How to appeal an administrative driving prohibition

This booklet provides basic information about administrative driving prohibitions and how to contest them.

WHAT IS AN ADMINISTRATIVE DRIVING PROHIBITION?
 
The British Columbia Court of Appeal in Buhlers v. Superintendent of Motor Vehicles (1999 BCCA 0114) held that driving is a privilege, not a constitutional right, and is therefore rightly subject to regulation.
 
An Administrative Driving Prohibition (ADP) is a driving ban issued in an impaired driving investigation under section 94.1 of the Motor Vehicle Act (MVA), and is separate from any Criminal Code charges or penalties that may result from the same incident.
 
While criminal charges are prosecuted within the Court system, and ADP is an administrative procedure overseen by the Superintendent of Motor Vehicles rather than a Judge.
 
 
RELEVANT MOTOR VEHICLE ACT SECTIONS AND DRIVING PROHIBITIONS:
Notice of Driving Prohibition - Section 94.1 of the Motor Vehicle Act
A police officer will issue a Notice of Driving Prohibition under s.94.1 of the MVA if a driver operates or has care or control of a motor vehicle and:
1)      has a blood alcohol level greater than the legal limit (ie: .08 or 80 milligrams per 100 milliliters of blood) at any time within 3 hours of operating a motor vehicle; OR
2)      that person fails or refuses to comply with a demand made under s.254 of the Criminal Code for a breath or blood alcohol test without a reasonable excuse.
 
The Notice becomes effective 21 days from the date of service and prohibits a person from driving for a period of 90 days. Because a person who receives a Notice of Driving Prohibition must surrender their driver's licence to the police officer at the time they receive it, the Notice also serves as a temporary licence so that you may continue to drive during that 21 day period.
 
You have 7 days from the date you received the Notice to request a review of the prohibition. The Review Process is discussed further below.
 
24 Hour Driving Prohibition – Section 215 of the Motor Vehicle Act
The police can also prohibit you from driving for a period of 24 hours if they have reasonable and probable grounds to believe your ability to operate a vehicle is affected by alcohol or drugs, even if your blood alcohol is not over the legal limit.
 
If the police give you a 24-hour prohibition without first testing your blood-alcohol level, you have the right to ask for a breath test. If the breath test shows your blood-alcohol level is not over .05, the police must end the prohibition. If you ask for a breath test, the police can use either an approved roadside-screening device (ASD) where they stop you or a breathalyzer at a police station. Demanding a breath test to show that you are under the .05 level could be risky; however, because if you blow over .08 you will be subject to a 90-day Driving Prohibition in addition to the 24 hours, plus you supply the officer with grounds to proceed with an impaired driving investigation and you could end up facing criminal charges and penalties as well.
 
It is common for a driver to receive a 24-hour driving prohibition under s.215 of the MVAat the same time they receive the Notice of Driving Prohibition (explained above). You MUST comply with the 24-hour prohibition regardless of the 21 day temporary licence. Driving while prohibited can lead to additional criminal charges, and you could face jail, fines, and further driving prohibitions.
 
If you receive a 24-hour prohibition, your vehicle will likely be impounded for those 24 hours and you will have to pay towing and storage fees. The 24 hour prohibition will also be added to your driving record. A poor driving record can lead to longer prohibitions from driving and difficulty getting or maintaining a job. If you receive three 24-hour prohibitions in a 5 year period, you will be required to participate in the Responsible Driver Program and have an ignition interlock system installed in your vehicle at your own expense.
 
You have 7 days from the date you received your 24-hour prohibition to request a review. The Review Process is discussed further below.
 
90 Day Driving Prohibition Period - Section 94.1 of the Motor Vehicle Act
The consequence of a Notice of Driving Prohibition is a 90-Day Driving Prohibition period, which begins the day following the 21-day period as discussed above. You MUST comply with the 90-day prohibition. Driving while prohibited can lead to additional criminal charges, and you could face jail, fines, and further driving prohibitions.
 
