Immediate Roadside Prohibition

The lawyers at Mickelson & Whysall are skilled at defending Immediate Roadside Prohibitions across British Columbia. We know the defences that work and that will result in your driving prohibition being revoked. We are constantly creating new and innovative arguments to defend Immediate Roadside Prohibitions in this new area of the law.

Brian Mickelson has been a criminal lawyer for 37 years and Joel Whysall has been a criminal lawyer for 12 years. They are experienced lawyers in defending impaired driving charges and Immediate Roadside Prohibitions. Cathryn Waker joined Mickelson & Whysall in 2012 and has developed a talent for defending Immediate Roadside Prohibitions, practicing almost exclusively in alcohol related driving offences. The lawyers of Mickelson & Whysall are able to utilize their skills, knowledge and experience to defend driving prohibitions under the new administrative regime. Mickelson & Whysall have been very successful in having numerous 90 day Immediate Roadside Prohibitions revoked.

Immediate Roadside Prohibition (IRP) Notice of Driving Prohibition

A peace officer may issue an IRP Notice of Driving Prohibition, following a demand to provide a breath sample on an approved screening device, when a driver is operating or has care or control of a motor vehicle, and:

  • The driver has a blood alcohol concentration not less than 0.05% BAC, this is the “Warn” range and a 3-day driving prohibition will be issued on a first offence;
  • The driver has a blood alcohol concentration not less than 0.08% BA, this is the “Fail” range and a 90-day driving prohibition will be issued; or
  • The driver fails or refuses to comply with a breath test without a reasonable excuse a 90-day driving prohibition will be issued

Common Defences to Immediate Roadside Prohibitions.

Evidence to the Contrary: The Approved Screening Device (ASD) registered a fail but based on the driver’s evidence the driver’s Blood Alcohol Content was less than 80 mg% in 100 millilitres of blood.

Incorrect Deemed Refusal: The driver made a genuine attempt to provide a suitable sample but was unsuccessful. The officer deemed the driver was failing to comply and issued a 90-Day refusal. In fact, the driver never refused to provide a breath sample.

Unreliable ASD: Approved Screening Devices (ASDs) are technical devices and are not infallible. The results of the devices can produce unreliable results for a number of reasons. For example, they may not be calibrated properly or administered correctly by the officer.

Care or Control: Care or Control is a legal definition and is not established by the fact that the officer issued the driving prohibition. Circumstances and intention are relevant considerations.

Reasonable Excuse: The law has a non-exhaustive list of reasonable excuses, including excuses arising from medical conditions or misconduct by the police. Mickelson & Whysall can help you determine if you had a reasonable excuse.

Unlawful Demand: In a refusal situation, the breath demand must meet the legal requirements. When the demand fails to comply with these requirements it is unlawful and the Immediate Roadside Prohibition must be revoked.

Defective Report: For the police report to be relied upon it must not contain deficiencies or inconsistencies. When the police reports contains deficiencies it should not be considered and the Immediate Roadside Prohibition must be revoked.

Denied Second Analysis: The law states that a driver has a right to have two breath tests and the lower of the two breath readings will prevail. If an officer denies the opportunity for a second analysis on a different machine the Immediate Roadside Prohibition must be revoked.

Please Read our Recent Decisions

Mickelson & Whysall led the way on challenging Immediate Roadside Prohibitions. They were successful in having the Immediate Roadside Prohibition regime struck down as being unconstitutional at the British Columbia Supreme Court on November 30, 2011. As a result, the legislation was amended and came into effect on June 15, 2012. Mickelson & Whysall continues to challenge Immediate Roadside Prohibitions Review Decisions in the British Columbia Supreme Court helping confirm the validity of defences to IRPs.

The consequences and stigma of the Immediate Roadside Prohibition include:

  • You will be prohibited from driving for 90 days;
  • You will pay a $500.00 monetary penalty;
  • Your vehicle will be impounded for 30 days and you will be responsible for the impound and storage fees – approximately $900.00;
  • You will incur $281.00 in re-licensing fees;
  • The 90-day driving prohibition will remain on your driving abstract for 5 years;
  • You will be required to register for the Responsible Driver Program – $880.00 plus $105.60 in taxes; and
  • You may be required to install the ignition interlock device in your vehicle – $1,370.00 plus $207.60 in taxes.

You only have 7 calendar days to file for a review of your Immediate Roadside Prohibition and avoid these consequences. Mickelson & Whysall can help you can defend your 90-day Immediate Roadside Prohibition.

Frequently Asked Questions

After receiving an Immediate Roadside Prohibition (IRP) you might have lots of questions and want reliable information from an experienced law firm about disputing your Immediate Roadside Prohibition, the consequences that can follow if you do not dispute the 90-Day driving prohibition and how to apply for a Review.

Here are some frequently asked questions. For more detailed information or answers to questions that do not appear here you can Contact our office 24 hours at (604) 688.8588

When does my 90 day Immediate Roadside Prohibition begin?

Your driving prohibition begins immediately when you are served with the Notice of Driving Prohibition.

