"Should I fight my IRP?" - it's worth a shot

You've probably heard a lot of mixed messages in the news lately about whether IRPs are still fightable or not.  Some people have been saying that as long as you have no symptoms of impairment then the law says the IRP must be overturned.  This is in line with two decisions that came out earlier this year called Wilson and Richardson.   However, last month these two decisions were overturned by the Court of Appeal.  Even many lawyers still are unsure of what the current law is.  So...I decided to set it out for you clearly in this post.  The Court of Appeal said:

"    The statute recognizes that not every drinking driver is "impaired", but the purpose of the statutory scheme includes removing drivers from the road who may pose a risk of causing injury by employing a common standard, regardless of a particular individual's tolerance for alcohol.

    In summary, the purpose behind the ARP regime is to reduce the number of deaths and injuries resulting from alcohol-related crashes by getting drinking drivers off the roads. To achieve this goal, the Province has established an administrative regime, which is triggered when a driver's breath sample registers a WARN or a FAIL on an ASD. The adjudicator's interpretation of the section is reasonable because it furthers that purpose.

    Finally, although the point was not directly is issue, I note that the courts have previously characterized the statutory scheme as involving issuing notices of driving prohibitions on the basis of analysis results without the need for further evidence that a peace officer has reasonable grounds to believe that a driver's ability to drive is affected by alcohol. This Court, for example, endorsed Sigurdson J.'s characterization of the ARP regime in which prohibitions result from the happening of an event, namely a driver registering a WARN or FAIL:

• • [19] The ARP regime provides for a mandatory driving prohibition when a motorist's ability to drive is affected by alcohol, as evidenced by an analysis of breath by means of an "approved screening device" (ASD) that registers either a "warn"... or "fail" ...

• • ...

• • [105] Primarily, the ARP legislation provides for a license suspension and incidental penalties and costs on the happening of an event: a peace officer, based on an approved screening device showing a "fail" or "warn", believes that a driver's ability to drive is affected by alcohol, and imposes a prohibition and related consequences accordingly. [Emphasis in original.]

    The prohibition follows "the happening of an event"; not the happening of an event and something more supporting a reasonable belief. There is no suggestion in Sigurdson J.'s analysis that more than a WARN or FAIL is required for the officer to conclude a driver's "ability to drive is affected". In my view, this characterization of the working of the scheme offers further support to the conclusion that the adjudicator's interpretation was reasonable."

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If that was confusing, then here's the short form summary: the IRP legislation does NOT require specific evidence of bad driving in addition to a "warn" or "fail", so if a police officer demands you give a sample of your breath at a roadcheck stop and you blow a 'fail' or you refuse to blow (EVEN IF YOU'RE NOT IMPAIRED), then that is sufficient to issue an IRP and its penalties.

However...that does not mean your case cannot still be won.

There are a number of other procedural grounds to still consider in each case.  For example, is the document properly sworn?  Are the devices properly calibrated?  If you refused to blow, was the officer's demand based on lawful grounds?  If you blew a Fail, was that fail reliable or might it have been contaminated by mouth alcohol? 

Although success is never guaranteed, it's worth at least looking into it and seeing if you have a shot.  Worst case scenario: you end up in the same spot you were in had you chosen to do nothing.