How To Beat An Alberta Immediate Roadside Sanction (IRS)

Structuring Your IRS Defence

If you are reading this article, you have likely been issued a Notice of Administrative Penalty (NAP) as part of an Immediate Roadside Sanction (IRS). This legislation is new, and aims to penalize impaired drivers. The sanctions are covered in the following provisions of Alberta’s Traffic Safety Act (TSA):

• IRS: 24-HOUR (88, TSA)
• IRS Zero: Novice (88.01, TSA)
• IRS Zero: Commercial (88.02, TSA)
• IRS: WARN (88.03, TSA)
• IRS: FAIL (88.1, TSA)

The police in Alberta are tasked with enforcing these new laws under very prescribed circumstances. It’s not difficult for officers to overstep their role and exercise power they do not have. That is where our experienced DUI lawyers can help. With ample hands-on experience, we can help you mount a solid defence for your IRS Review.

It’s important to note that the onus is on you to prove the grounds to have your IRS cancelled. However, just because it’s up to you doesn’t mean there aren’t a myriad of ways to do so. Our team of DUI lawyers will help you navigate this process.

One of the first things we’ll consider is whether the police did everything right. If they made any mistakes along the way, from the time they started the investigation, to the moment they issued your penalty, you may be entitled to a cancellation of your NAP.

As with most DUI’s, IRS defences can be grouped into categories. including:

• Procedural missteps,
• Underlying Charter violations depriving you of procedural fairness.

Below is a list of the most common statutory IRS defences, many of which have been successfully used by our lawyers. This list is not exhaustive but does shed light on some possible ways to successfully win your impending IRS Review.

Don’t forget, you only have 7 days to apply for an IRS Review, so it’s important to move quickly!

1. Failure to properly identify the driver, time of driving, or operation of motor vehicle

Unless the police found you in the driver’s seat, it may be difficult to prove that you were actually the operator of the motor vehicle. This situation most often occurs when there is a collision, or when police receive a report of an impaired driver. If the police do not locate you in the vehicle when they arrive, they may be unable to prove who drove.

Section 4 of the SafeRoads Alberta Regulation lists this as the first ground to cancel a NAP. The police must, before initiating an IRS investigation, make sure that you were driving or were in care or control of the vehicle.

The TSA defines the words “driver” and “driving” as follows:

Therefore, to challenge your NAP on this ground, you must establish on a balance of probabilities that you did not drive or have care or control of the motor vehicle.

The Supreme Court of Canada defines “care or control” as:

• An intentional course of conduct associated with a motor vehicle,
• By a person whose ability to drive is impaired over the legal limit,
• In circumstances that create a realistic risk of danger to people or property. 

The Supreme Court also sets out an analytical framework to determine whether you had care or control:

• You are presumed to be in care or control if you are in the driver’s seat,
• You may rebut this presumption by showing that you had no intention of setting the vehicle in motion,
• If you rebut the presumption, you may still have de facto care or control where there was a “realistic risk of danger” to people or property.

Our experienced DUI lawyers have won many cases on ‘care or control’ issues. Our team will examine the circumstances around your penalty, to determine whether you should pursue this line of argument.

2. Failure to identify time of consumption

Time is an important factor when it comes to rebutting your IRS penalty. It is your blood alcohol/drug concentration at the time of driving that matters. Below are some of the instances mentioned in the SafeRoads Regulation where a specific IRS penalty may be challenged:

• Where you were issued an ‘IRS ZERO: Novice’ or ‘Commercial’, without having any alcohol or drugs in your system at the time of driving;
• Where you were issued an ‘IRS: WARN’ without having a blood alcohol concentration in the ‘warn’ range (50 ml of alcohol in 100 ml of blood) at the time of driving; or
• Where you were issued an ‘IRS: FAIL’ without having a blood alcohol/drug concentration that exceeds the legal limit.

