By: Bradley McFadden
Q: Is an Immediate Roadside Prohibition a Criminal Offence? A: Not Necessarily
In British Columbia, drinking and driving offences are most commonly prosecuted under the Motor Vehicle Act, which is provincial legislation. Typically, driver’s caught drinking and driving may receive a 90-day Immediate Roadside Prohibition (IRP) issued by a police officer on the basis of a roadside breath test. Unlike drinking and driving offences under the Criminal Code of Canada, an IRP is not a criminal charge and drivers will not receive a criminal record. However, the punishments are still severe, and an IRP will remain on the driver’s permanent driving record.
The Immediate Roadside Prohibition Scheme
On September 20, 2010, the provincial government introduced Bill 14 which amended the Motor Vehicle Act by introducing sections 215.41 to 215.51. These sections are now commonly referred to as the Immediate Roadside Prohibition (IRP) scheme.
Previously, a police officer was required to detain drivers and take them to the police station to administer blood alcohol tests. If a driver was found to be over the legal limit, their driving prohibition would start 21 days from the date of the offence.
Now, the IRP scheme allows police officers to use an approved blood alcohol content screening device to determine a driver’s blood alcohol concentration and immediately issue a driving prohibition, under the Motor Vehicle Act, for drivers caught over the legal limit or refusing to provide a breath sample, without reasonable excuse.
Although police officers have the option to pursue charges under the Criminal Code of Canada, more often than not, drivers will be subject to the IRP scheme, in consideration of policy concerns. According to the Crown Counsel Policy Manual (Impaired Driving Prosecutions), where a driver has been subjected to an IRP and related consequences, a prosecution for an impaired driving offence is generally not in the public interest unless aggravating circumstances apply. The aggravating factors are set out in the policy and include:
- bodily harm or death
- a prior conviction for an impaired driving offence
- an allegation that other Criminal Code offences were committed during the same event, including driving while prohibited
- evidence of significant impairment
- any other relevant aggravating factor related to impaired driving enumerated in the Criminal Code
- a prior IRP or driving prohibition under section 94.1 of the Motor Vehicle Act
- any other aggravating factor relevant to the public interest.
If the above noted aggravating factors are not present, criminal charges will not likely be pursued.
Mandatory Breath Samples
On December 18, 2018, the federal government dramatically changed impaired driving laws across the country by enacting Bill C-46 which repealed all Criminal Code of Canada driving offences and replaced them with a new scheme. Part of Bill C-46 includes amendments that expands the powers of police to require drivers to provide a roadside breath sample. Previously, a police officer needed to have reasonable suspicion that a driver was impaired by alcohol before demanding and administering a breath test. Under the new changes, a police officer does not need to form reasonable suspicion to demand a roadside breath sample from a driver.
A police officer can demand a driver provide a breath sample if:
- They have reasonable grounds to believe alcohol has affected a driver’s ability to drive, or
- They have an approved screening device in their possession
Section 215.41(3) of the Motor Vehicle Act stipulates that a police officer can demand a driver to provide a breath sample under the Criminal Code of Canada. This means the changes noted above apply to the IRP Scheme in British Columbia. Simply put, a police officer can demand that a driver provide a roadside breath sample at any time, without first forming reasonable suspicion that the driver is impaired by alcohol.
Right to a Second Breath Sample
Section 215.42 of the Motor Vehicle Act provides that whenever a driver blows a warn or a fail on an approved screening device (ASD), they have the right to a second roadside analysis. The second analysis must be performed with a different device and the police officer must take the lower of the two readings.
Consequences of an Immediate Driving Prohibition
The punishments will depend on the driver’s level of alcohol in their body. A “warn” means the concentration of alcohol in a person’s blood is at or over .05. A “fail” means the concentration of alcohol in a person’s blood is at or over .08. Even on first time offences, the punishments are severe.
A “warn” results in a driving prohibition for 3-days, in the case of a first prohibition, 7-days, in the case of a second prohibition, or 30-days, in the case of a subsequent prohibition.
A “fail” or refusal to provide a breath sample, results in a driving prohibition for 90-days, in the case of a first prohibition.
The following chart outlines the potential penalties:
|Approved Screening Device Result||Warn|
(or refuse to provide a breath sample)
|Driving Prohibition Length||3 days||7 days||30 days||90 days|
|Vehicle Impoundment Length||3 days||7 days||30 days||30 days|
|Vehicle Impound and Towing Fees||$150+||$230+||$680+||$680+|
|Licence Re-Installment Fee||$250||$250||$250||$250|
|Responsible Driver’s Course||-||-||-||$930|
It should be noted, depending on the outcome of the Responsible Driver’s Course, a driver may be also be subject to the Ignition Interlock Program. This means there is a chance that a driver will be required to install an ignition interlock device that the driver must blow into before starting the engine. The interlock detects alcohol on the motorist’s breath and if it detects any alcohol, it will prevent the car from starting. The costs associated with this device can be up to $2,000.
If a driver decides to appeal they can choose between two types of review hearing, written or oral. Written reviews cost $100 whereas oral hearings cost $200. Appeals are not decided in court but instead by an adjudicator at the Superintendent of Motor Vehicles.
Under the review process, there are only 13 possible grounds for review. In order to make an appeal a driver must meet one or more of these grounds.
- You were not the driver
- You were not advised of your right to a second test on an (ASD)
- You requested a second breath test, but the officer did not perform one
- Your second test was not performed on a different ASD
- The prohibition was not served on the basis of the lower of the two ASD results
- The result of the ASD test was not reliable
- The ASD did not register a WARN reading
- The ASD registered a WARN, but your blood alcohol content was less than 0.05% BAC
- The ASD, which formed the basis of the prohibition, did not register a FAIL reading
- The ASD registered a FAIL, but your blood alcohol content was less than 0.08% BAC
- Your seven or 30-day prohibition should be reduced because you did not have any previous IRP(s)
- You did not refuse or fail to comply with a demand for a breath test
- You had a reasonable excuse for refusing or failing to comply with a demand.
If the adjudicator upholds a driver’s IRP, the driver may still be able to have it overturned if they proceed with a judicial review. Judicial reviews are heard at BC Supreme Court. They are not opportunity to rehear the evidence and the court will only overturn an IRP decision if it finds the adjudicator made a mistake in their decision-making process.