The Biggest Failing of BC’s DUI Law

When the British Columbia government introduced its new drinking and driving laws, it touted the penalties as swift and severe. It was, and still remains, the toughest drinking and driving law in Canada. Many people, including myself, were aghast at the idea that roadside justice was replacing a proper legal method of separating the innocent from the guilty that respected the presumption of innocence.

The first version of the legislation was found unconstitutional in part by the BC Supreme Court, and is currently under consideration by the Supreme Court of Canada. The second version was determined to be constitutionally valid. And the third version is slowly being regulated into existence. One of the elements of the law that the government and the courts have praised is its rapid response to the social problem of drinking and driving.

But, ironically, this is the biggest failing of the law.

The legislation is set up to allow drivers only seven days to challenge their driving prohibition, and does not grant extensions even in the most unusual circumstances. The Superintendent is required to render a decision after a review hearing within twenty one days of the date the IRP is issued to the driver. It is evident that this is a short process.

But there is a loophole in the legislation. The Superintendent is not required to actually render the decision. He is entitled to grant himself an extension, without a hearing on the merits of granting an extension, and render a decision at a later time. Better yet? There is no requirement for the Superintendent or any RoadSafetyBC staff to explain why an extension was granted. And while the legislation allows the Superintendent to reinstate the driver’s driving privileges, he is not required to do so. This means that you can theoretically serve your whole 90-day suspension even though you challenged it and have not been given a decision.

Now, to be fair to RoadSafetyBC adjudicators, it is not often that the driving prohibition is not put on hold until a decision is rendered. But even so – this is a big failing of the law. I have run out of space in my office to store files for people whose cases I have argued but whose decisions have not been rendered. Some of my clients have now been waiting more than two years for a decision. That, in my view, is absolutely unacceptable. There is no reason why anyone should have to wait that long for a decision.

Oh – and the hearings aren’t recorded. Any thrust to my submissions made orally over the phone is long gone now.

In the criminal law world, delays to have a case heard and decided that span this long are often found to violate a driver’s Charter rights. And in those instances courts are dealing with complex legal issues involving witnesses testifying, having an open courtroom in which to hear the case, Charter arguments and preliminary applications, and cross-examination. None of these elements are present in an Immediate Roadside Prohibition review hearing. In fact, you’re limited to 30 minutes for your submissions. So why does it take the adjudicator more than two years to make a decision?

I certainly cannot say. Among the stacks of files in my office are dozens of decisions where the adjudicator cannot even indicate when a decision might be made. Others are cases where the file is thick with copies of Notices of Extension that come every three months on the fax machine like clockwork. And the poor people who paid their $200 for an oral review to ICBC expecting a decision in the twenty-one day period still have no justice.

Man. If I paid $200 for something and I hadn’t received it two years later, I’d be pissed off. And I can understand why many of my clients are too. It’s hollow getting your license and your car back when you still don’t know whether and when the Government is going to swoop down and take it away again.

As if that isn’t bad enough, drivers who receive these extensions continue to be prejudiced by the Immediate Roadside Prohibition. They are required to pay the impound fees up front before their car will be released. The Government promises to reimburse drivers whose decisions ultimately come back favorable, but that money could be used for something else, particularly if the expense is not justified. Worse still is the fact that the IRP remains on the person’s driving record.

That’s right. Your driving record says you’ve had a DUI even though the decision on its validity hasn’t been made. That’s absurd. Even speeding tickets aren’t recorded on your driving record until the dispute is resolved. We know that the fact of this record on your driver’s abstract can then subject you to many of the 99 Consequences of a DUI in British Columbia. I’ve had clients who have been served further driving prohibitions, Driver Risk Premium invoices, and whose insurance rates have been increased or coverage denied all because RoadSafetyBC’s tribunal has failed to follow through on their obligation to make a decision. And don’t get me started on the referrals to Remedial Programs. Many of those letters have mistakenly been sent to clients whose decisions have not been made yet.

When I contact RoadSafetyBC to advise them of the problem I’m simply told they’re “aware of the problem” and “considering some options.” Of course, these issues are dragging on for some clients for two years. It’s pretty difficult to ascertain how they’ve been aware of the problem for this long and yet haven’t been able to find a workable solution.

My suggestion? If a Notice of Extension is issued, delete the IRP from the driving record. Re-enter the IRP once the decision is rendered, if the IRP is upheld on review. Took me about five seconds to come up with that one. And if it’s a problem of having systems in place, I could suggest some decent programmers who could put the code together quickly.

