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 Moore 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.
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.