May 20, 2017
Unfortunately, for the majority the answer is no.
Only about 30% of all IRP review hearings will end in a favourable decision for the driver, with the majority of IRPs being upheld by the RoadSafetyBC adjudicator. So how can you to predict if you (or your client) is going to be in the lucky few? First, you can review all the disclosure documents for errors, omissions, or inconsistencies. Sometimes (and this happens more often than you would think) an officer will put something in the police report that undermines the case for the IRP.
Recently, I reviewed a refusal IRP file where the police officer wrote that the first of the ASDs he used “was not working properly” and he went to a second ASD. This statement was not in the police narrative (where it should have been), but tucked away in a very short synopsis in the last page of the disclosure documents. More importantly, the officer had used the driver’s failure to give a sample into this faulty device as evidence of the refusal! Of course it wouldn’t be correct to expect a driver to provide a sample into a device that wasn’t working, and I said so in my report. A less careful review of the documents may have overlooked such a small detail in all the disclosure documents.
You can also carefully assess the evidence in favor of upholding the IRP (because that is what the adjudicator will do!). In addition to the readings from the ASD test(s), the police officer often records evidence not only of impairment, but of intoxication too. There may be evidence of slurred speech, poor balance, staggering, or there may be poor driving. Is this evidence consistent with the ASD tests, or could there be another cause? If the evidence of impairment and intoxication is strong, it is less likely an adjudicator will accept the argument the ASD tests are wrong.
I will often review the IRP disclosure documents of a potential client (whether a lawyer or driver) before I write a report, and I will tell them if I think my scientific report will be helpful. Unfortunately, in many cases I have bad news and, for drivers with a lot at stake, it can sometimes be tough for them to hear my report won’t help them. But for a portion of these clients, the disclosure documents will have identifiable errors or inconsistencies that I can document in my report.
In these situations, my report may put the client in the group with a favourable IRP review decision.