Driving Prohibitions

90-day ADP / Administrative Driving Prohibition

drinking driving02 Driving Prohibitions / Suspensions

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 Reviewwithin 7 days of being served the Notice.

To challenge the driving prohibition you should speak 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:

Serve the person a Notice of Prohibition
AND
Take their licence.

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 $200. It is not refundable.

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 you or your Lawyer. An adjudicator from the office of the Superintendent of Motor Vehicles presides over the hearing. In most cases, 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 many successful review decisions. Generally speaking we succeed in most cases for the following reasons:

  1. The evidence fails to establish the person operated a motor vehicle.
  2. The evidence is illogical.
  3. 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?
As with IRP review hearings, you are not permitted an opportunity to test the evidence by way of cross examination of the officer. Unlawfully obtained evidence is, with few exceptions, admitted and the officer can submit an un-sworn report. If you have a lawyer represent you at your hearing, you may be in a better position to address issues in the evidence. There are three main reasons to have an lawyer with experience defending driving prohibitions represent you:

  1. An experienced lawyer typically knows the law and the defences.
  2. Some lawyers will have access to documents you would not otherwise have to defend your case.
  3. 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 in that you are entitled to fair treatment under the law. We take the steps to help you get your licence back as soon as possible.

 

Immediate Driving Prohibitions for Blowing Warn

3, 7 and 30-Day IRP Driving Prohibitions
If a police officer believes that a driver’s ability to drive is affected by alcohol or the person blows a “warn” on an Approved Screening Device, the officer will seize the driver’s licence, have the vehicle towed and serve the person with a 3, 7 or 30-day Immediate Driving Prohibition.

Effect of a 3, 7 or 30-Day Prohibition
Recently the Superintendent of Motor Vehicles has started to issue a Notice of Intent to Prohibit (see above) or a Notice of Prohibition to drivers who have received an 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 3, 7 or 30-Day IRP Prohibition
The dispute provisions for Immediate Driving Prohibitions are greatly limited by legislation.

To dispute an Immediate Driving 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 in the case of a 3 or 7-day prohibition. 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 as defined by law.

 

IRP / 90-day Immediate Driving Prohibition

PUBLIC NOTICE: On November 30, 2011 the BC Supreme Court ruled that the 90-day Immediate Driving Prohibitions (IRP) scheme is unconstitutional with respect to Fail IRPs. The Government appears to be taking the position that you are stuck with the prohibition and punishment if you received the Notice of Prohibition before November 30, 2011. Consequently, we are now appealing every 90-day IRP to Supreme Court if so instructed by our clients. Please contact us immediately if you received a 90-day IRP. As matters unfold, we will post updates on our blog.

90-day IRPs were issued at the roadside by a peace officer who alleged that a driver had provided a sample to an Approved Screening Device that then registered a “fail” reading. The prohibition began immediately and the driver’s vehicle was impounded. The duration of the prohibition is 90 days. The impound duration is 30 days. There is a monetary penalty of $500, in addition to the towing and storage charges. As well, anyone served an IRP must enroll in and complete the Responsible Driver Program ($880 plus $105.60 tax), they cannot drive until the 90-day period has expired, they have paid a $250 license reinstatement fee and had an alcohol interlock device installed in their vehicle ($1730 plus $207.60 tax).

The Court found that the legislation violates the Charter of Rights. With respect to 90-day IRPs for Fail, the Court held that this legislation will no longer be good law.

IRPs FOR REFUSAL were upheld by the Court, therefore the police are still issuing 90-day prohibitions for alleged refusal. We continue to defend these cases.

YOU CAN CHALLENGE the 90-day IRP driving prohibition, but you must file your Application for Review within 7 days of being served the Notice. The review fee paid to ICBC is $200 for an oral hearing.

To challenge the driving prohibition you should first speak with a lawyer so the lawyer can help you with the paperwork and pick a date for the hearing. The Application for Review must be filed at an ICBC Driver Services Center. Every case is different. It is advisable to contact a lawyer to review the disclosure.

