI
IRPs and ADPs start right there when the officer hands you the papers. We call this “service” which is service of the documents.
The most significant impaired driving prohibition doesn’t start at that point. It starts when the court renders a decision.
If you are issued an ADP, you are almost always issued a document that requires you to attend court to answer to a charge of impaired driving. It doesn’t always happen at the same time. The government has a year to charge you with a criminal DUI. In most cases, that’s what they do. But being charged doesn’t mean that you have a criminal impaired driving prohibition. That comes down to a decision from the court.
In criminal court we have this idea from a bygone era that you’re innocent until proven guilty. As far as the impaired driving prohibition is concerned, what that means is that you aren’t subject to an impaired driving prohibition until the court finds you guilty. And if you can prove that the police officer sexually assaulted you, for example, you can ask for the case to be thrown out. You can’t get a case thrown out for such acts with an IRP or ADP, where the list of what the police can get away with has no end.
The criminal impaired driving prohibition does not start until the judge gives their sentence and the shortest prohibition the court will order is one year. That is the minimum fixed in law. The court will make it a longer driving prohibition based on the persons driving record or the circumstances of the case.
The worst-case scenario
If a person is issued a 90-day ADP and is then convicted of a criminal code DUI driving offence, then the total driving prohibition from the two legal processes starts with 15 months and goes up depending on the sentence given by the court.
The unfortunate part
Sadly, many innocent people are issued IRPs and ADPs and will never get justice because justice isn’t the point. The review process lacks the processes to get to the truth.
Criminal court also doesn’t get to the truth – that’s not the point of our justice system. It resolves issues using established principles. It’s a system of making decisions to permit the functioning of society. What that means is that innocent people also end up convicted and with impaired driving prohibitions but it’s much less likely than in the deficient Administrative prohibition reviews. We wish it wasn’t so but of course the world is far from perfect.
We solve these problems
If you have an impaired driving prohibition, you might have noticed that this is what we do. We defend them. Our lawyers have been defending these impaired driving prohibitions in BC for over 22 years. We know the ins and outs and our knowledge of all the legal processes for DUI impaired driving prohibitions and the breath testing equipment gives us an edge.
If you have an IRP, ADP or criminal impaired driving DUI charge, simply give us a call and we can discuss the steps we can take to solve this problem for you.
We only need three things to get to work on your case. Call us now.