The 90 day prohibition will be added to your driving record. A poor driving record can lead to even longer prohibitions from driving, as well as difficulty getting or maintaining a job. If you receive 2 ADP's in a 5 year period you will be required to participate in the Responsible Driver Program and have an ignition interlock system installed in your vehicle at your own expense.
 
After the prohibition period ends, you will need to obtain a new licence before you can drive again. There will be a reinstatement fee, as well as any outstanding motor vehicle related fines, fees or debts owing to ICBC or the Province. If you cannot afford to pay all the fees at once, you may be able to negotiate a repayment plan during which time you will have a temporary licence. Contact your local ICBC office if you have any questions or concerns.
12 Hour Licence Suspension - Section 90.3 of the Motor Vehicle Act
A novice driver in the graduated licensing program may receive a 12-hour suspension if a breath test with an Approved Screening Device (ASD) shows that they have any alcohol in their body. If the police believe a novice driver has any alcohol in their body they must test the driver's breath because the suspension cannot be given by admission or observation alone as is the case with a 24 hour prohibition. The police can also issue a 12-hour suspension if the novice driver refuses the screening test.
 
There is no appeal mechanism or provision to directly remove this type of suspension from your driving record. If you disagree with the suspension, you may lodge a complaint with the police detachment identified on the notice of suspension.
 
THE REVIEW PROCESS
Although you have the ability to ask the Superintendent of Motor Vehicles to lift an administrative driving prohibition, the scope for doing that is very narrow and review applications rarely succeed.
90 Day Driving Prohibition
As mentioned above, you have seven (7) days from the date you receive the Notice of Driving Prohibition to request a review from the Superintendent of Motor Vehicles. The review instructions appear on the Notice of Prohibition that you were served.
 
To begin the process, take your Notice of Prohibition to the nearest ICBC location and ask to fill out an “Application to Review a Driving Prohibition.” The form MUST be filed at a driver licensing office within the 7 days from the date you received the Notice of Driving Prohibition.
 
Note: Failure to complete and file the form within the 7 days will likely prevent you from being able to appeal the prohibition. If you had a reasonable excuse for missing the deadline, you should obtain legal advice about how to apply for an extension.
 
Your review can either be done in writing or through oral submissions, and you must indicate your choice on the Review Application form. Please note that the review fee is $50 for a written review, and $100 for an oral review. If you choose the written review you must prepare a written submission and forward it to the Superintendent's office by a certain date. If you choose the oral review, you will present your case to an adjudicator over the phone on a scheduled date.
 
Once you submit your Application for Review, you will be provided with disclosure materials to help you prepare. The materials should include a copy of all the police information that the adjudicator will consider, such as the police officer's report, the certificate of prohibition, a certificate of analysis of breath samples (if available), and any other relevant materials. These materials will help you to determine whether there are any errors in the evidence and give you a good idea of your likelihood of success. If, after reviewing the disclosure you change your mind, you can contact the Superintendent of Motor Vehicles to cancel the review. Your review fee will be refunded to you, minus any outstanding motor vehicle related fines, fees or debts.
 
If you decide to continue with your review, keep reading to learn about the grounds for review and what issues you should consider before your review.
 
24 Hour Driving Prohibition
As mentioned above, you have seven (7) days from the date you receive the 24-Hour Driving Prohibition to request a review from the Superintendent of Motor Vehicles.
 
Note: Only written reviews will be conducted.
 
To begin the process, attend the nearest ICBC location and ask to fill out an “Application for Review of a 24-Hour Prohibition.” The application fee is $50, which is non-refundable. All relevant information must be written on the form, including the date and location where you were issued the prohibition. An ICBC customer service representative will forward your application to the Superintendent of Motor Vehicles.
 
Once you submit your Application for Review, you will be provided with a copy of the police officer's report to help you prepare. You may then send the Superintendent's office any evidence you wish to rely on to support your submissions.
 
