An article was published on the CBC website this week, suggesting that impaired driving incidents are not properly declining due to "loopholes." Frankly, as a lawyer who deals primarily with impaired driving cases, I found this article to be offensive and ill-informed. I want to use this blog post to address some of the most concerning aspects of this article, and the opinions quoted in it.
What is a loophole?
A loophole is different from a defence. Wikipedia defines a loophole as "an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system." The point of a loophole is to contravene the intent of a law, without technically breaking the law. Think of it as following the letter of the law, but not its spirit.
Most people do not need to hire a lawyer to deal with criminal matters very often in their lives. And so they do not know what they are supposed to consider when hiring a criminal lawyer. It's often easier to hire a lawyer to help with a real estate transaction, a divorce, or a will, for example. These are the types of lawyers that many people need, and people are not embarrassed to ask for references or recommendations from friends. But criminal charges can be a different story entirely. Most of my clients have not told anyone outside their immediate family about the problems they are facing. So choosing the right lawyer can be difficult.
Price is one factor that goes into people's decision making about their lawyers. While there are clearly limitations based on what you can afford to spend, you should not be guided so much by the cost of the lawyer. There are some very excellent lawyers who come at a low price. There are some lawyers who charge more but may not be as skilled in a particular area. There is an old saying that goes "You can pay $500 for $5 of advice from an old lawyer, or $5 for $500 of advice from a young lawyer.
Legal fees are not standardized. Lawyers set their own prices, largely based on what they believe their services are worth. At our office, we try to keep prices reasonable because we do not believe anyone should have to go broke defending themselves from a criminal charge. Our fees are mostly determined by the amount of work we have to do in a particular case and what it will cost in terms of labour, time, and office resources to do that work. It's not a scientific formula, but it's close.
It's a mistake to think that the most expensive lawyer is the best. This might sometimes be true, but it is equally as often false. Price should only inform your decision about what lawyer to hire insofar as it relates to what you can afford. Beyond that, you should not draw conclusions based on dollars alone.
A short while ago, I dealt with a client who had a particularly complex case. Throughout the different steps involved in the case, this client insinuated to me repeatedly that they might be better off with an older lawyer. Honestly, I was offended. I was working hard on the case, and it was well within my wheelhouse to deal with the issues that arose. There have been countless other times that clients and potential clients have suggested that I am too young to handle their cases.
Age and experience are two different things. Personally, I believe that my track record of successes in Immediate Roadside Prohibition and DUI Impaired Driving cases speaks far more about my ability to handle complex cases than my age does. Experience comes from doing something, learning what is necessary, and doing it over and over again. There are many older lawyers who do not have the degree of experience I do in IRPs, just as I do not have the experience they do in other types of cases.
When you are choosing a lawyer, you should look for someone who is experienced in the area you need. Look for a proven record of success, and a reputation for winning or arguing new angles and avenues of defence. Do not be afraid to ask potential lawyers questions about the area of law you are dealing with to see how they answer. A lawyer with the right amount of experience for you will be able to answer you questions clearly and succinctly.
At the end of the day, you want to be comfortable with the lawyer you have. When you speak with them on the phone or in their office initially, you want someone you feel you can trust. You want someone who puts your mind at ease and makes you feel as though your case is something they can handle. This isn't to say you should want to be your lawyer's friend. Trust me, you do not want to have your friend be your lawyer or your lawyer be your friend. But your lawyer should make you feel comfortable with your decision to hire them.
Your lawyer is going to be the person who will be arguing your case in court, and making sure your version of events is properly heard. You need to be able to trust that they will do that for you. There is a lot to be said for someone who just makes you feel comfortable with the process. Trust your brain and trust your gut and you will find the right lawyer for your criminal case.
A lot of people that initially call my office aren't sure how to go about defending their Immediate Roadside Prohibition. They don't know what it takes to defend an IRP. As with any legal work, most clients whose cases I successfully have defended are unaware of all that has gone into their defence.
Simply put, defending an Immediate Roadside Prohibition isn't just about presenting my client's version of events and hoping the adjudicator makes the right decision. There is so much more that goes into defending an IRP.
Knowing the Law
A huge aspect of defending clients who are facing long driving prohibitions comes down to knowing the law. This is why people hire lawyers in the first place -- because they want someone who has extensive experience in a particular area and is best equipped to handle their case. When I defend clients facing Immediate Roadside Prohibitions, in every single case, I don't just present their version of events. My submissions contain a comprehensive breakdown of all the applicable case law, and how it relates to their cases.
Part of knowing the law is knowing the cases that work for and against my clients. Just because a person lost their IRP appeal in BC Supreme Court, doesn't mean that the decision should be disregarded. I have attributed a great deal of my success to the fact that I am able to glean the legal principles from the cases, and apply them even when the outcome has not been favourable.
One of the reasons I know the law is because I have been fighting these cases not just before the tribunal, but also in BC Supreme Court. Some of my successful decisions have resulted a complete change in practice and procedure at RoadSafetyBC.
