(UPDATE: New reports are that at least 1 in 5 are successful in having their IRP lifted on review. Our success rate is well above the average, so we bring the numbers up.)
When the Immediate Roadside Prohibition scheme first came into effect on September 20, 2010, there was a lot of discussion among criminal lawyers about whether it was worthwhile to appeal an IRP. Most lawyers who defend DUI-type cases in BC have a dim view of the review process with Administrative Driving Prohibitions for reasons that are almost too numerous to explain. Bearing in mind that the review for IRPs is conducted before the same body that conducts reviews for ADPs, there was no consensus on what to explain to clients. Lawyers were split on whether you should appeal an IRP.
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.