Reasonable Doubt: What you need to know about DUIs in B.C.

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      Note to readers: Guest columnist Sarah E. Leamon is a criminal defence lawyer at Acumen Law Corporation, specializing in the area of impaired driving. She is also the chair of the board at PACE Society in Vancouver’s Downtown East Side. Follow @SarahLeamonLaw on Twitter.

      The province of British Columbia is home to some of Canada’s toughest impaired driving laws. Originally introduced in 2010, this law—generally referred to as immediate roadside prohibitions or IRPs—was ushered in with the goal of saving lives by getting impaired drivers off the roads using swift and immediate action.

      As noble as this mandate may sound, B.C.’s impaired laws have been subject to a great deal of controversy. Vocal opponents have spoken up against the law, airing concerns about a number of aspects, including its design, implementation, the inadequacies of the dispute process and the onerous nature of its penalties.

      The first thing that you need to know is that this law was implemented by the provincial government under the Motor Vehicle Act. On a practical level, this means that if you are issued with an IRP, you are not in danger of receiving a criminal record. Instead, you have essentially received a very nasty traffic ticket. While this may sound better at first, you may think twice when you learn about the penalties—including a 90-day driving prohibition, 30-day vehicle impoundment, $750 in fines, and referrals to the Responsible Driver’s and Ignition Interlock programs—which are onerous.

      The way that the law was enacted also means that police officers have the choice to either proceed by way of the Motor Vehicle Act or Criminal Code.

      This is extremely controversial in itself. Not only does it raise concerns about the tremendous amount of discretion awarded to individual officers, but it also presents a potential problem with respect to the constitutional division of jurisdictional powers between the provincial and federal government. While the province argues that the IRP law exists alongside the federal law, others believe that it is undermining and supplanting it.

      This is reflected in the statistics. As criminal impaired driving charges drop, the number of IRPs issued remains consistently and extraordinarily high. In 2011, they exceeded 22,000. RoadSafetyBC recently reported that over 18,000 IRPs were issued in the last year alone. When you consider that a criminal impaired driving investigation is complex, taking hours and involving multiple officers, there is little doubt as to why the quicker, simpler IRP method appears now preferred.

      This brings us to another troublesome aspect of the IRP regime—the swiftness with which one may be issued. In my experience, the average IRP investigation takes approximately 10 minutes from start to finish. Although it can take longer, I have seen some investigations begin and end in as little as 60 seconds.

      This is all made possible by the use of a small, handheld machine called an approved screening device, or ASD for short. This device was developed to aid police officers in the beginning stages of criminal impaired driving investigations.

      After all, in order to detain a suspect, and make a valid breath demand under the Criminal Code, an officer must form the proper grounds to do so. In other words, they must have a reasonable belief that the suspect was operating a motor vehicle while their ability to do so was impaired by alcohol. In some cases, officers are able to achieve this solely through their observations.

      However, if an officer only suspects that alcohol is a factor but is uncertain, they can use an ASD to elevate their suspicion to a belief. After that, the person should be properly provided with their rights, such as the right to counsel, and warned according to the Charter. Breath samples will later be obtained using a larger breath testing device, stored at the police detachment.

      Under the IRP scheme, a person has no right to counsel. They are not cautioned or warned and they are not able to provide a breath sample at the police detachment if they wish to do so. Rather, the IRP is issued on the basis of the ASD alone.

      Sole reliance on the ASD is problematic when you consider some of the flaws that are inherent to it. For instance, these devices are often prone to mechanical malfunction. They do not generate hard copy results, nor are they programmed to give numerical readings. These are only some of the many problems. An approved screening device is just that—a screening device.

      But the entire IRP regime is based on the results generated by these devices. So what happens when something goes wrong? What happens when a prohibition is issued in error?

      The IRP review process has been described by some as inadequate and unfair. While a person issued with an IRP can dispute it, they must do so within seven days of receiving it. If they miss the deadline for any reasons whatsoever, they are without recourse—no exceptions.

      Once a dispute is filed, it is not conducted in front of a judge in open court, but rather over the phone with an adjudicator at RoadSafetyBC. Police officers and witnesses are not able to attend or give evidence and be cross-examined. Instead, the investigating officer provides a report that the applicant can answer with evidence of their own. The officer does not have to prove the case beyond a reasonable doubt, but simply on a balance of probabilities—and new legislative changes may soon reverse the onus, which means that it will be up to the applicant to prove their innocence rather than the officer to prove their guilt.

      All in all, this makes for an extremely difficult dispute process. Success rates are low. When you compare this process to the dispute process for a $167 red light ticket, it seems even more absurd.