This is not to say that there aren’t many decisions rendered in the appropriate timeline. I’ve succeeded in countless IRP DUI reviews in the last two years. Heck, in June 2015 I won over fifty cases. There’s no shortage of decisions coming through the fax machine. So we know that the adjudicators are out there, working, and capable of rendering decisions. This really makes one wonder what the motivation is to refuse to render decisions in some cases.

Whatever the motivation, the notion that the IRP penalty is swift and severe is simply inaccurate. In some cases it might be. In many it is not. And in many others, the penalty wasn’t justified to begin with. This failure of BC’s DUI law is the biggest one out there. What’s the point of having an Immediate Roadside Prohibition regime that isn’t immediate?

66 thoughts on “The Biggest Failing of BC’s DUI Law”

  1. Good said,
    I am very disappointed in this law. What law punish innocents.
    My husband was driving a car and I am the one who will end up paying everything. Since he lost his driving licence for 90 days and he is not able to drive – he also lost his job because driving is the only way he could get to work (he is electrician and works every day on different location(s)).
    What is my fault in all that happened.
    Car they took away for a month is my car at the fist place. We are both registered owners but I am principal operator and I am using it for work, to take my son to/from daycare, to go to see doctor, to grocery shopping (for everything).
    Taking public transportation does not work for me for multiple reasons.
    Putting all that on side – I did not do anything wrong, never in my whole life. I was the one who never brakes the law (any law, whether that was state law or strata bay-law. But yet I will have to pay materially and even worse for me all this so negatively affects my already not good health.
    I am so frustrated, angry, disappointed and can’t find the proper word to describe how bad I feel in this moment.

  2. Hi Milanka,
    I understand your frustration. This is one of the great unfairnesses of this scheme, is that people who have nothing to do with actions of another person are put out by it. It affects families and employers in a negative way, even though they bear no responsibility for what happened. I’m sorry to hear what you’re going through.

  3. I received a 90 day irp on June 28 / 2015 which I disputed within the 7 day time period, they phoned me 20 days later saying they couldn’t make a decision and that my review was extended. My truck and licence was released that day. Shortly after I received a letter reporting my review extension until October 31 / 2015. Today, November 3 / 2015 I received another letter reporting a second extension until April 28 / 2016 ! I have never received a phone call about my review, nor have any of my witnesses received a phone call from ministry of justice. It sure would be nice to know what’s going on…. Any ideas or feedback would be great !

  4. I’ve been waiting for a decision on my IRP for over fourteen months. A hollow feeling indeed, as you say, to not know if any day you’re license is gone. (And I wasn’t even driving at the time of the incident. I had no idea IRPs existed nor that you could get one just for being tipsy standing outside your vehicle. Caught me completely unawares.) Is it worth calling them to freak out about it? Threaten a class action suit for emotional distress? Or what?

  5. I also tried to get my car earlier by filling for compassionate review. The lady I spoke to accepted all my reasons except one – my husbands uncle was able to drive me to and from work for fist two days. She did not even asked me if he would be able to do that for a month. I would never think I have to justify that somebody who does not even live in the same house with us can or can’t drive me every day. Nobody is obligated to do that and everybody has his/hers own business to do. Like he is spending his days waiting for me to call him to drive me around. Of course he is busy with his own life, with his own children and grandchildren. What an idiotic reason for negative decision.

  6. Hi. Great Read Thank You. I was also wondering about the extensions they grant themselves.
    I received my IRP in March 2015. After the 21 days I was able to get my licence & car back with a notice that that a decision would be made in 3 months. That dead line came and went with another 3 month notice. That deadline came and went, but this time they granted themselves 6 months to render a decision. I’m now a few weeks away from a full year of waiting…How many extensions can they grant themselves. I just wish to have the decision made already. Does ICBC just not have the funds to pay what it is owed to me for the re-licencing and towing. Maybe they need to instruct officers to due better screening and not hand out so many poorly issued prohibitions.

  7. I have an IRP from last September. A letter dated October 13,2015 says I have a notice of extension. A decision will be sent by April 12, 2016. But my car insurance is due April 7. Any advice is much appreciated!!

  8. So you were able to drive this whole time waiting after your car and license were released and while waiting for your review that keeps getting extended? Or did you not drive for the 90 days? just received a 90 day prohibition 4 days ago and i am going to Send a letter in to appeal. How do I go abouts writing this letter and where do I drop it off? Thanks for your reply.

