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Appealing Automatic Roadside Prohibitions in BC

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Appealing Automatic Roadside Prohibitions in BC 2017-05-28T18:06:04+00:00

If you’ve received an Automatic Roadside Prohibition in BC and wish to dispute/appeal it, you can meet with experienced BC criminal defence lawyer Gordon Dykstra on a consultation basis to review the paperwork, procedure, timelines and appeal strategy.

About ARPs in BC

In 2010, in an attempt to strengthen laws against drinking and driving, the provincial government added “Immediate Roadside Prohibitions” (referred to by the BC Supreme Court as “Automatic Roadside Prohibitions”). Prior to 2010, your licence could only be suspended for 24 hours for blowing a “fail” on a roadside test. A 90 day suspension was only applicable if your blood alcohol level was over .08 and an Administrative Driving Penalty was applied with a 21 day notice period.

Under section 215.41 of the Motor Vehicle Act, if the police suspect you are impaired by alcohol while having the care and control of a motor vehicle they can request that you provide a sample of your breath into a roadside screening device to measure your blood alcohol content. Upon a result of “warn” or “fail” they can impose an automatic suspension of 3, 7, 30 or 90 days.

Note:

The legislation regarding “failed” roadside tests and 90 day suspensions was determined unconstitutional by the BC Supreme Court on November 30, 2011. The Office of the Superintendent of Motor Vehicles made a public announcement on December 2, 2011 that that police officers would revert to the Administrative Driving Penalties discussed in another article in this series. However, the December 19, 2011 additional reasons of the Justice Sigurdson leave the door open for the OSMV to apply the IRPs as outlined in this article until June 30, 2012. It will be important to watch the OSMV to see how they will respond to the decision.

How do Immediate Roadside Penalties Work?

The ARP regime provides for a mandatory driving prohibition when a motorist’s ability to drive is affected by alcohol, as evidenced by a roadside test that registers either a “warn” (over 0.05 – 0.08) or “fail” (over 0.80). A prohibition is also issued if a driver fails or refuses to comply with a demand made under the Criminal Code to provide a breath sample for analysis.
If the device reads WARN:

For a “warn” blood alcohol content level between 0.05 and 0.08 police will:

  • take your driver’s licence
  • issue you a ‘Notice of Prohibition’ which will start immediatelyThe length of the prohibition lengthens depending on your

driving record:

If this is the first time the it has happened in a 5-year period, you

  • will lose your driver’s license immediately for 3 days (instead of 24 hours).
  • may lose your vehicle for 3 days and have to pay towing and storage fees of about $150.
  • will have to pay a $200 administrative driving penalty and a $250 driver’s license reinstatement fee.

Will have a total cost of about $600.

If this is the second time it has happened in a 5-year period, you

  • will immediately lose your license for 7 days
  • may also have to pay towing and storage fees for your vehicle
  • will have to pay a $300 administrative driving penalty and a $250 driver’s license reinstatement fee.

Will have a total cost of more than $700.  If this is the third time it has happened in a 5-year period, you will:

  • will immediately lose both your license and your vehicle for 30 days
  • may also have to pay towing and storage fees for your vehicle
  • will have to pay a $400 administrative driving penalty and a $250 driver’s license reinstatement fee.
  • will have to complete the Responsible Driver Program before you may get your licence back
  • will have to use an ignition interlock device whenever you drive, for a full year after your driving suspension is over.
  • will have to pay about $3,650 before you can legally operate a motor vehicle again in BC.

If the device reads FAIL:

For a “fail” blood alcohol content 0.08 or over, or if you refuse to provide a breath sample police will:

  • immediately lose your driver’s license for 90 days and your vehicle for 30 days
  • have to pay all related towing and storage fees (about $700).
  • have to pay a $500 administrative driving penalty and a $250 driver’s license reinstatement fee.

Drivers may appeal these penalties, but the fees to appeal will double.

What is the review process for a “warn” or “fail” result?

A person who has been issued a driving prohibition under s. 215.41 may apply for a review of the driving prohibition within seven days of being served under s. 215.48(1) of the Act. This review is limited in scope.

An oral hearing is available for the longer 30 or 90 day prohibitions if it is requested by the driver, however no cross-examinations are allowed. The adjudicator may also proceed with the hearing even if all of the documents the peace officer is required to submit under s. 215.47 have not yet been received.

Where the driver has allegedly blown a “fail” or a “warn” on the roadside screening device, the adjudicator’s jurisdiction is limited to being satisfied on two issues:

  • whether the driver was a “driver” within the meaning of s. 215.41(1), and
  • whether the ASD actually registered a “warn” or “fail” (or the driver refused to provide a breath sample)

Since roadside test provides no permanent record of what is indicated when it is used, the only available evidence is the observation of the peace officer, which may be put before the adjudicator in the form of an unsworn statement.

Keep in mind…

On December 2, 2011, the Superintendent of Motor Vehicles made an announcement that in accordance with a decision by the B.C. Supreme Court “fail” range IRPs are unconstitutional because there is no meaningful review of the results. In response to this decision, the Office maintained that police will revert to the previous sanctions available, which include an immediate 24-hour suspension and, following further testing at the police station, a possible 90-day administrative driving prohibition and possible Criminal Code charges. The office noted that IRPs will continue to be issued to drivers who blow a “warn” on a roadside test.

However, they noted that they would continue to review the decision provide further information as it becomes available.
Given the changing state of this law, if you are pulled over by a police officer and blow a warning or fail on the roadside device it is imperative that you seek legal advice. This is currently a difficult area of law with severe consequences and a lawyer will be best able to assist you with how to proceed.

PLEASE NOTE: The law and procedure regarding ARPs may change in the future. This is an evolving area of law as our Courts continue to decide these matters.

Please be advised that:

For ADPs and IRPs, Gordon is able to provide more in-depth legal advice if you provide him a copy of the police report before the consultation.
Gordon cannot guarantee results of any kind.

[1] Motor Vehicle Act, RSBC 1996, c 318, Part 4.[2] Sivia v. British Columbia (Superintendent of Motor Vehicles), (2011) BCSC 1639.[3] Available at: http://www.pssg.gov.bc.ca/osmv/shareddocs/infosheet-interim-approach-impaired-driving.pdf.[4] Sivia v. British Columbia (Superintendent of Motor Vehicles), (2011) BCSC 1783.[5] Motor Vehicle Act, RSBC 1996, c 318, Part 4, s. 215.41(2).[6] Ibid., s. 215.41(4).[7] For details see: http://www.pssg.gov.bc.ca/osmv/shareddocs/factsheet-immediate-roadside-prohibition.pdf.[8] http://www.cba.org/bc/public_media/automobiles/190.aspx[9] Motor Vehicle Act, s. 215.48(5).[10] Ibid., s. 215.49(3).[11] Ibid., s. 215.5(1).