One day we’ll write the complete history of the IRP scheme, or the obituary if the court strikes down the law. In the meantime, we’ve accumulated the ultimate IRP appeal library — a massive collection of documents that we use every day to appeal 90-day IRPs for our clients.

Long before the first version of the IRP law came into effect on September 20, 2010, we viewed the law as badly flawed, unfair and an insult to the presumption of innocence. When it comes to IRPs, you have no Charter Rights because the OSMV tribunal refuses to provide any remedy for Charter breaches. We were so angry that we started collecting documents and material to defend our clients and challenge the law.

We were already very experienced defending Administrative Driving Prohibitions (ADPs) and other DUIs and we had all of the police breath testing equipment in our office. So we had already collected many documents, reports and manuals to help our clients appeal their IRP. However, when the IRP legislation was first introduced in the spring of 2010 we cranked up the volume and started digging for more and more material to use for our clients and to add to our library. And now what do we have?

We have a massive IRP appeal library. Maintained on our servers, in binders in our offices, in filing cabinets and file boxes we’ve accumulated tens of thousands of pages of documents, case decisions, policy manuals, internal OSMV memos, internal police correspondence, emails, calibration records, receipts, letters that were meant to be secret, judicial decisions, appeal precedents, police discipline records, reports, ultra-secret reports and records of some of the most bizarre ASD malfunctions that you could possibly imagine.

Our IRP library is huge. And it’s worth a lot of money if you think about the time and legal work that it’s taken to accumulate it. Simply put, there’s nothing like it.

For our clients it’s priceless. In many cases the only reason the IRP was lifted at the appeal before the OSMV tribunal is because of material that we’ve pulled out of our IRP appeal library.

It is, however, a private collection. If you have suggestions on any material that we could add to our library, send us an email. If you’ve got an IRP, just call us. There’s nothing that we like better than using our library to succeed in having your IRP overturned.

Immediate Roadside Prohibitions – IRP

These are the most common DUIs in BC. The entire process happens at the roadside. A police officer uses an Approved Screening Device (ASD) to test the suspected DUI driver. If the reading is a Warn, there is a minimum 3-day Immediate Roadside Prohibition and vehicle impound. If the roadside breathalyzer blow shows a Fail reading or the suspect refuses to blow into the ASD, the Immediate Roadside Prohibition is 90-days and the vehicle impound is 30.

The driver needs to pay for a bunch of things including a fine (called a monetary penalty) a license reinstatement fee, towing and 30-days storage for the vehicle. In addition the driver (poor soul) is facing a likelihood of having to complete a course called the Responsible Driver Program at a cost over $900 and may need to have an interlock installed in their vehicle before they can get back on the road.

If you get an IRP, call us. Many people contact us after they lose their case because they tried to appeal their IRP on their own or because they didn’t know about us. You shouldn’t wait to call us if you just received an IRP. Remember that you only have 7 days to file to dispute your IRP.

We defend Immediate Roadside Prohibition DUIs for people from every corner of BC. We succeed in more cases than anyone else (stats are available if you want to review all of the tribunal decisions).

Criminal Code DUIs

The most common Criminal DUIs in BC are impaired driving / impaired operation of a motor vehicle and driving with more than eighty milligrams of alcohol in one hundred millilitres of blood (“over .08″). These are criminal charges and unless you have been given a Promise to Appear or other document that forces you to go to court, chances are that you’re not facing a Criminal DUI.

The criminal charges are now rarely used in BC because the police almost always prefer to issue IRPs. Although the offence may be the same, i.e. having more than .08% alcohol in your blood, in BC a criminal charge carries much harsher punishment.

In addition to a 90-day driving prohibition that begins usually 21-days after the incident, the suspect must attend court, face the criminal charges and if convicted, it comes with an automatic criminal record, $1000 fine, one-year license prohibition as well as the RDP and an interlock in their car when the year is up.

If you get criminal DUI, call us. The 90-day ADP driving prohibition that comes with a Criminal Code DUI must be disputed within 7 days.

We defend Criminal Code driving charges in every city and town in BC where there is a courthouse. We do good work.

It can be very discouraging appealing Administrative Driving Prohibitions. Older lawyers who have been around a while will often refuse to appeal them because it’s demoralizing to lose a DUI hearing despite a litany of Charter breaches. The task of defending ADPs is then often given to the newest and least experienced in the law firm. After being quickly burned despite advancing otherwise smart arguments, the young lawyers start telling clients that there is no point in appealing an ADP.