Grounds for review:
The grounds under which you can seek a review are limited in either situation.
 
90 day driving prohibition:
1)      You did not operate or have care or control of the vehicle; OR
2)      Your blood alcohol level was not over the legal limit within 3 hours of driving; OR
3)      You did not fail or refuse to comply with a demand for a breath or blood alcohol test; OR
4)      You had a reasonable excuse for failing or refusing to comply with the demand for a breath or blood alcohol test.
 
24 hour driving prohibition
1)      You did not operate or have care or control of the vehicle; OR
2)      The officer failed to administer the blood alcohol test when requested.
 
Note: Hardship caused by the loss of your driver's licence is not a ground the adjudicator will consider.
Other issues to consider:
It is up to the driver to satisfy the adjudicator on the balance of probabilities that they did not commit the relevant offence, based on at least one of the above grounds for review. The driver may present evidence, including corroborating witness statements, diagrams, photographs, and expert reports.
You will want to carefully consider whether the officer's evidence includes the following:
l Proof of your identity (usually in the form of your confiscated driver's licence);
l the time and location of the incident;
l proof that you had care or control of a motor vehicle;
l a copy of the notice of driving prohibition;
l a certificate of service showing that the notice of driving prohibition was personally served on you;
l a report that is properly sworn or affirmed as required by s. 94.3(d);
l proof that the officer issued a demand pursuant to s.254 of the Criminal Code;
l a copy of a certificate of analysis as per s.258 of the Criminal Code.
 
Case Law:
Based on a review of recent case law, there appear to be several arguments which are likely to be successful – particularly for reviews of 90 day administrative driving prohibitions.
 
Arguments which are likely to be successful:
1)      The most commonly successful argument is that the police officer failed to issue a proper demand, pursuant to s. 254 of the Criminal Code, which states that a demand must be made forthwith or as soon as practicable. Some cases have held that a delay of as little as 4 minutes may be too long under the circumstances. If you have received a Notice of Driving Prohibition based on a refusal to blow, it is therefore advisable that you carefully consider whether there is proof that the officer issued the demand in a lawful manner. The adjudicators have consistently held that without evidence of a proper demand, there cannot be a failure or refusal to provide a sample.
 
2)      Another commonly successful argument is that the police officer failed to properly document the relevant times. The times indicated in the officer's notes may not flow in a logical order (ie: the officer states that you were driving at 22:26, but that they issued the breath demand at 22:18, theoretically before you were driving) or the officer fails to note the date and time of either the demand or the breath sample results. Errors such as these call the evidence into question. The adjudicators have consistently held that in the face of such errors, the evidence before them is insufficient to satisfy them that the driver's blood alcohol content was over .08 within 3 hours of operating or having care or control of a motor vehicle.
 
3)      If any of the police officer's evidence is missing, you may also be successful in arguing that they have failed to disclose all the essential information as required by s.94.3 of the Motor Vehicle Act. The Courts have ruled that compliance with this legislation is mandatory and that these documents, if they exist, must be forwarded to the Superintendent. The Courts have also said that the adjudicator should not proceed until he/she has inquired as to the whereabouts and existence of any missing documentation to ensure that there either is no such document, or to obtain it as part of the evidence before a re-hearing occurs.
Where essential information is missing and unobtainable, the reliability and accuracy of the evidence is called into question and the adjudicators have found that because the police did not disclose essential information, the driving prohibition must be revoked.
 
4)      If the police officer has failed to submit their Report to the Superintendent in the proper form, as required by s.94.3 of the Motor Vehicle Act, you may also be successful in arguing that their report was therefore flawed or improperly filed, and the prohibition should be canceled.
 
