Immediate Roadside Prohibitions lawyer in Surrey
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An immediate roadside prohibition (“IRP”) is a driving prohibition issued by a peace officer under the Motor Vehicle Act as a result of a driver blowing over the legal limit on an approved screening device or refusing to provide a sample of their breath. Pursuant to section 215.41 of the Motor Vehicle Act a police officer can make a demand to a driver to provide a breath sample on an approved screening device. If the device registers a warn or a fail and if the police officer has reasonable grounds to believe that as a result of the breath analysis the driver’s ability is affected by alcohol then the police officer must serve a notice of driving prohibition.
Under section 215.42 of the Motor Vehicle Act, if a breath analysis of a person registers as a warn or a fail a person has a right to forthwith request and be provided with a second analysis and a peace officer must inform the person of that right before the peace officer severs a notice of driving prohibition.
There are various lengths of IRP’s that can be served from 3 days to 90 days. Pursuant to section 215.43 of the Motor Vehicle Act, if the approved screening device registers a “warn”, the person who provided the breath sample is prohibited from driving for:
- 3 days for a first prohibition;
- 7 days for a second prohibition; and
- 30 days for any subsequent prohibition.
However, if an approved screening device registers a fail or if a person refuses to provide a breath sample then a 90 day driving prohibition is served on the person. Any of these driving prohibitions take effect immediately and in the case of a 30 or 90 day prohibition results in an automatic impoundment of the vehicle. Note that police could also impound your vehicle for a 3 or 7 day prohibition as well. Along with prohibition and impoundment there are also various other consequences depending on length of prohibition and other factors which could include:
- Monetary penalty;
- Towing and/or impound fees;
- requirement to complete the responsible drivers program and associated costs; and/or
- Installation of an ignition interlock device in a vehicle used for a period of one year along with associated costs. The ignition interlock device is installed in vehicle and requires the driver to provide a breath sample in order to start the vehicle.
Grounds for Review — Can You Fight an IRP?
Can an Immediate Roadside Prohibition Be Overturned?
Many people assume that an IRP is automatic and final, but that is not the case. The review process exists precisely because IRPs can be successfully challenged.
The Superintendent of Motor Vehicles must consider whether the prohibition was lawfully issued, and there are several grounds on which a review can succeed.
The peace officer did not have reasonable grounds to make a demand.
Before an officer can require you to provide a breath sample on an approved screening device (ASD), they must have reasonable grounds to believe you have alcohol in your body. If the demand was made without a lawful basis, the prohibition may not stand.
You were not informed of your right to a second sample.
Under section 215.42 of the Motor Vehicle Act, a peace officer is legally required to advise you of your right to request a second breath analysis before serving you with a Notice of Driving Prohibition. If this right was not communicated to you, this is a procedural ground that may support a successful review.
The approved screening device was not functioning properly.
ASDs must be properly calibrated, maintained, and used in accordance with the manufacturer’s specifications. Evidence that a device was malfunctioning, recently out of calibration, or improperly operated may cast doubt on the reliability of the reading.
You had a reasonable excuse for refusing to provide a breath sample.
If you were physically unable to provide a sufficient breath sample due to a medical condition, this may constitute a reasonable excuse for refusal.
The officer did not follow proper procedure.
IRPs must be issued in strict compliance with the Motor Vehicle Act. Any departure from the required process, including improper service of the Notice of Driving Prohibition, may provide grounds for a successful review.
Every case is different, and the strength of your review will depend on the specific facts and circumstances of your stop. Speaking with a lawyer before filing your review is the best way to assess your options and give yourself the strongest possible chance of success.
Applying for Review if an IRP
You can apply to review a 3, 7, 30 and 90 day driving prohibition but you must apply for a review within 7 days of the date you were served with the Notice of Driving Prohibition. You will need to submit the application for review, pay the review fee in full and book a review date. You can apply for review at any ICBC licensing center or online here.
You can seek to have a written review on a 3, 7, 30, and 90 day prohibition but can only seek an oral review for a 30 or 90 day prohibition. It is extremely important that if you wish to proceed with a review that you apply for a review within the 7 days of the date you were served with the Notice of Driving Prohibition as the Superintendent of Motor Vehicles has no authority to conduct reviews after the 7 days have passed.
