An Immediate Roadside Prohibition (IRP) is a driving prohibition that is served to you at the roadside by a police officer. An IRP is served as a result of having allegedly registered a WARN or FAIL on an Approved Screening Device (ASD), or as a result of having allegedly failed or refused to comply with an ASD demand. It is a provincial administrative driving prohibition issued under the BC Motor Vehicle Act and is not a criminal DUI or impaired driving charge under the Criminal Code of Canada.
The IRP legislation is unlike any other driving prohibition legislation in Canada for many reasons, but the two most prominent ones are:
1. An officer can serve you the driving prohibition based only on the results of the ASD; and
2. You do not get a chance to dispute the prohibition prior to the imposition of the penalties. The prohibition takes immediate effect, and you have to seek a revocation of the prohibition from the RoadSafety tribunal after your licence has been seized.
How the IRP legislation operates
Since it came into force in September 2010, the Immediate Roadside Prohibition legislation has been analyzed by the courts in BC and by the Supreme Court of Canada. There are many differences in the Criminal Code provisions regarding impaired driving and the IRP provisions under the BC Motor Vehicle Act. The differences include the course of the police investigations, the gathered evidence and the dispute processes.
Nevertheless, the BC Court of Appeal has determined that all impaired driving investigations begin as criminal impaired investigations.
If a police officer suspects that your ability to drive is affected by alcohol, then the officer issues you an ASD demand under the Criminal Code. After the demand, the officer then conducts an ASD test at the roadside.
If you register a WARN result, then the officer then follows the IRP law.
If you register a FAIL result, the officer can then choose to follow impaired driving laws from the Criminal Code or discontinue the criminal investigation and instead take action under the IRP law.
Your ASD test
Under the Immediate Roadside Prohibition legislation, if you register a WARN or a FAIL result, or you fail or refuse to comply with the ASD demand, then the officer must seize your driver’s licence and serve you a Notice of Driving Prohibition that takes immediate effect.
You are also subject to fines and penalties, and your vehicle is impounded. You may also be required to enroll in remedial programs such as the Responsible Drivers’ Program (RDP) and/or the Ignition Interlock Program (IIP).
What do the ASD test results mean?
It is important to note that an ASD does not display your blood alcohol calculation (BAC).
Nevertheless, if you register a WARN result, then your BAC is alleged to be in excess of 0.05%
If you register a FAIL result, then your BAC is alleged to be in excess of 0.08%.
If you fail or refuse to comply with an ASD demand, then you are alleged to have intentionally not complied with the officer’s demand and as a result you have not provided an ASD test result. The gravity of this alleged offence is comparable to the gravity of having allegedly registered a FAIL result.
Specific penalties for a WARN or a FAIL result
If you register a WARN result, and it is the first time it has happened, then you are immediately prohibited from driving for 3 days, and you must pay a $200 monetary penalty. The officer also has the discretion to impound your vehicle for 3 days.
If you register a WARN result, and it is the second time it has happened in 5 years, then you are immediately prohibited for 7 days, and you must pay a $300 monetary penalty. The officer also has the discretion to impound your vehicle for 7 days.
If you register a WARN result, and it is the third time it has happened in 5 years, then you are immediately prohibited for 30 days, and you must pay a $400 monetary penalty. The officer also has the discretion to impound your vehicle for 30 days. RoadSafety also has the discretion to refer you to remedial programs such as the Responsible Drivers’ Program (RDP) and/or the Ignition Interlock Program (IIP).
If you register a FAIL result, or if you fail or refuse to comply with an ASD demand, then you are prohibited from driving for 90 days, and you must pay a $500 monetary penalty. Your vehicle is also immediately impounded for 30 days. Further, even if you had a clean driving record prior to this offence, RoadSafetyBC now determines that as a result of having received only one 90 day IRP, it is mandatory for you to enroll in the RDP. RoadSafetyBC will further determine whether or not you are a candidate for the IIP.
In all cases, at the end of your driving prohibition period, ICBC will also charge you $250 to reinstate your licence.
Right to a second ASD analysis
According to the Immediate Roadside Prohibition provisions of the Motor Vehicle Act, if you register a WARN or a FAIL result, then the officer must inform you of your Right to a Second Analysis.
If you ask for a second test, it must be done on a different ASD. Finally, you will be penalized based on the lowest of the two test results.