For an ‘IRS: FAIL,’ if your blood alcohol/drug concentration did exceed the legal limit, the adjudicator will consider whether:

• You had a blood alcohol/drug concentration equal to or exceeding the Criminal Code standards within 2 hours of operating your motor vehicle;
• You consumed alcohol or drugs after ceasing to operate your vehicle; or
• You had any reasonable expectation that you would be required to provide a sample of a bodily substance.

The time of consumption is also important from a technical standpoint. The Approved Screening Device (ASD) manual clearly states, “a test is taken immediately unless the officer believes that the subject has recently consumed alcohol or tobacco.” If you have recently consumed alcohol, the police must wait 15 minutes before taking your breath sample. Similarly, if you have recently smoked a cigarette, police must wait 5 minutes before taking your breath sample. If these guidelines are not followed properly, the breath test may become unreliable, and the validity of the IRS penalty becomes questionable.

3. Failure to make the breath demand or take the breath test properly

In this part of the investigation, police often fail to follow their training and guidelines, and thereby fail to gather breath samples properly. Under the IRS legislation, police can use powers granted under section 320.27 and 320.28 of the Criminal Code of Canada to gather breath samples.

There are two types of demands:

1. A Mandatory Alcohol Screening Demand (MAS), and
2. A screening demand based on a “reasonable suspicion” that the driver has alcohol or drugs in their body.

The MAS demand is always a demand to provide a breath sample into a roadside screening device. The Reasonable Suspicion demand, however, can include physical coordination tests or gathering of bodily substances. Most commonly, the Reasonable Suspicion demand is for breath samples.

Both types of demands are covered in the following Criminal Code provisions:

• S. 320.28(1): Reasonable Suspicion Alcohol Screening Demand, and
• S. 320.28(2): Mandatory Alcohol Screening Demand.

When conducting a MAS demand, the police are not required to have any indication that you were drinking.

There are still pending constitutional challenges to the lawfulness of this procedure, but there are also many conventional arguments, such as:

• Police did not have the Approved Screening Device (ASD) with them when the breath demand was made;
• Police did not explain the breath demand;
• Police did not translate the breath demand (if there was a language barrier);
• Police failed to ensure the ASD was calibrated properly. Section 4 of the SafeRoads Regulation explicitly mentions that the NAP will be cancelled if the equipment used to test you,
  • was not maintained annually, or
  • was used outside of its calibration period;
• Police officer who conducted the breath test was not trained to operate an ASD;
• Police failed to ensure there was no mouth alcohol that may contaminate the breath sample;
• Police failed to ensure there were no foreign substances in the mouth prior to the breath test.

If you refuse to comply with either demand, section 4(i) of the SafeRoads Alberta Regulation lists grounds to have your ‘IRS: FAIL’ result cancelled. It can be cancelled where you:

• Did not know a demand was made,
• Did not fail or refuse to comply with the demand, or
• Had a reasonable excuse for failing or refusing to comply with the demand.

For years, our lawyers have won cases resulting from officers’ technical and procedural lapses. When we look through your police disclosure, we will explore all these issues to determine whether your situation could warrant a successful IRS Review on these grounds.

4. Failure to inform you of your right to a roadside appeal in writing

The recent changes to the Traffic Safety Act have made it mandatory for the police to advise you of your right to voluntarily undergo the applicable subsequent test. This is called the “Roadside Appeal”. As its name suggests, you can appeal your first breath test at the roadside by conducting a second test to confirm your blood drug/alcohol concentration.

In every case, the police must provide you with a document that clearly states in big, bold, capital red letters that you have the right to request a second test as follows:

YOU HAVE THE RIGHT TO A SECOND TEST TO CONFIRM YOUR BLOOD DRUG/ALCOHOL CONCENTRATION

Beneath this advisory there is a “Right to a Second Test” section that contains two statements: “Driver provided with information on the right to a second test” and “Driver requested second test.” The issuing officer then must select “yes” or “no” for each statement. In every case, the onus is on the police to:

1. Make you aware of your right to a second test; and,
2. Provide information regarding that right to a second test in writing.