The problem with this approach is that it discourages lawyers from becoming really skilled in ADP appeals. The old lawyers, for good reason, accept the view of the new recently-burnt lawyers and the message is passed on until it becomes dogma.

We’re pretty tenacious, and so are many of our clients. Long ago we decided that we would become as skilled and knowledgeable as possible in appealing ADPs partly because our clients wanted to appeal their driving prohibitions even if the odds were stacked against them. After a few years we became really good. But this is the thing: the rules, procedures and laws concerning ADPs are almost completely different from what you find defending criminal impaired driving/over .08 type DUIs.

It’s almost like stepping into a different universe. The rules that apply in the normal universe, i.e. the Canadian criminal justice system, almost never apply at an OSMV hearing. The thing we found is that, once you become really knowledgeable about the rules and practices in both universes, you can go back and forth between the two universes and do very well in both.

For example, if your Charter Rights are violated, you won’t get a Charter remedy from the OSMV tribunal. If, however, the description of the external standard lot is somehow lacking, you may have something.

The rules are different and not self evident. And as a lawyer if you’re living only in the Criminal Law universe, you can expect to be disappointed when you dispute an ADP driving prohibition. But if you can discern the often unfathomable ways of the OSMV universe, you may be able to succeed with an ADP appeal hearing.

We decided that we had to be bold. We decided from the start that it was appropriate to advise our clients to appeal their IRP if there was any worthwhile argument to advance. The simple fact is that an Immediate Roadside Prohibition is an awful thing to go through and having it on your driving record can cause years of pain. We’re regularly contacted by people who didn’t dispute their IRP DUI and three years on they’re still without a license.

At the start we found it demoralizing to conduct IRP appeal hearings. Again, we advanced strong arguments and we were often met with unfathomable review decisions. But we refused to be deterred and as an office we decided to take on judicial reviews of the decisions that made no sense in any universe. And after a while we became really good at using and expanding the defences that we identified in the OSMV universe.

Trying to think as far as possible down the road, we took the view that over time we could carve out defences that would help our clients succeed on their IRP review if we did as many of these cases as possible and made ourselves as skilled as possible. We wanted to be the best IRP lawyers we could be. To make ourselves as skilled as possible, we needed to conduct as many reviews as possible. So we lowered our fees to rock bottom and accepted as many cases as we could handle.

The result was what we predicted. We’ve dealt with thousands of IRP cases. We became really good at IRP appeals and we’ve identified defences that might not have come out for decades had we not taken this approach. And as a result we succeed with great regularity in IRP appeals.

So the original question from September 2010 has now been answered. If you’re asking whether you should appeal an IRP, the answer is Yes.

We posted some updates about this last week and we noticed that many people were confused about which appeal was actually being heard. It’s understandable that people would be confused. We’ve been dealing with the IRP scheme since it was enacted and there have been many twists and turns along the way. But most people only become engaged with the issues when they receive an IRP.

So here is a quick summary of the three main IRP appeals that are now before the courts.

Compulsory “discretionary” remedial requirements, i.e. interlock and RDP:

On behalf of a handful of clients we have filed test cases to compel the Government to back down from forcing everyone through the RDP and to get an interlock if they receive one 90-day IRP. As far as we’re concerned if your driving record discloses no history of drinking and driving, the Motor Vehicle Act does not give the Superintendent of Motor Vehicles the authority to simply force you to get an interlock and go through the RDP. The law does not allow the Government or the Superintendent to make you get an interlock just because of their own ideology or view of things.

This has been an ongoing conflict we have with the Government and they would do anything to shut us up at this point, especially with an election looming. Our requests to get the information about the numbers of people who were forced to get the interlock have been thwarted by the Government at every step. Still, our efforts freed 1137 people from the Interlock and RDP so we’re going to keep up the pressure on this one until we get our day in court. Our petitions have been filed. This week we will file for interim relief to force the issue into court as soon as possible.

Constitutional validity of the current IRP scheme:

In our view, the changes to the IRP scheme which came into effect on June 15, 2012, cause the new IRP scheme to violate the Charter of Rights in ways that are different than the first version of the scheme. So we have filed petitions to challenge the constitutional validity of this second IRP scheme.

Of particular importance to us is the use of an ASD to punish someone when the subject is deprived of their right to counsel as required in section 10(b) of the Charter of Rights. It is trite that this Charter breach is acceptable when the results are not used as the basis of punishment. What has yet to be properly addressed is that the Charter breach is greatly exacerbated when hokey evidence is used to justify harsh punishment.