ASD test results as evidence in court
Absent your right to counsel Charter protections at the roadside, provisions of the Criminal Code describe something called “use immunity” which forbids (among other things) the admissibility of an alleged FAIL result on an ASD to be used as evidence in a criminal prosecution of impaired driving. The alleged FAIL result is admissible only for the purposes of substantiating the officer’s grounds to issue you a further breath demand.
By contrast, under the Immediate Roadside Prohibition legislation, the driving prohibitions, fines, penalties, and consequences are based solely on the ASD test results.
Unsurprisingly, the constitutionality of the IRP legislation has been the subject of a number of legal challenges.
Constitutionality of the IRP legislation
The first version of the Immediate Roadside Prohibition law was brought into effect in September 2010. The law was later declared unconstitutional by the BC Supreme Court and struck down on June 30, 2012. The BC government unsuccessfully appealed that decision to the BC Court of Appeal and then again to the Supreme Court of Canada – and consistently lost.
There were a number of constitutional questions raised before the Courts. Issues raised addressed the division of powers between federal and provincial jurisdiction, and several alleged Charter violations including: s. 8 (The right to be secure against unreasonable search and seizure), s. 10(b) (the right to counsel), and 11(d) the right to be presumed innocent.
The Petitioners successfully argued that the first version of the IRP law violated their s. 8 Charter rights and was not savable by s. 1. At the conclusion of the s. 8 analysis, Mr. Justice Sigurdson identified several fatal defects in the legislation. Mr. Justice Sigurdson held that among the many reasons for the finding of unconstitutionality was the defective and meaningless review process.
One of the main concerns of the Supreme Court of Canada regarding the s. 8 Charter breach was unreliable ASD test results. An ASD is not able to separate the presence of mouth alcohol from blood alcohol when conducting a test. The Court also noted that the Right to a Second Analysis is a crucial safeguard under the IRP legislation. The meaningfulness of the Right to a Second Analysis is also affected by these reliability concerns.
Following the declaration of unconstitutionality, the question of Charter remedies for those who suffered losses under the now defunct law was also challenged in BC courts. The BC Court of Appeal denied the Petitioners’ claims for retroactive remedies, and leave to appeal of this decision to the Supreme Court of Canada has been filed.
The second version of the IRP legislation was also subject to a constitutional challenge, but was unsuccessful.
The BC government, however, has made some very recent amendments to the legislation that are currently the subject of a third constitutional challenge. There are a number of constitutional concerns with the amendments; however, central to the challenge are the impugned provisions of the IRP legislation that reverse of the burden of proof from the officer to the driver.
The dispute process of the IRP scheme
To dispute the Immediate Roadside Prohibition, you must complete an application form and pay the required fee for either a written or oral hearing. The hearing will be conducted before a RoadSafety adjudicator.
If you registered an alleged WARN or FAIL result, the grounds for review upon which you can have the IRP reviewed include the following:
- You were not the driver;
- You were not advised of your right to a second test
- You requested a second breath test, but the officer did
not perform a second test;
- Your second test was not performed on a different ASD;
- The result of the ASD test was not reliable; or
- You registered a Warn or Fail result, but your BAC was less than 0.05% or 0.08 % respectively
If you allegedly Failed or Refused to comply with an ASD demand, the grounds for review upon which you can have the IRP reviewed include the following:
- You were not issued a valid ASD demand;
- You did not refuse or fail to comply with a demand; or
- You had a reasonable excuse for refusing or failing to comply with a demand.
7 day time limit for disputes
Under the Immediate Roadside Prohibition legislation, you have only 7 days to dispute the Notice of Driving Prohibition. If you miss the 7 day deadline, then RoadSafety’s position is that there is nothing in the IRP legislation that permits them to grant you a discretionary extension. RoadSafety’s refusal to grant extensions regardless of circumstance was recently challenged in the BC Supreme Court. Whereas the Court agreed that a 7 day deadline is unfair to some, it was held that it was the task of the Legislature rather than the Court to fix the unfairness of the policy.
To date, the Legislature has not amended the legislation in this regard, and in fact, the most recent amendments to the burden of proof further reduce a driver’s ability to challenge the results of the ASD. The issue of the strict 7 day deadline is currently set to be heard by the BC Court of Appeal.