This BCLiberal Government has the hate on for lawyers. They are angry that we exposed their IRP scheme for what it is, they don’t want to pay legal aid lawyers because they think lawyers are responsible for court backlogs and they assume that everyone is guilty in any event. They hate lawyers so much that they made someone who never studied law the Attorney General. But that’s democracy for you. Any party that gets elected can go about doing all sorts of things they never discussed during the election, such as the HST and IRPs.
Of course we know of this animosity toward lawyers. So it came as no surprise to us that in their material for the new Immediate Roadside Prohibition scheme they try to discourage people from getting a lawyer. The Government wants you to lose. So they don’t want you to have a lawyer. It’s as simple as that.
What you should know is that the new law purports to allow you to run an evidence-to-the-contrary defence to your IRP. What does this mean and how do you do it? What does it take to get your IRP overturned if you blew Fail?
To get your IRP overturned
As of this date the Government hasn’t posted the new version of the Motor Vehicle Act on the internet. It wouldn’t surprise us if they did this deliberately to impede your access to justice.
The new version of the law allows you to argue that there was some other reason for the Fail (and presumably you must prove the other reason on a balance of probabilities) or that the result was not reliable.
Of course, because ASDs do not have an internal memory and you are not provided the maintenance records of the device, nor do you get to see the subsequent calibration records, you will not be able to prove the device was malfunctioning on a balance of probabilities, i.e. that the result was unreliable. And good luck proving that the Fail is a result of a contaminated sample.
Simply put, in most circumstances the only way you can impeach the Fail reading is to be able to prove that you were under .08mg%. And this you can only do if it works out mathematically.
So if you blow Fail your lawyer will need to consult with a toxicologist to determine whether you were actually under the legal limit. If so, the toxicologist can prepare a report that is presented along with your evidence.
This is what is known as evidence-to-the-contrary. It means cogent believable evidence that establishes that the subject would not have had a blood-alcohol content in excess of .08% at the relevant time. If believed, it must impeach any Fail reading on an ASD. In many cases this offers the only chance to get your IRP overturned.
Without a lawyer, the deck is heavily stacked against you. Lawyers are experts in knowing what evidence must be collected and presented at the hearing.
The Government doesn’t like lawyers such as ourselves because we understand their scheme and the defences that can show a Fail was unreliable. They created the IRP scheme for a reason, i.e. to get around the courts and to get your money. So don’t assume that they designed a scheme in which you are supposed to succeed. That was never part of their plan.