      The provincial government claims that the IRP scheme has saved hundreds of lives that would otherwise have been lost to impaired drivers. Perhaps they say this in an attempt to justify a poorly drafted law that deprives people of their fundamental rights and an adequate dispute process. Whatever the reason for it though, this claim seems just as dubious as the law itself.

      Reasonable Doubt appears on on Fridays. You can send your questions for the column to its writers at

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.



      but it's working

      Jun 19, 2015 at 2:14pm

      A 2013 study out of UVIC shows this program to be successful. Maybe one of the key aspects of this regime's efficacy is the ease and lower costs at which officers can issue a reprimand. Maybe one of the considerations an impaired driver makes before operating her vehicle illegally is the assurance of an onerous dispute process for the judicial system.

      I'm not saying the people's rights shouldn't be respected, but I consider this to be a fairly good trade off considering that it has shown to be beneficial for society.


      Jun 19, 2015 at 2:54pm

      Just another example of extremely poor legislation brought in by the Liberals that trample on our Charter rights for the sole benefit of the Government coffers. The other prime example of that being the Civil Forfeiture act. Our Minister of Injustice, Suzanne Anton will tell you these laws have already been decided by the Supreme Court of Canada to be constitutional however what she deceptively WON'T tell you is the court only agreed that the Province is allowed to write such crap in the first place. Fortunately the IRP has a date to determine if individual charter rights are being breech and ironically, the Hell's Angels are challenging the civil forfeiture nonsense as well. Let's hope the Liberals get their asses handed back to them.


      Jun 19, 2015 at 6:12pm

      The more laws like this the less need for lawyers. Might be worth giving up your rights.

      @but it's working

      Jun 19, 2015 at 8:42pm

      You're totally missing the point. There's a million things the Government can do to make our society safer. Ban smoking or eating red meat for instance. In this case the penalties of the IRB scheme (with the exception of having a criminal record) as or more onerous than being charged, convicted and sentenced for an actual DUI. These penalties administered on the advice of simple police officer. Not a judge. The problem is the Provincial Government ie/ The Liberals are writing bad, Charter-breeching laws that are already addressed by the Criminal Code which (if I need to remind anyone) is a Federal Government responsibility. Same goes for the Civil Forfeiture Act.

      If you're caught drinking and driving then the police should charge you criminally. Not some half measure under the auspices determined by some cop who doesn't want to do their job and show up in court. It's a slippery slope and one I hope the Liberals will be found to be on the wrong side of history.

      For real

      Jun 20, 2015 at 3:00am

      I wonder if just before Sarah Leamon meets a drunk driver head-on that her last thought would be, "the provincial government is making dubious claims about saving lives to justify the law."


      Jun 20, 2015 at 9:05am

      This is what the beginning of a police state feels like. Enjoy...


      Jun 20, 2015 at 10:10am

      So if you're not an impaired driver exactly what is there to fear from this legislation?


      Jun 20, 2015 at 5:25pm

      Because the law is punishing you outside of the criminal code. Hey, if you're driving over .08 and a screening device indicates that then hell yeah, get arrested and properly screened at the cop shop, charged, convicted and sentenced accordingly. But to have worst sanctions against you just because some 8th grade cop feels his screening device says you're "impaired" is nothing short of a police state. Charge me with a criminal offense or fuck off or I'll make it worth your while then assholes!

      Jim Rose

      Jun 22, 2015 at 12:01am

      The real issue is that funds and limited resources are disproportionately spent on drinking driving when more people die each year in Canada from falls. Do we have police doing random ladder checks? Of course not. Drinking Driving prevention and MADD are industries in themselves nowadays and have no bearing on what is actually happening.


      Jun 22, 2015 at 3:20pm

      Police state measures. Know your rights. You should never roll your window all the way down to a police officer. Your car is private property. 2" is all your required to allow communication. He is evidence gathering. Do not get out of your car if requested. Ask why your being stopped. Remain calm and focused. If he suspects you have been drinking ask under what means were they able to determine that. If he is getting animated with you tell them that you will not get out of your car until such time as you are formally charged with impaired driving. Your lawyer will tell you that the moment you get out of the car, you have given up certain rights and therefore the police are gathering evidence via a road side screening device, foot to heal walk, touching your nose etc. Force them to charge you first. That's when your lawyer can fight the "reason we believed he was impaired" part to see if your rights or justifiable cause is strong.
      The special interest groups like MADD etc are created from past causes that have a personal nature. Nothing wrong, but check the statistic's. More people die from old age, cancer and health related causes than from Impaired Driving. While MADD and the police are trying to help, they are also trampling your rights and those little screening devices are just a means to an end for them.