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Reviewing or Appealing your Surrey Metro Vancouver DUI Roadside Prohibition
July 26th, 2011 by gosal on

The Process for Reviewing or Appealing the Officer’s Decision to Prohibit you for 90 days for an Immediate Roadside Prohibition under the new BC DUI Drinking and Driving Laws in an Administrative Scheme. Our office handles DUI cases across Metro Vancouver, including Surrey, Vancouver, and all parts of British Columbia.

Applying to Appeal the Officer’s Decision: In order to start the process for your DUI Immediate Suspension, you will file your Application for Review, pursuant to 215.48 of the Motor Vehicle Act. This is to be done as soon as possible, as you are already immediately prohibited from driving, and no event, later than within 7 days of the date of service of the Notice of Prohibition, section 215.47. You can meet with us before to discuss the grounds.
The Application Form for Review includes: (check all applicable boxes)

1) I was not driving or in care or control of the motor vehicle;

2) An approved screening device did not register a WARN reading (5O+ milligrams of alcohol in 100 milliliters of blood);

3) An approved screening device did not register e FAIL reading (80+ milligrams of alcohol in 100 milliliters of blood);

4) I did not fail or refuse to comply with the peace officer’s demand to provide a breath sample;

5) I had a reasonable excuse for failing to comply with the peace officer’s demand to provide a breath sample; or

6) My 7 or 30-day prohibition should reduced because I did not have the required number of previous IRP(s).

Disclosure: Once we are Retained (hired), we then Review the Police Reports, which can include details about your DUI investigation, or IRP investigation. It usually gives details and evidence about issues like:
1) Driving or Care or Control: how was the person identified as the driver of the vehicle
2) Reasonable Grounds for Demand;
3) Calibration of Devices;
4) Service of Devices;
5) ASD Demand;
6) Refusal or Failure to Comply with Demand.
Approved Screening Device Demand Read: (the “ASD”): For the purposes of sections 215 and 215.41 (2) of the BC Motor Vehicle Act, the following devices are prescribed and used commonly by departments like Surrey RCMP, Vancouver Police Department, Richmond RCMP, New Westminster, etc:
(a) Alcolmeter S-L2;
(b) Alco-Sensor IV DWF;
(c) Alco-Sensor FST.

The Officer has to make a Demand, pursuant to the Criminal Code, for an ASD. The OSMV does not seem to care whether the demand is actually lawful pursuant to the Criminal Code. The ASD “screening devices” were previously only used for helping the officer determine on some objective basis, whether to confirm her grounds for making a Breath Demand under the Criminal Code.
Usually other corroborative evidence or indicia of impairment is required, such as watery, bloodshot eyes, odour of liquor on breath, bad driving, slurred speech, unsteady gait, admissions of consumption, etc.
The person was then taken back to the local detachment to be presented to a Qualified Technician for a BAC Datamaster; where you would have an opportunity to speak with your lawyer under the Charter of Rights Section 10, to contemplate your legal rights before blowing into the machine to provide 2 sufficient samples, and would get an actual readout, and “BAC Ticket” with your BAC Reading, and also information about the device.
In contrast, the Roadside ASD only provides a Pass, Warn, or Fail, and gives no numerical figure under normal use by BC peace officers.
The Minister of Public Safety and Solicitor General, through the Office of Superintendent of Motor Vehicles is assigned the task by statue to conduct the “Review” of the Officer’s Decision.

What is interesting, and probably unconstitutional in my opinion, is that the OSMV is designated as the sole body to review the decisions, but they do not even ensure compliance with the statutory provisions regarding the new laws, but simply robotically repeat, that they have only enumerated and narrow grounds for appeal. It’s not their fault perhaps, but the government in failing to provide an adequate grounds for review.

Of course, the old system was having the officer take detailed notes, submit a report to Crown, for an independent review by a Crown Attorney, for legal sufficiency of the likelihood of conviction, and allowing a Judge to make the decision, all-while being Presumed Innocent and throughout the trial, and only then if the evidence is to such a degree that it removes all reasonable doubt…but of course that would probably be all too costly, with officer costs; constitutional rights etc.
When its not about the Money; it’s probably about the Money. $$$$$ Government revenues are low probably at an all time low, the USA is in debt-crisis, having to increase its Federal debt ceiling or face national default, and our public purse is probably not that far off. Now, instead of the government paying the officer Overtime for going to court, and paying for judges, and prosecutors, and the lights at the Courthouse, they can simply have the officer tick off several boxes, and bypass the whole system of your Criminal Rights, under the guise of an Administrative Regime.

George Carlin, great comedian, and realist, has a clip on Rights, probably available on Youtube, but one part seems to ring a bell here, and is:
Now, if you think you do have rights, I have one last assignment for ya. Next time you’re at the computer get on the Internet, go to Wikipedia. When you get to Wikipedia, in the search field for Wikipedia, I want to type in, “Japanese-Americans 1942″ and you’ll find out all about your precious fucking rights. Alright. You know about it.

In 1942 there were 110,000 Japanese-American citizens, in good standing, law abiding people, who were thrown into internment camps simply because their parents were born in the wrong country. That’s all they did wrong. They had no right to a lawyer, no right to a fair trial, no right to a jury of their peers, no right to due process of any kind. The only right they had was…right this way! Into the internment camps.

Just when these American citizens needed their rights the most…their government took them away. and rights aren’t rights if someone can take em away. They’re privileges. That’s all we’ve ever had in this country is a bill of TEMPORARY privileges; and if you read the news, even badly, you know the list get’s shorter, and shorter, and shorter. [emphasis added]

Yeup, sooner or later the people in this country are going to realize the government doesn’t give a fuck about them. the government doesn’t care about you, or your children, or your rights, or your welfare or your safety. it simply doesn’t give a fuck about you. It’s interested in it’s own power. That’s the only thing…keeping it, and expanding wherever possible.

Personally when it comes to rights, I think one of two things is true: either we have unlimited rights, or we have no rights at all.” Citation to George Carlin.

So we now have a system where the Office of Superintendent of Motor Vehicle says the Charter doesn’t apply to your DUI immediate Roadside Prohibition, because the Laws says it doesn’t apply, because the Government says it’s not Criminal, and no Charter of Rights apply.

The best thing you can do is at least retain experienced DUI IRP counsel, for your IRP throughout BC, and get a legal opinion, as to whether the officer has complied with the Statute, and if your case is worth appealing.

Contact Barrister Dil Gosal at WABCLawyers@aol.com for your Metro Vancouver or Surrey DUI or Immediate Roadside Prohibition.

Failure or Refusal to Comply with Demand: the officer might have deemed that you refused, or failed, when you really didn’t. This may be a ground for appeal, if the officer was incorrect in his analysis.

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