We also intend to argue that the Government is not allowed to simply decide to ignore the Charter of Rights or legislate it out as they have with the IRP scheme. The Charter of Rights is supposed to be the highest law in the land. If the Government can decide to simply ignore it and instruct their tribunals not to give Charter remedies, then we are no longer ruled by law.

The appeal of the first IRP scheme (what we once called the Sivia appeal) at the Court of Appeal:

The first version of the IRP scheme was found to violate the Charter of Rights by the BC Supreme Court on November 30, 2011. Our office was not directly involved with the appeal which we regret to some extent. The lawyers for both sides did a good job in explaining the issues that were important to their clients. Still, important aspects of the scheme were incorrectly explained to the court. For example, the Government indicated that only people with a history of drinking and driving were forced through the interlock and RDP. We knew this was wrong, but the Government is closely guarding the stats (see above).

Also the discussion concerning the Right to Counsel was largely a side issue. We weren’t sure, as well, if the court was made to understand the issues concerning the 30-day vehicle impound and the appeal process.

After the BC Supreme Court gave its decision, both sides appealed to the BC Court of Appeal. Two days of the hearing took place last week and another day is scheduled for this week. The issues were further narrowed.

We got the sense that the lawyers acting for the petitioners were most interested in the division-of-powers argument. This is not our favourite argument. If we were doing it we would focus more on the Charter of Rights. But the lawyers take their instructions from their clients and decide with their clients how they will advance their case.

The problem, of course, is that the fate of a few thousand British Columbians comes down to the decision in this case. And it’s awfully tough to persuade three judges that the one judge who heard all the arguments and gave a reasoned decision is, nevertheless, wrong.

Appeals waiting in the wings:

We have a number of issues concerning IRPs that we want to get before the courts. A problem that we are finding is that the Attorney General’s office consents to many of our arguments so there is never a court decision on the issues we raise. This is how the 1137 we relieved of the interlock and RDP.

After we deal with the Interlock and RDP for everyone else, our hope is to take on the 7-day window to file to appeal your IRP. This is of particular importance in Vancouver where the police used photocopied documents for several months until we figured it out and Kyla forced the OSMV to acknowledge that this was not acceptable evidence.

If you missed the 7-days to file for review of your IRP, particularly if you were in Vancouver and received your IRP between June 15, 2012 and November 1, 2012, give us a call and we may take yours on as a test case.

9.  Punishment long before any hearing.

8.  Charter Rights not protected.

7.  No indication of what the blood-alcohol level might have been.

6.  Only 30 minutes allowed for a hearing.

5.  Personal circumstances and driving history not considered.

4. No full disclosure.

3.  No chance to cross-examine the officer.

2.  ASD can’t be programmed to display “Wasted.”

1.  I’d rather go to court.

All of us in our law office recognized early on that we had a moral obligation – a moral imperative to expose the IRP scheme for what it is and to try to get these laws off the books. As lawyers and devoted citizens of BC we felt obliged to take on this challenge. We were also concerned that perhaps no one else had the knowledge and particulars skills, or gusto, to get in the trenches and take on the Government.

We’re not egotists, conceited or filled with foolish self-confidence. Still, we’re smart and we know what we’re doing. We had no desire to become a polarizing force. However, when our Government starts to resemble a totalitarian dictatorship or police state, you need to take a stand. So we decided to take a stand before things become much much worse.

If you’ve been following us, this is a recap of how we feel. We only mention our feelings about IRPs because in the last 10 days the number of people visiting our blog has doubled. We think that this is because the public mood has shifted on IRPs. So for the new readers, welcome to our blog. Now you have an understanding of what we’re doing. Please check out the old posts to see what got us to where we are.

A significant difference of opinions

We think that the people who conceived of and facilitated the IRP scheme should be fired and brought before a truth and reconciliation hearing for public humiliation and to apologize to the victims. This would go a long way to repairing the damage and to start the process of healing. They think that we should be muzzled, censored and that their goons should come over in the night to haul us away to be repeatedly tazered before being pushed out of an airplane at night over open seas.

So you can see the difference of opinions. From our perspective, democracy and the rule of law is at threat. From their perspective, a few Vancouver lawyers need to be eliminated before they can advance their zealous quest to turn our province into a police state.

It’s a stalemate at the moment. Our view is that the more that people know about the IRP scheme, the more they will want to stand up and oppose the Government. So we try to get the word out. We try to reveal some of the more easily explained injustices. Ironically, however, the Government has done this for us.

There are now more than 35,000 people who received 90-day IRPs. A great number of these people are also willing to take a stand and to speak out about the injustice done to them under this system. And as the numbers have increased, more and more people are learning of how you can be maltreated at the hands of the Government. Public confidence in drunk driving laws has fallen through the floor. The public mood has shifted on IRPs.

