We received some emails and calls since our first blog post on the IRP scheme version 2 court challenge asking how these court cases may affect Warn Immediate Roadside Prohibition cases. If you’re up to date with the main court challenges to the IRP scheme, you may already know that the Sivia decision held that IRPs for Fail under the first version of the law are unconstitutional. The Government went back and re-wrote the law, claiming that the new version (IRP 2.0) fixes the problems with the old one.
In mid July we were part of a team of lawyers who conducted a hearing in BC Supreme Court in Victoria on the second version of the IRP scheme. Our argument, in a nutshell, is that the new law didn’t really change anything. We say that it’s still an impermissible violation of our Charter rights. But what about the “Warn” Immediate Roadside Prohibition Law? What’s the legal status of these prohibitions and where do they fit in the court challenges?
Warn IRPs
Warn Immediate Roadside Prohibitions are issued on the basis of a roadside breathalyzer test, just like 90-day IRPs for Fail, but the duration of the prohibition is shorter. Depending on your driving record, if you blow “Warn” you are issued a 3, 7 or 30 day prohibition. Like 90-day IRPs, there is an accompanying vehicle impoundment. And of course there are fines, which the Government calls a “Monetary Penalty,” in an apparent homage to Orwell.
The thing that made many British Columbians indignant about Warn IRPs is that it was presented by the Government as a reduction in the permissible blood-alcohol content for drivers. We were told that the level was dropping from .08 to .05.
Of course, this was Government spin – a ruse and a red herring. We already had a .05 threshold. The difference was simply the degree of consequences associated with it. The sad part of the story is that the Government spin was sufficient to distract people from what they were really doing, which was to use roadside screeners for over .08 investigations and bring the adjudication of these cases to their in-house tribunal.
Government shell game
The Court wasn’t fooled by the Government shell game, and the Fail IRP law was found unconstitutional. Nevertheless, the shell game is effective. It’s been around for over 2000 years because it works. And the BC Government keeps using it.
For example, the BC Government always speaks of the effectiveness of the IRP scheme. They don’t want you to notice the fact that they are unable to say whether it’s the scheme or the publicity around the scheme. Important to note is that there is good research showing that these types of schemes are only effective in the short term. Of course, this supports the contention that it’s the publicity, if anything.
Bait and switch
Like the shell game, the bait and switch is another form of deception commonly used by politicians and government types. They tell you one thing, but deliver something else entirely. The IRP scheme was presented as being mainly an issue of over .05 Warn Immediate Roadside Prohibition cases, when in fact there are twice as many Fail IRP cases as Warn cases.
Moreover, the deterrent effect, i.e. the thing that dissuades people from drinking and driving in the first place, is the fear of the greatly-publicized .05 threshold for punishment. It’s got little (we think nothing) to do with the threat of a over-.08 Fail IRP.
The .05 threshold might scare some people from drinking and driving. To lump it together for the purpose of advocating for 90-day IRPs is another form of the bait and switch.
They told people to buy into their IRP scheme because of the Warn threshold. What they were really selling was decriminalization of the over .08 threshold without the protections of a trial, the Charter of Rights and the traditional standard of proof in law. The bait and switch is what we call it.
The Warn immediate roadside prohibition law in court
The thing about Warn IRPs is that on the face of it they’re really not that offensive. The punishment is relatively insignificant. It escalates on the basis of a pattern of behaviour. It may actually have the effect of teaching and rehabilitating people.
You see, 24-hour prohibitions for Warn, which we have had in BC for a long time, generated what’s called a perverse effect. Instead of dissuading people from drinking and driving, they encouraged it. Often risk-taking drivers would conclude that one 24-hour for every 10 times driving after drinking too much was a worthwhile risk to take. They would conclude that it was cheaper to take the risk and rarely would they think through the other potential or likely consequences (like an accident where they hurt someone).
So escalating consequences make sense. And a 24-hour prohibition was simply not enough to discourage many people from doing it again. So in this sense, Warn IRPs are rational public policy. It’s entirely likely that receiving one Warn IRP will discourage most people from taking that risk again, which is what we call rehabilitation. The punishment is not so extreme as to be disproportionate with the truncated review. And so the Court in Sivia found that the Warn Immediate Roadside Prohibition law was not unconstitutional.
Our complaint about Warn IRPs
Roadside breathalyzers were never intended or designed to be the basis of punishment. The method of testing does not provide reliable results. The devices should not be used for a purpose for which they were never intended, and it is abhorrent that people are punished on the basis of this type of evidence. But when it comes to Warn IRPs, there is genuine merit to the argument that these prohibitions are rehabilitative. In fact, a 3-day Warn is quite justifiable for the protection of the public. So what’s our complaint about Warn IRPs?
In a word: stigma.
Inclusive in the idea of rehabilitation is the concept of forgiveness. In fact, part and parcel of the whole idea of rehabilitation is that the individual is allowed to eventually count on others to “forget” their transgression. Forgive and forget is the idea. But what if it’s never forgotten and indeed, it’s held against you your entire life?
A Warn Immediate Roadside Prohibition remains on your driving record for forever. The stigma of a DUI is there for many to see. It holds people back from all sorts of career opportunities. For many people the stigma of the notation on their driving record keeps them from even applying for certain jobs.
As far as we’re concerned, the stigma of having a Warn Immediate Roadside Prohibition on your driving record is what makes these IRPs offensive.
The law is therefore not fair…
There is no Charter Right that says that a law must be fair. We think that many, if not most people would think that it’s unfair to burden someone for their lifetime just for blowing Warn. Most people might say that it’s not fair. That doesn’t mean that there is a remedy in court. Or maybe there is…
Regardless, the stigma of the notation on a driving record wasn’t presented as an issue in the Sivia case, and the Court ruled that minor punishment, in the form of a 3, 7 or 30-day IRP, isn’t a Charter violation. A strong argument can be made that Warn IRPs are designed to discourage people from drinking and driving and that they are mostly designed to rehabilitate people.
Things can change (and we hope they do with respect to the notations on driving records) but as it stands, despite its flaws the Warn Immediate Roadside Prohibition law isn’t going to go away in the near future.
We often succeed in Warn IRP cases
When it comes to 90-day IRPs, in our law office we succeed in more reviews than any other law office on a monthly and yearly basis. If you want an experienced immediate roadside prohibition lawyer, you’ve found us.
The good thing about Warn IRPs is that the review considerations are almost identical to those for 90-day Fail IRPs. And we succeed in many Immediate Roadside Prohibition reviews every month.
If you have an IRP for Warn, Fail or refusal and you’re looking for the right IRP lawyer, give us a call. We have offices in Vancouver, Richmond and Surrey. We defend IRP cases for people around BC.