The IRS legislation expressly confirms the importance of providing the information about the roadside appeal in writing:

In a nutshell, notifying you of the test and providing it in writing are both legislative requirements that the police must fulfill.

Beyond simply providing this information in writing, the police also need to ensure that you understand what it means. For example, if there is a language barrier between you and the police, then there may be lack of understanding of the right to roadside appeal.

5. Failure to provide an opportunity for the second test

If you immediately request the second test upon being advised of a roadside appeal in writing, then the police must provide you with that opportunity. The purpose of the second test is to confirm the drug/alcohol concentration in your blood. The outcome of the second test is important, and can significantly affect the end result. For example,

• If you were given an ‘IRS ZERO: Novice’ after the first test, but there was no alcohol/drug detected in your body after the second test, your NAP will be cancelled right away by the police;

• If you were given an ‘IRS: FAIL’ after the first test, but only blew a caution on the second test, the NAP will be reduced in accordance with section 88.11(6) of the TSA.

This demonstrates how important the right to a roadside appeal can be. Once you request a second test, failure to provide one immediately will become a ground for cancellation of your NAP. You can find that expressly mentioned in Section 4 of the SafeRoads Regulation:

Schedule a free consultation with us if you think you were denied an opportunity to a second test.

6. Failure to conduct the correct roadside appeal

If you choose to have a second test, you may be required to accompany the peace officer for that purpose. Section 88.11 (2) of the TSA lists the right procedure for the second test following the roadside appeal.

These procedures are nuanced and technical. Any failure by the police to follow the correct steps throughout the second test will give you a strong ground to defend yourself. Our lawyers will look at the specific details of your IRS to determine whether the proper procedures were followed.

7. Failure to use the lowest readings to determine the applicable IRS

If there were two or more readings obtained in your case, the police must use the lowest readings to issue your IRS. There can be several reasons why you may receive multiple different readings. Most commonly, this is because a roadside appeal was requested, and police conducted a second test.

The statutory requirements for this defence are:

• Your NAP was issued based on more than one test,
• The officer did not use your lowest reading, and
• The lowest reading does not support the issuance of NAP.

If these conditions are met, then the adjudicator will likely decide in your favor. To make sure that this ground applies to your case, you must Review the disclosure available on the SafeRoads portal. If this information is not readily available, carefully Reviewing the police notes and test results may be helpful to uncover secondary test results. Of course, this is definitely something our team of lawyers can help you with.

8. Failure to serve the notice of administrative penalty

According to the SafeRoads Alberta Regulation, one of the grounds to cancel a NAP is if the penalty was not properly served to you. As per section 6 of the TSA, the NAP could be served on you by:

• Personal service,
• Ordinary mail sent to your latest physical address, or by
• Electronic means sent to your latest email address.

Although, service by regular mail is permitted, time is critical for IRS cases. The seven-day window for filing a Review is a tight one, and includes weekends and holidays. Therefore, personal and timely service is of paramount importance. Most importantly, you would need the NAP details to login into the SafeRoads Alberta Portal and apply for Review. The portal access looks like this:

Serving you correctly also means getting your particulars, including your name, right on your NAP form. Section 3(i)(a) of the Provincial Administrative Penalties Regulation (PAPA), states the following:

However, Section 28(a) of PAPA also states that, the NAP is not invalid if the recipient is identified with “reasonable clarity”. What constitutes reasonable clarity will likely have to be assessed on a case by case basis. If you think your name or your particularly have been entered incorrectly, let us Review the matter with you to evaluate the strength of this error.

Where the NAP has been served to you properly with correct particulars, there are still ways to argue for a cancellation. For example, if you have received the NAP form from the police but are unable to login to the portal because of issues on SafeRoads’ end, your lawyer can write a letter to SafeRoads informing them of the problem. We have helped clients in similar situations and SafeRoads cancelled their NAP.

9. Failure to prove elements of IRS

There are various categories of IRS for which you can be served a NAP. For every category, there are specific prerequisites that must be satisfied by the police before issuing you the penalty.

