Driving Prohibitions
90-day ADP / Administrative Driving Prohibition
A 90-day ADP driving prohibition (Administrative Driving Prohibition) is normally the first thing you need to deal with if you have been charged with driving “over .08” or refusal to blow. The Notice of Prohibition serves as the recipient's license for 21 days until the 90-day ICBC ADP comes into effect.
YOU CAN CHALLENGE the 90-day driving prohibition, but you must file your Application for Review within 7 days of being served the Notice.
To challenge the driving prohibition you need to first meet with a criminal lawyer so the lawyer can help you with the paperwork and pick a date for the hearing. Then the Application for Review must be filed at an ICBC Driver Services Center.
Background to the 90-day ADP
If a police officer in BC believes that a person’s blood alcohol content exceeded 80 mg in 100 ml after having driven within the proceeding 3 hours, or the person refused a demand for their breath under the Criminal Code, the officer MUST:
Normally this happens as part of an impaired driving investigation. In addition to a 24-hour prohibition and the documents requiring a person to attend court, the police serve the Administrative Driving Prohibition ADP Notice of Driving Prohibition (Sample Notice).
Types of Review Hearings
There are two types of Review Hearings: Oral Reviews and Written Reviews. In our experience you have a greater chance of success on an Oral Review.
Review Fee
The fee to file the Application for Review to conduct an oral hearing is currently $100. If you win at the hearing, the fee is refunded to you.
The Review Hearing
The Review Hearing is conducted over the phone. Before the hearing a report that was completed by the police is provided to your Criminal Lawyer. An adjudicator from the office of the Superintendent of Motor Vehicles presides over the hearing. In most cases, you do not need to attend - your lawyer conducts the hearing for you. The adjudicator's decision will be sent to your lawyer, usually within 2-3 days.
The Law on 90-day Administration Driving Prohibitions
We maintain an extensive library of our many successful review decisions. Generally speaking we win most cases for the following reasons:
1. |
The evidence is not lawfully before the adjudicator. |
2. |
The evidence fails to establish the person operated a motor vehicle. |
3. |
The evidence is illogical. |
4. |
The evidence does not establish that the demand for a sample of breath was lawful. |
Effect of the Notice
Upon service of the Notice of Prohibition the clock begins to tick and you must act quickly to preserve your right to challenge the prohibition.
The Notice serves 3 main purposes:
1. |
It notifies the person that 21 days from the date they are given the Notice, they are prohibited from driving in BC for 90 days. |
2. |
It notifies the person that they have 7 days to apply to review the prohibition. |
3. |
It serves as a temporary drivers licence for the 21 day period. |
Do I need a Lawyer for the ADP Review Hearing?
Your odds of success are much greater if you have a lawyer represent you at your hearing. There are two main reasons to have a Criminal Lawyer represent you on your hearing:
1. |
An experienced lawyer knows the law and the defences. |
2. |
Only a lawyer has privilege. |
When a lawyer makes submissions, his statements are not evidence. For example, if the Report does not prove the person was a driver, the lawyer cannot be asked if their client was the driver.
Other Driving Prohibitions
Superintendent/ ICBC Driving Prohibition
The Superintendent of Motor Vehicles issues driving prohibitions when a person has established an unsatisfactory driving record. The process starts with a Notice of Intent to Prohibit.
When a person receives a Notice of Intent to Prohibit they have 21 days from the date on the notice to explain to the Superintendent why the Prohibition is either:
1. |
Inappropriate (should not be ordered); or |
2. |
Disproportionate (is too long under the circumstances). |
You must act quickly to challenge the proposed driving prohibition. We have successfully challenged hundreds of driving prohibitions and so we have a proven method to deal with these prohibitions. The steps include:
1. |
Addressing the driving history |
2. |
Demonstrating rehabilitation |
3. |
Demonstrating disproportionality |
4. |
Persuasive rhetorical argument |
Driving is a privilege, but it is also a right. We'll take all the right steps to get your licence back as soon as possible.
24-Hour Driving Prohibitions
If a police officer believes that a driver's ability to drive is affected by alcohol, the officer may seize the driver's licence, have the vehicle towed and serve the person with a 24-hour prohibition.
Effect of a 24-hour prohibition
Recently the Superintendent of Motor Vehicles has started to issue a Notice of Intent to Prohibit (see above) to drivers who have received a 24-hour driving prohibition. If, in the opinion of the Superintendent, the driver's driving history is unsatisfactory, the Superintendent may seek to further suspend the driver's right to drive.
Challenging a 24-hour prohibition
The dispute provisions for 24-hour driving prohibitions are severely limited and probably unconstitutional considering that a 24-hour driving prohibition can trigger a lengthy suspension by the Superintendent.
To dispute a 24-hour prohibition you must file your application for review and pay the filing fee within 7 days from the date of service. Submissions must be made in writing. The adjudicator can revoke the prohibition if they conclude that:
| the person had the right to request and requested that the officer administer a test to indicate his or her blood alcohol level, but the peace officer failed to provide the person with the opportunity to undergo the test, |
| OR |
| the person was not a driver within the meaning of the rules for 24-hour prohibitions. |
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