Obviously we’re going to keep going until everyone understands that this is a grossly flawed system that needs to be scrapped. We encourage everyone to get out and explain to people that the IRP scheme is a threat to our democracy and a threat to our freedom.

Alleged drunk drivers are the easy targets for the Government to vilify. The next group will be anyone who the police claim has committed a simple traffic violation. The following group will be anyone who disagrees with the Government.

If we lose the IRP battle, the others will be a lost cause. It’s best to flee before the goons show up at your door.

Interviews on the Simi Sara show

There were two recent interviews on the Simi Sara show about IRPs. Paul was interviewed from an undisclosed goon-proof location outside of BC. You can listen to the interview here at about the 18 minute mark in the recording.

More interesting, however, is Bob Mackin’s report on the RDP and Stroh which you can find here. We’re just getting started in our investigation of the RDP and Interlock programs. Thankfully, guys like Bob are on the case. We think it’s an excellent interview.

And in case you missed it, be sure to read Ian Mulgrew’s recent article on his interview with John van Dongen, the former BC Solicitor General. The article is here.

And finally, to Darcy – this blog post is for you. You know why we’ve taken a stand. It’s our obligation.

What we noticed was that the Certificates of Qualified ASD Calibrator provided in this one particular case were identical, with the exception of the serial number and service expiry date of each device. Although the Certificates purported to contain information about the calibration check of two separate devices, they were an identical photocopy of some other document. Even the signature of the officer who says he did the calibration check was photocopied.

Paul stood on his desk and held the Certificates up to the light to be sure. And his hunch was right – they were photocopies.

We immediately realized that we had discovered something big. So we set about the task of pulling every Certificate of Qualified ASD Calibrator we have received from the Vancouver Police Department since the regime came into effect on June 15, 2011. Sure enough, every Certificate was an identical photocopy of some other document. The problem, it was apparent, was pervasive in the VPD.

Now, you may be asking yourself “So what?” We had to think for a second too about what this meant.

The Certificate of Qualified ASD Calibrator is a document that is required to be filled out by the officer in charge of calibration. It is submitted as part of the evidence in an IRP hearing for the purpose of demonstrating that the device was properly calibrated at the time of the tests. It is evidence. It is submitted to a tribunal. It is intended to be relied on at a hearing. And it forms part of an officer’s report that is required to be sworn.

It is a very serious document.

The problem with the practice of photocopying Certificates is that it gives the appearance that the officer is trying to mislead the tribunal. By producing this document, the officer is suggesting that he checked each device and found that it was properly calibrated. However, the information is from only one calibration check, from one test of calibration. And the officer is reproducing it again for multiple units.

There was no information to show when the serial number was added to the document, or by whom. Same goes for the service expiry date. The statements contained in the document are therefore completely unreliable. They make it impossible to know whether the device was properly calibrated, or if it was checked at all.

We concluded that it was realistically possible that the officer was leaving the form on his desk for other officers to fill in the serial number as they wished. At the most generous we could be with the conduct, it was fundamentally lazy. The result of the practice was to mislead the tribunal.

And so we made the argument. And lost. We could prove the Certificates were unreliable, but the OSMV tribunal almost always overlooks bad police behavior.

We then appealed the decision to Supreme Court. The Government lawyers conceded and sent the matter back for a re-hearing. This time we won. Unfortunately by this time it had been over a month since we discovered the issue.

Of course we noticed the problem was ongoing. It appeared in every file we had in Vancouver. Because of our relentless searches for records and our continuous Freedom of Information requests, we were able to obtain copies of all the Certificates in Vancouver. For clients who only blew once or those who blew into devices with Certificates purportedly produced on different dates, we were able to locate the evidence in our files to show that the photocopying issue was present. Those prohibitions were revoked.

In a period of about a month, every IRP file we had in Vancouver resulted in the prohibition being revoked. A recent FOI to the Government for all successful IRP decisions in November 2011 showed that nearly 35% of the IRPs revoked in November were revoked as a result of the photocopy issue.

There are probably many innocent people whose IRPs might have been revoked had they had access to other copies of Certificates to demonstrate that the photocopying issue applied to them. This is the kind of information that would only have been available to people who had access to the records we have. This is the kind of information a self-represented person doesn’t have access to.

In our view, the Government should be revisiting the IRPs issued to people in Vancouver and determining whether they were impacted by this issue. We have the documents to discern this information.

We have no confidence that the Government will take it on themselves to revisit all of the Vancouver IRPs for this period. But we’re willing to do it.