PENALTY	STATUTORY CONDITIONS
IRS: 24-Hour	·         you have a medical or physical condition that affected your physical or mental ability; ·         your consumption of alcohol/drugs affected your physical or mental ability;
IRS ZERO: Novice	·         you were a novice driver at the time of driving;
IRS ZERO: Commercial	·         you were driving a commercial vehicle; ·         the vehicle was a commercial vehicle as per the statutory definition (please see below);
IRS: WARN	·         your BAC was equal to or exceeded the ‘warn’ range (50 milligrams of alcohol in 100 ml of blood) at the time of driving;
IRS: FAIL	·         your BAC was equal to or exceeded the ‘fail’ range (80 mg of alcohol in 100 ml of blood); ·         you consumed alcohol after ceasing to drive and you had no reasonable expectation of undergoing a breath or blood test.

If we are able to rebut any of the above necessary pre-conditions to a NAP, this may entitle you to an IRS cancellation.

10. Failure to provide complete records

Even if the police did everything right during the investigation, you may still win your Review if you can establish that the director failed to provide you with all the evidence to which you are entitled. This is not just your Charter right but a statutory right under section 2 of the SafeRoads Alberta Regulation.

If you think police gathered records that they failed to disclose to you, it is definitely worth investigating. The most common types of evidence that the police and SafeRoads fail to disclose include:

• Police notes,
• Police In-Car Digital Video,
• Police Body Worn Camera Video,
• Witness statements, and
• 911 audio calls.

The SafeRoads Regulation is silent on whether SafeRoads needs to disclose the audio/video footage of your interaction with the police. However, the legislation does require the authorities to provide you with the following:

• A copy of the Notice of Administrative Penalty (NAP).
• Maintenance records of the Roadside Screening Device, including:
  • date of last annual maintenance, and
  • date of last calibration of the device and its expiry date.

• Maintenance Records for the Approved Instrument, including:
  • a copy of the subject test record,
  • date of last annual maintenance,
  • the certificate of the analyst certifying the alcohol standard,
  • the alcohol standard change form,
  • if applicable, a certificate of qualified technician, and
  • if applicable, an operational check sheet.

• Maintenance records of approved drug screening equipment, including:
  • date of last annual maintenance,
  • results of last calibration and its expiry,
  • any print-out relating to the sample provided by you, and
  • date of expiry of any test kit, cassette or cartridge used to test you.
• If you were tested by an evaluating officer, then:
  • a copy of any evaluating sheet,
  • a copy of the officer’s narrative or opinion, and
  • a copy of your test results.
• Any other relevant records and representations deemed relevant and necessary by the director.

Our legal team will conduct an extensive examination of your case and determine if the disclosure provided by SafeRoads Alberta is enough for you to fight your IRS.

Why You Should Challenge Your IRS

If you don’t take your first IRS penalty seriously, you are guaranteed to face serious consequences on subsequent occurrences. For example, with an IRS: FAIL, the suspension period jumps significantly every time:

• First time: 15 months suspension
• Second time: 39 months suspension
• Third and subsequent times: lifetime suspension

It’s important to note that if you have had a licence suspension in the past, that may count toward your number of occurrences for IRS: WARN and IRS: FAIL.

Be mindful of the fact that these are very stringent sanctions that are imposed immediately. They differ from criminal charges as with IRS:

• You do not have a presumption of innocence,
• You do not have a right to trial,
• You do not have a right to consult a counsel during the investigation, and
• The officer cannot be cross-examined at a Review.

In a nutshell, the fairness ensured by the criminal justice system does not apply to the IRS adjudication process. Your defence lawyer, however, will help you navigate your Review and potentially obtain your licence back.

Let our legal team of DUI lawyers help you get your licence back. Because of the 7-day Review window, call or email us as soon as possible for your free consultation. We would be happy to go over your documents, your version of events, the Review process, the fee structure, and what we can do to help.