Can I dispute the 90-day Immediate Roadside Driving Prohibition (IRP)?

You only have 7 days to apply for a Review of the 90-day Immediate Roadside Prohibition (IRP). Once we obtain the Report from RoadSafetyBC (formally the Superintendent of Motor Vehicles) we are able to review the Report and we can determine your likelihood of being successful after a Review. Mickelson & Whysall have the knowledge and expertise to identify the arguments and issues that result in having the 90-day Immediate Roadside Prohibition revoked. On a successful Review, your license is re-instated, the impounded vehicle is released to you and the storage and towing costs are paid by the Superintendent.

What are the Consequences if I don’t dispute the 90-day Immediate Roadside Prohibition?
  1. You will be prohibited from driving for 90 days;
  2. You will pay a $500.00 monetary penalty;
  3. Your vehicle will be impounded for 30 days and you will be responsible for the impound and storage fees – which are approximately $900.00;
  4. You will incur $281.00 in re-licensing fees;
  5. The 90-day driving prohibition will remain on your driving abstract for 5 years.
  6. You may be required to register for the Responsible Drivers Program ($880.00 plus $105.60 tax);
  7. You may be required to install the ignition interlock device in your vehicle ($1370.00 plus $207.60 tax).

The total monetary penalties could be up to $5000.00 or more.

How do I apply for a Review of the 90-day Immediate Roadside Driving Prohibition?

Call Mickelson & Whysall first. You have 7 days from the date you received the Notice of Driving Prohibition to request RoadSafetyBC (formally the Superintendent of Motor Vehicles) to review the Immediate Roadside Prohibition. The Review process can be started over the phone. Once we have your personal information and the facts of your case, we will obtain the police Report and all of the disclosure for you. The application form you need to complete to start the process is available at Mickelson & Whysall.

When do I have to apply for a Review?

You have 7 calendar days to file your Application for Review, from the date the Immediate Roadside Prohibition was issued. It is important that you do not miss the deadline.

What happens if I missed the 7 day deadline?

As of January 12, 2015 you can no longer apply for a late review. Currently, if you miss the deadline you can no longer apply for a later review.

What happens during the Review hearing?

At Mickelson & Whysall we choose to conduct oral reviews in most circumstances. These are administrative hearings that are conducted over the phone before an adjudicator from the office of RoadSafetyBC. It is a 30 minute oral hearing. The oral reviews ensure that the Adjudicator fully understands the legal arguments and gives us the opportunity to address any questions the Adjudicator may have. Ordinarily, the oral review are conducted without the client present and your Affidavit evidence is relied upon for the hearing.

How long does it take to get the decision?

The Superintendent must render a decision within 21 days of the date you were issued the driving prohibition. However, the Motor Vehicle allows the adjudicator longer than the 21 days if they cannot render a decision. A notice of extension will be issued in these circumstances, your vehicle will be released and your driver’s licence will be re-issued.

Do I need a Lawyer for the 90-day Immediate Roadside Prohibition Hearing?

In our experience, your likelihood of success is dramatically increased if you have an experienced lawyer defending the 90-day driving prohibition. The lawyers at Mickelson & Whysall have the skills needed to successfully defend your Immediate Roadside Prohibition. We know the defences that work and are constantly creating new defences in this new area of the law.

Do I even have a chance of having the 90-day Immediate Roadside Prohibition revoked?

Only an experienced lawyer who understands the law on Immediate Roadside Prohibitions and how to dissect the police Report can advise you on your likelihood of success. There are many technical defences on the proper administration of the Approved Screening Device (ASD) that may be overlooked by an inexperienced individual. Mickelson & Whysall knows the technical and factual defences that will result in having the 90-day Immediate Roadside Prohibition Revoked.

What do I have to do if I hire Mickelson & Whysall?

Once we have been retained by you, we do everything for you. We will obtain the police Report and disclosure from RoadSafetyBC (formally the Superintendent of Motor Vehicles). We provide you with the completed application for Review. We prepare all the Affidavits; the legal written arguments and any submissions. We conduct the Oral review before an Adjudicator from RoadSafetyBC.

Can the impounded vehicle be released early?

The impounded vehicle can be released early in certain circumstances. It is best to consult a lawyer first as there are only specific grounds of Review. For example: if the impounded vehicle is relied upon by another member of the household for the purpose of education, employment or medical appointments, the vehicle may be released. If the impounded vehicle is used for generating income for a business, the vehicle may be released. Before you begin this process contact Mickelson & Whysall to discuss the likelihood of success and the different applications for a Vehicle Impoundment Review.

Is the 90-day Immediate Roadside Prohibition a Criminal Charge?

No. Police officers can either issue an impaired driving charge pursuant to the Criminal Code OR a 90-day Immediate Roadside Prohibition. This Crown Counsel policy is not to approve criminal charges if an Immediate Roadside Prohibition is issued. The 90-day Immediate Roadside Prohibition is an offence under the Motor Vehicle Act and will only be reflected on your driver’s abstract.