Knowing the Machinery
One benefit that I have, that my clients often do not, is that I know the machinery. Not only have I operated and used an Alco-Sensor IV DWF on numerous occasions, but I have also read the manufacturer's manual, the RCMP manual, and the calibration manuals. I have calibrated and checked the calibration of these devices using both types of alcohol standard. I have an Alco-Sensor IV and an Alco-Sensor FST in my office. I've even been certified in the calibration and operation of the Alco-Sensor FST by the manufacturer.
Because I have access to the equipment and the information about the equipment, I am able to discern easily from police records whether the breathalyzers were properly operated or functioning properly at the time of the test. There are so many nuances in the operation and maintenance of these devices that can be overlooked by people without a trained eye. Knowing the breathalyzer is a significant contributing factor to my successes in IRP DUI cases.
Never Giving Up
In truth, this is probably as much a personality flaw as it is a benefit to my clients. When something matters to me, I will fight to the bitter end. When it comes to defending Immediate Roadside Prohibitions, I never give up. Anytime there is a change in the law that benefits my clients, I will spend evenings and weekends in the office, pulling files, contacting clients, and making supplemental submissions to the RoadSafetyBC tribunal or the Attorney General. It is not uncommon for me to fax submissions to the Superintendent of Motor Vehicles over the weekend, until their fax machine runs out of memory and paper.
If you receive an Immediate Roadside Prohibition, you need a lawyer who knows the law, knows the machinery, and never gives up. I cannot promise that I will win your case, but I can promise that I am all those things.
Many people find the information about the Driver Risk Premium and the Driver Penalty Point Premium confusing and difficult. In the third part of my series on the consequences of a traffic ticket in British Columbia, I am going to try to add some clarity to this type of consequence to a traffic ticket. Part one is available here. Part two can be read here.
ICBC can and will withhold your renewal of your driver's license, or reinstatement of a suspended license until these amounts are fully paid if they are owed to ICBC.
Driver Penalty Point Premium
The Driver Penalty Point Premium is based on the number of "points" you have on your driving record. Different traffic offences have different point levels, and the premium is based on the number of points you accumulate in a one-year period. If in a one-year period you receive three or fewer points, then you will not have to pay the premium. For example, if you receive a regular speeding ticket you will be given three points. You will not have to pay the premium. However, if you get a regular speeding ticket and a ticket for disobeying a traffic sign, you will accumulate five points. You will be required to pay the premium.
The amount of the premium is based on the number of points you have. For four points, it is $175. By six points, it jumps to $300. The premium goes as high as $24,000, if you get 50 points in a one-year period. You'd have to be pretty committed to poor driving to achieve that, so don't stress that this will happen to you. You can see a chart that calculates the amount on ICBC's website.
Points are associated generally with driving behaviour that creates a risk to the public. The number of points is generally linked to the type of behaviour. A chart setting out the point level for various offences can be found here.
The time period in which ICBC will consider points accumulated is five months before your birthday. I was born in May, so ICBC will look at points accumulated on my driving record from January to December.
Driver Risk Premium
The Driver Risk Premium is assessed based on conduct that violates the Criminal Code, has a ten-point value under the Motor Vehicle Act or results in a roadside suspension. Two roadside suspensions are necessary before the Premium is triggered. You will also receive a Driver Risk Premium if you are issued an excessive speeding ticket.
Driver Risk Premiums are calculated on your birthday every year, over a three year period. A review of your past three years of driving will be done to determine whether you are required to pay this premium. The table located here outlines the premium values. As you can see, the amounts add up quickly, and escalate rapidly.
If you are assessed a Driver Penalty Point Premium and a Driver Risk Premium, you will only have to pay one of the two. You pay whichever is higher. So, for example, excessive speeding is worth 3 points. If you receive an excessive speeding ticket and a ticket for disobeying a yellow light, which has two points, you'll have five points. But the Driver Risk Premium is higher than the penalty point premium, so you'll pay that. This can come back to haunt you -- the Driver Risk Premium is over three years, so you can end up paying penalty point premiums one year, and the Driver Risk Premium the following two years.
One example of this is if you are convicted of Driving While Prohibited under the Motor Vehicle Act, you'll receive 10 points. You will then pay the Driver Penalty Point Premium for those ten points, followed by the Driver Risk Premium the following two years.
Can I get the Driver Risk Premium or the Driver Penalty Point Premium Reduced?
You cannot get the Driver Risk Premium reduced.
However, you can apply for a reduction in the Driver Penalty Point Premium. In order to have it eliminated completely, you must surrender your license for one year from your birthday. This means no driving for one year. Alternatively, it can be reduced if you voluntarily quit driving for at least 30 days. You can voluntarily surrender your license to ICBC at any point to seek a reduction. After 30 days, you can call ICBC and find out what your new amount owing will be.
If you are given a driving prohibition, you can also apply for a reduction of the amount owing. You will need to be suspended from driving for at least 60 days, pay the reinstatement fees, and reinstate your license. In all likelihood the $250 reinstatement fee and $31 short term license administration fee will outweigh any benefit to you unless your Driver Penalty Point Premium is very high.
Finally, if you've been licensed in another province for at least 30 days, living outside Canada, incarcerated, or medically unable to drive for at least 30 days, you can apply for a reduction. You will need documentation to prove to ICBC that you have met one of these exemptions.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.