A lawyer can assist in reviewing and assessing your case and in the case of written review can prepare a letter to the Office of the Superintendent by a specified date and time or in the case of oral review make oral submissions on your behalf. If you receive a driving prohibition and wish to proceed with a review, do not hesitate to contact our office to speak to one of our lawyers.
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The IRP Review Process – Step by Step
How the IRP Review Process Works in BC
If you want to challenge your Immediate Roadside Prohibition, here is what the process looks like from start to finish.
Step 1 — Act within 7 days.
The single most important thing to know is that you must apply for a review within 7 days of being served with your Notice of Driving Prohibition. This deadline is absolute. The Superintendent of Motor Vehicles has no authority to accept late applications, regardless of the reason for the delay.
Step 2 – Submit your application and pay the review fee.
You can apply for a review at any ICBC licensing centre or online at the RoadSafetyBC website. You will need to pay the review fee at the time of application. The fee varies depending on the type of review you are requesting.
Step 3 – Choose written or oral review.
For 3-day and 7-day prohibitions, only a written review is available. For 30-day and 90-day prohibitions, you may choose either a written review or an oral review. In a written review, submissions are made in writing and reviewed by an adjudicator. In an oral review, you or your lawyer appear before an adjudicator and make verbal submissions.
Step 4 – Obtain disclosure.
nce your application is filed, you are entitled to request disclosure — this includes the officer’s report, notes, and information about the approved screening device used. Reviewing this material is a critical step in identifying potential grounds for your review.
Step 5 – Prepare and submit your case.
This is where having a lawyer is most valuable. A lawyer can review the disclosure, identify legal or procedural issues, and either prepare a written submission letter or appear on your behalf at an oral hearing.
Step 6 – Receive the adjudicator’s decision.
The adjudicator will issue a written decision. If your review is successful, the prohibition will be rescinded and your driving record updated. If unsuccessful, you may have further options, including seeking judicial review in the BC Supreme Court.
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Frequently Asked Questions About IRPs
No. An IRP takes effect immediately upon being served. You are prohibited from driving from the moment you receive the Notice of Driving Prohibition, regardless of whether you have filed for a review. Driving while prohibited is a separate offence under the Motor Vehicle Act.
If you do not apply for a review within 7 days of being served with your Notice of Driving Prohibition, you lose the right to a review entirely. The Superintendent of Motor Vehicles has no jurisdiction to consider late applications. This deadline cannot be extended, which is why it is critical to act as quickly as possible.
An approved screening device can register one of three results: pass, warn, or fail. A “warn” typically indicates a blood alcohol concentration between 50 and 80 milligrams of alcohol per 100 millilitres of blood. A “fail” indicates a reading at or above 80 milligrams per 100 millilitres, which is the legal limit under the Criminal Code. A warn results in a 3, 7, or 30-day prohibition depending on your history, while a fail results in a 90-day prohibition.
It depends entirely on the facts of your case. Reviews are more likely to succeed when there are procedural issues with how the IRP was issued, problems with the approved screening device, or failures by the officer to comply with the requirements of the Motor Vehicle Act. A lawyer can review the disclosure in your case and give you an honest assessment of your prospects.
Yes, in most cases. An IRP is reported to ICBC and becomes part of your driving record. This can result in higher insurance premiums at your next renewal. The extent of the impact will depend on your existing driving history and the type of prohibition received.
No. An IRP is an administrative action taken under the Motor Vehicle Act, not the Criminal Code. It does not result in a criminal record. However, if you are also charged with a criminal impaired driving offence, that is a separate matter and could result in a criminal record if you are convicted.
You are not required to have a lawyer, but having one significantly improves your chances of a successful outcome. A lawyer can identify legal and procedural issues that a layperson might miss, prepare well-structured written submissions, and represent you effectively at an oral hearing. Given what is at stake — including your licence, your insurance premiums, and potentially thousands of dollars in fees — the cost of legal advice is often well worth it.
An ignition interlock device (IID) is a breathalyzer installed in your vehicle that requires you to provide a clean breath sample before the engine will start. After a 90-day IRP, you are required to drive only vehicles equipped with an IID for a minimum of one year before your full driving privileges are restored. Attempting to drive a vehicle without an IID during this period is an offence.