If you are successful on the IRP review hearing, you are permitted to obtain a driver’s license at the earliest opportunity, your vehicle is released and the towing and storage charges are paid for by the government up until the day the successful review decision is issued.

Background to the 90-day IRP

If a police officer in BC compels a person to blow into a roadside breath tester (ASD) and the officer alleges that the device registered a “fail” the officer will:

Serve the person an IRP Notice of Prohibition
AND
Take their licence
AND
Impound their Car.

This happens at the roadside. If the officer alleges that you refused to provide a sample, the validity of the ASD demand may be considered by the adjudicator. The review uses different rules than those used by the courts in a criminal investigation.

Types of Review Hearings
There are two types of Review Hearings: Oral Reviews and Written Reviews. We have found that you have a greater chance of success on an Oral Review. Unlike a traffic ticket where the standard of proof is beyond a reasonable doubt, the adjudicator must be satisfied on a simple balance of probabilities that the the subject was a driver and blew a fail or refused. The dispute form restricts the grounds for review.

Review Fee
The fee to file the Application for Review to conduct an oral hearing is currently $200. If you are successful on the review, your license is returned and your vehicle is immediately released. As well, the impound is canceled and the Superintendent of Motor Vehicles will pay for the towing and impound storage fees. The review fee is non-refundable in any event.

The Review Hearing
The oral Review Hearing is conducted over the phone. Before the hearing a report that was completed by the police is provided to you or your counsel. An adjudicator from the office of the Superintendent of Motor Vehicles presides over the hearing. In most cases, your lawyer conducts the hearing for you. The adjudicator’s decision will be sent to your lawyer, usually close to 21 days after the prohibition started.

Oral Hearing
Evidence can be presented at the hearing or submitted in writing to the Office of the Superintendent before the hearing date. There is not a prosecutor speaking to the matter. Unlike a traffic ticket, the evidence must simply prove the allegation on a balance of probabilities.

The IRP Controversy
On November 30, 2011 the BC Supreme Court held that the 90-day IRP scheme facilitated a Charter violation of everyone who was issued such a prohibition. With respect to alleged Fail breath samples, the Court said that the law could not be justified in a free and democratic society. As a result, the police stopped issuing 90-day IRPs for Fail.

There has been significant public debate on whether IRPs are appropriate, particularly because to some the punishment is too harsh and because reliable breath tests are no longer regularly collected. The government is aware of these concerns, but the impression is that they are more concerned with scoring political points. The position is that these issues are trumped by public safety needs. There is tremendous pressure on the government cut spending while still addressing the problem of drinking and driving. Police forces in BC are overwhelmingly supportive of the scheme because it saves time and helps their budgets. Simply put, justice is expensive and inconvenient for the police. Injustice is cheap. Few defences have been recognized in the development of the law to try to ensure improper IRPs are revoked on review.


The Law on 90-day IRP Driving Prohibitions 

We maintain an extensive library of driving prohibition review decisions. Generally speaking we succeed in most Refusal cases for the following reasons:

  1. The evidence does not establish that the person refused to provide a sample to a device.
  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 and therefore there is a reasonable excuse for not blowing.

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 driver that they are prohibited from driving in BC for 90 days.
  2. It notifies the driver that they have 7 days to apply to review the prohibition.
  3. It may be evidence used at the hearing.

Do I need a Lawyer for the IRP Review Hearing? 
The typical protections afforded a person accused of an offense have been curtailed by the IRP legislation. The government’s legislation denies you a right to cross examine the officer and evidence that would not be considered in a criminal proceeding may be relied upon. The police are not asked to swear or affirm the truth of their evidence. The standard of proof means that the evidence of the police will usually be preferred. If you have a lawyer represent you at your hearing, your odds of success may be greatly improved. There are three main reasons to have a lawyer represent you on your hearing:

  1. An experienced lawyer knows the law and the defences.
  2. Some lawyers will have access to documents you would not otherwise have to defend your case.
  3. 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.

 

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