When defence lawyer Paul Doroshenko was working on a case involving suspected drunk drivers he represented, he found that calibration forms police fill out to prove breath tests are working had been photocopied, including the officer’s signature.

“We noticed that the police in Vancouver were not actually going through and completing one of these documents for each time that they calibrated and checked the device,” Doroshenko said.

“We have no idea whether or not this police officer was actually going through the steps to calibrate them.”

Potentially hundreds of drivers who were caught could fight their penalties and win as the photocopying took place between June and December of 2012, Doroshenko said.

Read more: http://bc.ctvnews.ca/drunk-driving-cases-tossed-due-to-bad-paperwork-1.1125545#ixzz2ImBBhnEh

The modified (and still grossly unfair) law came into effect on June 15, 2012. Since that time we have demanded that the Government provide us with the information concerning successful review decisions for each month. The information has been very helpful in refining our methods and in ensuring that we cover all of the important issues when defending an IRP. But also interesting for us was that we have more successful IRP decisions than any other law office in all of BC. It turns out that we are the winners.

We never really think of it as winning. Our goal is to ensure that we have the IRP revoked if possible by using all of the accepted defences and the defences that we have developed that nobody else has even thought of yet. Some people think of it as helping you win. For us we’re just doing our job the way you would want us to do it.

And apparently we do it very well. In most months we win better than double the next most successful law office. In one rare month we were tied. In every other month we were well ahead of any other law office as far as the number of successful IRP review decisions.

The two lawyers in our office who conduct most of the IRP review hearings, Sarah Leamon and Kyla Lee, are number 1 and number 2 in the province. Although they have switched positions depending on the month, in the last few months Kyla has had a few more winning decisions meaning at this point she is the most successful of any lawyer in the province with IRPs under the new scheme.

From the time the IRP scheme came into effect we knew that we needed to refine our skills and arguments and ensure that we knew how to defend these cases as best as possible for the benefit of our clients. Sarah and Kyla are the top IRP lawyers in BC because as an office we put countless hours into defending each case. The decision we made a few years ago has paid off month after month for the people we defend. At this time, we are the winners, so to speak, because we have succeeded in the greatest number of IRP reviews in BC.

Still, we’re not celebrating. We’re on a quest to expose the IRP scheme for what it is. In an upcoming post we’ll explain some of our recent successes and why your IRP may be lifted even if you thought it was sewn up tight.

The main reason it seems is that they could not find a toxicologist to say that roadside breath tests are reliable. They could not find a drunk driving expert who would say that the manner in which tests are taken at the roadside and the equipment used will produce reliable tests. Instead, the Government produced an affidavit of a police officer. Not an expert qualified to give the necessary opinion about the reliability of this type of testing.

The Immediate Roadside Prohibition scheme is founded on roadside tests that are not performed pursuant to proper scientific procedures which were designed to generate reliable tests. And as a result many of the tests are inaccurate.

Knowing this we are dumbfounded as to how anyone who knows anything about roadside breath tests could support such a scheme. But again, if the Government is paying you a salary to uphold their scheme, for some it may be a good enough reason to lie about it. When it comes to qualified drunk driving experts, even the Government couldn’t find a toxicologist to lie. Simply put, the experts in breath testing and blood-alcohol concentration all concede one major fact: it is well known in the scientific community that a significant percentage of roadside tests will be inaccurate.

As lawyers challenging IRPs, we are both reassured and saddened when police officers contact us to thank us for our work in challenging the IRP scheme. On the one hand we are pleased to see that they know we are right in our criticisms of the scheme. On the other hand we are dismayed that they keep their knowledge and information confidential when the appropriate course of action is to publicly denouncing the scheme.

When the modified scheme came into effect June 15, 2012, the evidence of qualified forensic alcohol experts took on a new light. Although the Government couldn’t find one to support their scheme in court, the OSMV adjudicators will occasionally accept the evidence of drunk driving experts in IRP review hearings.

It will be interesting to see how this plays out as the cases are appealed in court. We noted early on that the OSMV would simply reject the evidence of an expert as “theoretical,” when it was in fact based on reliable evidence presented at the hearing. This some sort of strange doublespeak, but it’s not uncommon language in review decisions (see Spencer).

What we have found since the IRP law came back into effect is that logical presentation of proper legal defences is simply not sufficient to succeed on review of an IRP. The case presented by the applicant must be overwhelming to succeed. This will often include the evidence of a forensic toxicologist, i.e. a qualified drunk driving expert and the supporting evidence upon which the toxicologist can base their opinion.