5)      It is also important that the police officer's Report to the Superintendent be properly sworn or affirmed as required by s.94.3 of the Motor Vehicle Act. Where the officer has not confirmed the truth of the evidence, the adjudicator may not consider it as evidence. Without that report, you may be able to successfully argue that there is insufficient evidence on which the adjudicator can uphold the driving prohibition.    
 
6)      A copy of the certificate of analysis, if one exists, is also required by s.94.3 of the Motor Vehicle Act. Where a certificate is not produced or the results on the tickets are illegible, you may be able to successfully argue that there is insufficient evidence of your blood alcohol content and that your prohibition must be revoked.
 
Note: While the above 6 points represent the most commonly successful arguments, there may be other submissions that would allow for your prohibition to be revoked, so make sure you carefully consider all of the evidence. You may also want to consult with a lawyer who has experience with this type of case, especially if you had a reasonable excuse for failing or refusing to comply with the demand for a breath or blood alcohol test, because those arguments can be very complicated.
 
 
Arguments which are likely to be unsuccessful:
1)      As mentioned above, “hardship” is not a valid ground that the adjudicator may consider. Therefore any arguments along the lines of “I will lose my job if I am unable to drive” or “I need to be able to drive to medical appointments” will be unsuccessful. While the reasons you want to retain your licence are important to you, they are not relevant to establishing your guilt or innocence, so do not waste your time trying to persuade the adjudicator that your review should be successful simply because you need to be able to drive.
 
2)      “It's not fair” is also not a valid argument. The Courts have consistently held that there is nothing unfair about the legislation or the potential impact on your driving record, so again, do not waste your time trying to argue “fairness” with the adjudicator.
 
Possible Outcomes:
Once the decision has been made, a written copy will be sent to you via regular mail. There are only two possible outcomes: your driving prohibition will either be revoked or confirmed.
 
90-day driving prohibition:
If, after considering all the evidence, the Superintendent is satisfied that you committed the offence, the adjudicator will confirm the driving prohibition and your 90-day ban will begin as scheduled.
 
If the adjudicator is persuaded on the balance of probabilities that you did not commit the offence, the driving prohibition will be revoked and you may reapply for a driver's licence. Your review fees will usually be refunded at this time, minus any outstanding debts or fees you owe ICBC or the Province.
 
24-hour driving prohibition:
The Superintendent must cancel the prohibition if the police failed to test your blood-alcohol level when you requested it, or if you were not the driver or did not have care or control of the vehicle. Because you have already served your prohibition, the only thing the adjudicator can do if you are successful in your review is to remove the prohibition from your driving record.
 
If, however, the adjudicator determines that the prohibition was properly imposed, it will remain on your driving record and will be considered in any subsequent driver improvement actions.
 
Review decisions are final and binding, but are subject to Judicial Review in the B.C. Supreme Court.
 
Note: There is no connection between the result of the ADP review and the result of a criminal trial or vice versa.
 
Timing:
Reviews occur in the order they are received, and are generally processed quickly because of the time constraints involved and the potential impact on your driving record.
An application for review of a Notice of Driving Prohibition will normally take place within the 21 days before the 90-day prohibition begins. If the hearing cannot be scheduled within that period, you will be granted an extension of your temporary licence until a decision can be delivered on your review.
 
Applications for a review of a 24-hour prohibition will also occur in a timely manner.
 
Judicial Review
Review decisions are final and binding, but are subject to Judicial Review in the B.C. Supreme Court, under the Judicial Review Procedure Act, R.S.B.C. 1996, c.241.
 
The standard of review is whether the decision of the Superintendent of Motor Vehicles was “patently unreasonable” (Gordon v. Superintendent of Motor Vehicles, 2002 BCCA 224) and is a very high standard to meet. The court accords the highest degree of deference to the Adjudicator's decision, and can only intervene where there is no evidence whatsoever to support the findings made by the decision maker (Hale v. British Columbia (Superintendent of Motor Vehicles 2004 BCSC 1358). 
 
You should speak to a lawyer before you decide to appeal.