If you’ve received an Administrative Driving Prohibition, you can meet with Abbotsford lawyer Gordon Dykstra to discuss your appeal options.
Gordon offers one-on-one consultations (on the phone or in-person) for very reasonable rates to discuss the appeal process, documentation, paperwork and strategy for these ADP appeals in British Columbia.
About Administrative Driving Prohibitions in BC
Although the enactment of “automatic roadside prohibitions” (ARP) appeared to render ADPs superfluous, the legislative scheme remained in force after the new legislation came out in 2010. Understanding the ADP regime is of particular importance right now since the BC Supreme Court recently held that the ARPs for drivers registering in the “fail” range on a roadside test are unconstitutional.
On December 2, 2011 the Office of the Superintendent of Motor Vehicles released an interim approach for dealing with Impaired Driving maintaining that drivers registering a “fail” on a roadside test will be processed in accordance with the ADP regime.
However, the December 19, 2011 additional reasons to Sivia v. British Columbia (Superintendent of Motor Vehicles) allow the ARP regime to remain in force until new legislation is drafted by June 30, 2012. Thus it will be necessary to watch the Office of the Superintendent of Motor Vehicles to see whether police officers will be instructed to follow the ARP or ADP approach. In the meantime, it is important to understand how ADPs work.
What is an ADP?
ADPs are 90-day driving bans issued to impaired drivers under section 94.1 of BC’s Motor Vehicle Act. They are completely separate from any Criminal Code charges that may result from the same incident.
A peace officer will issue an ADP Notice when a driver operates or has
“care or control” of a motor vehicle and there is reasonable and probable grounds to believe by reason of an analysis of breath that a driver exceeded 0.08 within three hours of driving
- has a blood alcohol concentration over the criminal limit of 0.08 within three hours of driving, or
- fails or refuses to comply with a breath or blood alcohol test without a reasonable excuse.
“Reasonable and probable” grounds have generally been interpreted by courts to mean the results of a test on an approved device (breathalyzer). The Officer of the Superintendent of Motor Vehicles’ Factsheet on Administrative Driving Prohibitions confirms that the penalty will follow a failed breath sample on “an approved instrument.” This is significant because it means that the penalty is not applied on a roadside test alone (as is the case with ARPs).
Does the prohibition take effect immediately?
The prohibition does not take effect immediately. If you received a Notice of Driving Prohibition the police officer will take your driver’s licence. The notice given to you will serve as your temporary driver’s licence for the next 21 days. This 21-day period is to allow you to arrange for alternative transportation or, if you believe you have grounds, time to apply for a review of the prohibition.
What if I get caught driving after the notice period is up?
You may not drive while prohibited for any reason. If you fail to comply you may be charged with driving while prohibited and will face fines, jail and further driving prohibitions if convicted. The vehicle you were caught driving will be impounded even if you are not the owner. It will be towed on the spot and all towing and storage costs will be charged to the owner.
When Prohibition Period Ends…
After the prohibition ends, you must obtain a new driver’s licence from a driver licensing office for a fee of $250. If you are granted a new driver’s licence following a prohibition, it will be for a two-year term.
Can I dispute the Penalty?
You may request that the Superintendent of Motor Vehicles review the prohibition within seven days of receiving the notice. The review will take place before the 90-day prohibition starts. Application forms are available at all driver-licensing offices.
If you’d like assistance with the dispute, schedule a consultation with Gordon to meet with him in person or to discuss the matter on the telephone.
Reviews are conducted by an adjudicator at the Office of the Superintendent of Motor Vehicles. A copy of the police information that the adjudicator will consider will be provided before your case is considered and
you will be given an opportunity to present further information to the adjudicator before the review is held.
However, it is important to note that there are limited grounds under which you may seek a review. The hardship that may be caused by the loss of your driving privileges is not one of these. Applicable grounds for review are as follows:
- you did not operate or have care or control of the vehicle
- your blood alcohol concentration was not over the legal limit of 0.08 within three hours of driving, or
- you did not fail or refuse to comply with a demand for a breath or blood alcohol test, or you had a reasonable excuse for failing or refusing to comply.
No other matters will be considered by the adjudicator.
Upon completion of the review, a written decision revoking or confirming the prohibition will be sent to you. There are two possible decision outcomes:
Driving Prohibition Revoked
If the adjudicator revokes the driving prohibition, you may reapply for a driver’s licence. The review fees will be refunded, less any outstanding fees or debts owed to the Province or ICBC.
Driving Prohibition Confirmed
If the adjudicator confirms the driving prohibition, your 90-day driving ban will begin as scheduled 21 days after the date of the Notice of Driving Prohibition.
All review decisions are final, though they are subject to judicial review in a BC Supreme Court.
What should I do if I am pulled over and have to take a roadside test?
If you have been stopped by a peace officer and you either fail a roadside test, or the test is not working properly and you have not been drinking, you may want to ask the officer for a test on an approved device (breathalyzer) at the nearest station. These devices are more accurate and if you think the roadside test is displaying an incorrect result a breathalyzer may help. However, the immediate penalties are currently applicable by law and the officer may refuse your request. If this happens you will want to seek the advice of a lawyer as soon as possible given that this is a complicated area of law with severe consequences.
Please keep in mind that the law and procedure surrounding ADPs in British Columbia may change in the future. ADPs continue to challenged and handled by BC Courts.