Impaired Driving / Immediate Roadside Prohibitions (IRPs)

Impaired Driving / (IRPs)

We have over 30 years combined experience in fighting impaired driving and motor vehicle related Criminal Code charges.  Prior to September 20, 2010, almost all impaired driving investigations were prosecuted criminally and all of the information below applied and enabled us to forge Charter winning arguments to protect your rights.  However, since the induction of the Immediate Roadside Prohibition (IRP) regime, most first-time offenders are now being dealt with summarily at the roadside.  This is both good and bad news for motorists, because on the one hand, it means you will not be facing criminal charges, however it also means that your case is handled in a summary fashion and is no longer protected by many of the Charter rights that citizens come to expect.  The effect of this means your rights and legal defences are significantly limited.

However, even prior to the IRP regime, the BC Motor Vehicle Act already had similar legislation known as the ADP regime (administrative driving prohibitions) and we have had lengthy experience in handling those matters.  As such, although you've probably read on a number of other websites that you have no chance of success with the new IRP regime, the reality is there are indeed defences - they're just trickier.  The process is simplified greatly, but success is largely dependent on having a competent lawyer scope out any legal defences with a fine tooth comb.  This is exactly what we do - call us to see if you have a shot.


Initial stop:

The Supreme Court of Canada has repeatedly ruled that the police have the right to conduct routine motor vehicle stops. That means they can ask you for your driver’s licence and vehicle registration, but they cannot force you to get out of your vehicle or start searching your person or your vehicle absent reasonable and probable grounds that you are committing an offence.

Criminal Code Charges For Driving Under The Influence Of Alcohol

S. 253 Everyone commits an offence who operates a motor vehicle... or has care and control of a motor vehicle , whether it is in motion or not:

  1. while the person’s ability to operate the vehicle is impaired by alcohol or a drug (impaired driving)
  2. having consumed alcohol in such a quantity that the  concentration in the person’s blood exceeds eighty milligrams of alcohol in 100 millilitres of blood. (over 0.08)

Care and control:

You can be investigated for and charged for these offences, not only if you have been driving, but also if you were in care and control of a vehicle, which is defined as being seated in the driver’s seat, especially if the vehicle was running. Sometimes people just have their vehicle running for air-conditioning or for heating, and we can disprove the charge by bringing evidence that you had no intention to set the vehicle in motion and that there was no danger the vehicle would be set in motion.

Mandatory Minimum Sentence and Driving Prohibitions:

If convicted for or if you plead guilty to one of these offences, you will be subject to a minimum $1000, fine. Furthermore you will now have a criminal record. Most importantly you will be subject to a minimum 1 year driving prohibition for the first offence.

For a second offence (within 10 years of the previous conviction) the Superintendent of Motor Vehicles in British Columbia will prohibit you from driving for 3 years and after a third conviction you will receive a life-long driving prohibition.  The judge will also likely impose longer driving prohibitions for each subsequent offence, these apply on a national level

For a second or multiple prior convictions, the Crown routinely asks for a jail sentence to be imposed and if a notice of intention to seek greater punishment has been served and is presented in court, the judge must impose a minimum jail sentence in those cases.

Impaired driving charge:

In order to prove this charge against you, police officers and/or civilians are called to testify to symptoms of impairment – such as bad driving, smell of alcohol, lack of balance and coordination; red and watery eyes, slurred speech...  All these symptoms can be attacked in cross-examination and alternative explanations can be provided, for example you may have red eyes because of allergies, or you might walk gingerly because you had a knee operation.

Over 0.08 charge:

In order to prove this charge against you a police officer has to take you to the police station and obtain a sample of your breath into a breathalyser instrument. In order to do that he has to have reasonable and probable grounds that you are committing an offence under Section 253. A mere suspicion is not good enough and we can attack both the objective and subjective grounds of the officer.

Roadside screening device and sobriety tests:

Still a reasonable suspicion that a person has alcohol in his/her system can enable an officer to obtain a sample into a roadside screening device. This is why officers often ask you if you had anything to drink, you do not have to answer this question, but if you answer that you had some (or a couple of) drinks that can provide a reasonable suspicion. Similarly the smell of alcohol on your breath can be used to that effect; this is why officers sometimes ask you to step out of the vehicle. We believe that constitutes a hidden sobriety test and seek the exclusion of such evidence.

If you fail a roadside screening device demand, this is used by police officers to form their reasonable and probable grounds to proceed to take you to the police station and obtain proper samples there. Similarly they can use roadside sobriety tests, but they have to alert you to the jeopardy you are in. We routinely cross-examine on the manner in which these tests are conducted and their validity.

Breath samples at the police station:

You will be required to provide two breath samples at the police station. You have the right to speak to a lawyer of your choice before that, you have to be provided a phone book or the officers would have to make all efforts you would make to contact your counsel of choice for you. The officers have to conduct a 15 minute observation period before each sample, to ensure you have no mouth alcohol. If you burp or belch, the observation period therefore has to be started over. The first sample has to be obtained within 2 hours of driving, otherwise the Crown cannot rely on the certificate prepared by the breath technician and would have to call an expert. We can take issue with the breath sampling procedure through cross-examination or by calling an expert.  
If you were in an accident or are not able to provide breath samples, blood samples can be obtained.

Refusal To Provide A Breath Sample

Failure to provide a breath sample in a roadside screening device or at the police station also constitutes a criminal offence and carries the same penalties as impaired driving. Many persons find it very hard to provide a breath sample, which requires a long, constant blow. If you were not given proper instructions or if you have medical reasons why you could not provide a proper breath sample, we can defend your charges accordingly. If available we will also obtain videos to review the breath sampling procedure.

Dangerous Driving Charge

Operation of a motor vehicle in a manner that is dangerous to the public is a separate Criminal Code Offence (s. 249 CCC), in order to prove this event a serious deviation from proper standard of operating a motor vehicle is required. A momentary lack of judgment or oversight does not constitute this charge. Upon conviction you also face a mandatory 1 year driving prohibition and longer ones for repeat motor vehicle related criminal code offences.

Driving Offences Causing Bodily Harm Or Death And Criminal Negligence Causing Death

Driving charges that involve causation of bodily harm or death usually result in more stringent sentences. A person can be charged with criminal negligence causing death if they operated a vehicle in a manner that was reckless to human life, for example a street-race. This charge can carry an extended jail sentence.

Contact Us


Tessmer Law Offices
272 Bernard Avenue,
Kelowna, British Columbia
V1Y 6N4


tel. 250-762-6747
fax. 250-762-3163

email. [email protected]

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