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Immediate Roadside Prohibitions (I.R.P.s)

The Charge

While drivers in British Columbia do continue to be investigated and prosecuted for impaired driving or “driving over .08” under the Criminal Code, these days the majority of BC drivers are processed under the Immediate Roadside Prohibition (I.R.P.) provisions of the Motor Vehicle Act.  In most cases, absent aggravating factors such as an accident, the presence of a child in the vehicle, symptoms of extreme intoxication or the allegation of other criminal acts, rather than proceeding with criminal charges, police will issue an immediate roadside driving prohibition for 90 days to those drivers who fail or refuse a roadside breathalyzer test.

While not a “criminal charge,” the effects of a 90-day immediate roadside prohibition can be devastating. Not being able to drive for 3 months can cause serious problems, especially for those who rely on their vehicle for employment. In addition to the driving prohibition, police will impound the vehicle for 30 days. The prohibited driver must pay a $500 fine plus the towing and 30-day storage costs. Once the 90-day prohibition is up, the driver must enroll in the Responsible Drivers Program (at a cost of approximately $1,000) and pay a $250 licence re-instatement fee. Many drivers, upon assessment, must pay for an install an ignition interlock device on their vehicle at a cost of approximately $1,500 per year. Additionally, ICBC will assess the Driver Risk Premium of at least $370 per year for at least 3 years.

The Investigation

The threshold for a police officer to demand a roadside breath sample is very low. The officer need not develop grounds to believe a driver is intoxicated; all the officer must do is suspect that the driver has some alcohol in their body. This suspicion can arise from as little as an admission of recent drinking, the observation of alcoholic beverage containers in the vehicle, or the smell of alcohol coming from the driver. The Motor Vehicle Act sets out that a driver must comply with a “lawful” breath demand, as set out by s. 254 of the Criminal Code. Where police obtain a “fail” result, they must inform the driver of their right to take a second test, using a second roadside breath testing device. The driver is entitled to the benefit of the lowest reading of the two tests. In the event that a driver refuses or fails a roadside screening test, police will tow the driver’s vehicle forthwith and will serve the driver with Notice of the Immediate Roadside Prohibition.

Recent Successes

R. v. S.B. – Vancouver Provincial Court

Charge: Carrying a Concealed Weapon.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel regarding the circumstances of the incident and our client's background, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Johnston persuaded Crown counsel that there was insufficient public interest, leading Crown to enter a stay of proceedings. No criminal record.

R. v. M.A. Insurance Fraud Investigation

Charge: Insurance Fraud Under $5000.
Issue: Given our client's rehabilitation and repayment of the disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the insurance company to settle the matter on a civil basis. No criminal charges were forwarded. No criminal record.

R. v. D.S. – Whitehorse Yukon Territorial Court

Charge: Section 810 Recognizance (Peace Bond) Application.
Issue: Whether the Informant could prove her allegations on a balance of probabilities.
Result: After Mr. Gauthier' communications with the Informant, she declined to advance the case and, on the day of the trial, the court withdrew the Application. No record.

R. v. E.N. – North Vancouver Provincial Court

Charge: Fraud Under $5000.
Issue: Given the information Mr. Gauthier provided to Crown counsel regarding our client's personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown that there wa sno substantial likelihood of a conviction resulting ultimately in Crown declining to approve a charge. No criminal record.

R. v. E.N. – North Vancouver Provincial Court

Charge: Mischief Under $5000.
Issue: Given the information Mr. Gauthier provided to Crown counsel regarding our client’s personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown that there was no substantial likelihood of a conviction resulting ultimately in Crown declining to approve a charge. No criminal record.

R. v. K.D. – Vancouver Provincial Court

Charges: Failing to Remain at the Scene of an Accident.
Issue: Whether our client's Charter rights were breached due to unreasonable delay.
Result: Mr. Mines was able to provide information to Crown counsel that ultimately caused Crown  to proceed against our client as the owner and not the driver of the vehicle. He plead to the lesser charge of Failing to Remain under the Motor Vehicle Act and received a fine, but no driving prohibition. No criminal record.

R. v. H.C. – Vancouver Provincial Court

Charges: Sexual Assault; Sexual Interference.
Issue: Whether the complainant held herself out to be at least 16 years of age and whether our client took reasonable steps to ascertain her age.
Result: Mr. Mines was able to provide information to Crown counsel on our client's behalf that established that our client did take reasonable steps to ascertain the complainant's age. In the result, Crown declined to approve any criminal charges. No criminal record.

R. v. A.L. – Vancouver Provincial Court

Charges: Tax Evasion (Excise Tax Act); Fraud Over $5000 x2.
Issue: Given our client's cooperation with the investigation, his civil settlement and his genuine remorse, whether a jail sentence was appropriate for this almost one million dollar tax evasion case.
Result: Mr. Mines was able to provide medical and financial information to Crown counsel that ultimately led Crown to proceed on the fraud charges rather than seeking an almost one million dollar mandatory fine under the Excise Tax Act. The Court accepted the joint submission for a 2 year less a day conditional sentence and probation. No jail.

R. v. A.R. – Vancouver Provincial Court

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. v. T.C. – Fraud Over $5000 Investigation

Charge: Fraud Over $5000.
Issue: Given the civil settlement of this $245,000 misappropriation from employer case, whether there was any interest in pursuing  a criminal investigation and prosecution.
Result: Mr. Johnson was able to negotiate a civil settlement and obtained a Final Release from the complainant. No criminal investigation occurred. No risk of jail or criminal prosecution.

R. v. Q.D.T. – Vancouver Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to allow our client into the Alternative Measures program. Upon completion of Alternative Measures, Crown enteresd a stay of proceedings. No criminal record.

R. v. A.M. – Possession of Stolen Property Investigation – Squamish RCMP

Charge: Possession of Stolen Property (motor vehicles).
Issue: Whether there was sufficient evidence that our client was aware that the vehicles that he possessed had been obtained by the commission of crimes.
Result: Mr. Gauthier was able to steer our client through the police investigation. Ultimately, based on insufficient evidence, police declined to forward charges against our client. No prosecution. No criminal record.
View All

The Defence

The defence of an immediate roadside prohibition starts with filing an Application for Review. This application must be made at an ICBC RoadSafetyBC driver’s services centre within 7 days of being served with the I.R.P. When filing for a review, there is an application fee of $100 for a written review or $200 for an oral review. The burden of proof in a review hearing is on the applicant. When we are retained to represent drivers for IRP reviews, we will focus on the specific grounds of review that we have identified as being the most relevant to the case. The only grounds that the adjudicator will consider include:

  • That you were not the driver, or were not in care or control of the vehicle;
  • That you were not advised of your right to a second breathalyzer test;
  • That you requested a second test but the officer did not permit it;
  • That the second test was not performed on a second breathalyzer;
  • That the results of the breath test was not reliable – this is generally argued on the basis of breathalyzer calibration and testing records;
  • That you did not refuse or fail to comply with a lawful breath demand; or
  • That you had a reasonable excuse for refusing or failing to comply with a demand.

As stated, a driver has only seven days to file an application for review. We can help you prepare for your application for a review of your I.R.P. Once the application has been submitted, RoadSafetyBC will provide a copy of the officer’s Police Report to the Superintendent. This report is the “road map” to your case. We will analyze the issues outlined in the report along with your explanations of what happened. In this way, we will be able to provide you with our opinion as to your chances of success on the review. Our goal is to help keep you driving!

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.

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