  9. Hi Rachel
    Yes, you’re able to drive, once you get a new licence issued and car released; IF they are unable to render a decision within 21 days of getting your IRP. But you have to cover the costs of writing the review within 7 days, getting a new license issued, and storage/towing fees of your car for those 21 days.
    So even if you’re cleared of the IRP you’ll have spent 21 days of the 90 not driving and be out the cost of the review. Towing and Licencing fees will be paid back to you, but that’s it.
    If you’re not cleared of the IRP, you’ll have to surrender your license and spend the remainder of the 90 days without. Depending of the results, you might have to to have the Interlock installed on your car and take the responsible driving program and pay the all the re-instatement fees and fines.
    You can submit the letter at your local driving licence office. They have forms for you to fill out based on what grounds you’re submitting for a review. They will give you a copy of the police report as well and allow you attach any documentation you want.
    I say go down to your licensing office, get a copy of the report. Review it Write your letter or get an attorney Like Kyla Lee to write it upon your behalf and submit within the 7 days. You must act quickly though

  10. 90day irp.. I’ve never had this before. I put it off because I had many other priorities. I didn’t realize I had 7 days? Issued may 24 2016.. it’s June 19? I thought it said I had 30 days to dispute. Far too late now I guess?!

  11. Yeah, the 7-day window is their coup de grâce. Though I’m pretty sure the cop by law has to tell you about it.

  12. Chad J Michell

    I recieved an IRP (120 Days) on May.24/16 for a 24hr suspension dating back to Oct.2007 while I was visiting BC. I had my Class 5 Alberta License for almost 3 years at that point. I was not operating the vehicle either. Turns out ICBC was treating me as a “New Driver” from my previous days of living in BC, dating back to 2004.
    My BC GDL license was issued to me in April.2001 but RoadSafety BC still wants to consider me a New Driver in 2016? I just moved back from Alberta after 12 years with a perfect driving record.
    I submitted my papers for review on May.26th/2016 and still haven’t heard anything from RoadSafety. I haven’t been able to drive and work.
    Why is it fair for RoadSafety to treat me like a new driver when I’ve been driving for over 16 years with no DUI’s or Convictions?

  13. Kayla, would you know how they go about on decided whether to approve or deny the submition? like who they talk to if they can call witnesses ect? do you know if they can use any information that is not on the police report against you ?

  14. Thanks go to you Kyla Lee, and, in my particular case, Sarah Leamon, of Vancouver Criminal Law, for all of your past efforts challenging B.C. IRP legislation, and, specifically, in obtaining an ultimately successful outcome for me with respect to revoking a 06MAR16 IRP. The one year time span taken by the Adjudicator to render a decision, is, in my experience, punitive in and of itself.
    The B.C. IRP program aspects that I have become personally familiar with throughout the period 06MAR16 to date are troubling indicators of legislation and a set of policies that seriously lack transparency, accountability and timeliness. We should not allow ourselves to be fooled into thinking that we, as Canadians and British Columbians, are immune to the post-9/11 radical-right mentality that is resulting in our American cousins steadily losing their liberties. The same thing appears to be happening here … this B.C. IRP program is a prime example.
    With respect to recovering costs incurred for this revoked IRP, I am likely expected to absorb my legal costs with your firm and the 200.00 Oral Review Hearing filing fee (as well as all other directly related peripheral costs), aside from the initial towing, impoundment and storage fees.
    Please advise if you or your firm are aware of a class action lawsuit to recover B.C. IRP costs that go beyond what RoadSafetyBC has acknowledged in their 22MAR17 REVIEW DECISION letter that they will re-imburse to me, as would be the case in any other legal matter where those that would take one to task are expected to bear all costs if ultimately unsuccessful.
    Thanks for any guidance you can offer, and, best regards,

  15. I just got an extension on my review descision that matches up with the date my wife’s car ( which i was driving when the IRP was issued) is released from the impound. Anyone ever have this happen?

  16. Did you ever get anywhere with this Chad? As i am now in a similar scenario where ICBC is trying to make me start from zero with a class 7N licence after 10 years of driving in AB. At first I was told by ICBC that even though i surrendered my N in 2008 and have had an AB class 5 or 1, that when i cross the border into BC i would operate under my surrendered 7N.
    However now after having the local MLA contact them the story has changed. I was just told today that the reason they are wanting me to start over ( knowledge and eye test, then apply for N, then a road test and 2 years in the graduated licence program) is all because of my driving history. However there is paperwork showing their original story.
    Any advice is greatly appreciated. Thank you and i hope you got it all sorted out. I now habe the local MLA advising me to speak to a lawyer.

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