Immediate Roadside Sanction
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Definition of Charge / Similar and Accompanying Offences
To ensure greater road safety, the Government has created stricter measures to combat driving under the influence (DUI) of alcohol or drugs.
This is in line with Canada’s zero tolerance towards DUI and the danger it holds for road users, whether they are drivers, pedestrians, cyclists, or children.
The government has been rolling out its Immediate Roadside Sanctions program since the end of December 2020. In Alberta, it is known as SafeRoads Alberta.
If the police stop you for suspected impaired driving, they can slap you with a Notice of Administrative Penalty (NAP) which contains a specific penalty or “Immediate Roadside Sanction” (IRS).
This is an administrative penalty and process, in addition to the penalties available under the Criminal Code.
Impaired driving or driving with a blood alcohol count of 0.08%, though still illegal, isn’t prosecuted in the usual way. Instead, the police issue an Immediate Roadside Sanction.
According to Canada’s impaired driving laws, the prohibited blood alcohol concentration (BAC) is 80 milligrams or more of alcohol per 100 millilitres of blood.
It remains the same penalty system as before but with no court appearance or criminal record. Nevertheless, the penalty will still appear on your Driver’s Abstract and affect your insurance rates, for example.
However, the consequences of an IRS can be potentially devastating for you, especially when you’re dependent on your vehicle for business or transport. And who of us isn’t?
What an Immediate Roadside Sanction means
It’s an immediate, administrative roadside penalty when the police suspect you of driving under the influence of alcohol, drugs or both.
The Notice of Administrative Penalty (NAP) will describe the types of penalties you face and provide the reasons for the suspension.
The police have been given broad powers when they have “reasonable grounds” to believe that your impairment falls under one of the IRS categories (more about this later).
The penalties will go up if you receive similar notices and fines. It shows a pattern of driving behaviour on your side that holds potential danger for others on the road.
What negative repercussions can an IRS hold for you?
Suppose the police have stopped you on the road on suspicion of driving under the influence (or driving with more than 80 mg of alcohol in 100 ml of blood). Also, suppose you failed the breath test on an approved screening device.
In that case, the police can seize your driver’s license and your vehicle on the spot.
For example, under the so-called IRS: Fail, the cops can also issue you with a stiff fine payable immediately for a first offender.
But there is more…
- You are immediately suspended from driving for 90 days
- The vehicle is impounded for 30 days
- You are fined $ 1,000
- You may have to take part in alcohol/drug education programs
- You may need to participate in the Alberta Ignition Interlock Program for 12 months
An Ignition Interlock Device is a device fitted to your vehicle. A driver must blow into a mouthpiece to test their Breath Alcohol Concentration before they can start a car.
If the device detects breath alcohol greater than a level determined by the monitoring authority, it prevents the engine from being started. It can be pretty costly to have this device fitted to your car.
The IRS: Fail is a serious offence and could eventually result in a criminal charge when aggravating circumstances are present. These aggravating circumstances include whether:
- you have a previous conviction for impaired driving
- you caused injury to another road user
- there were children in the vehicle
As for impaired driving, note that illegal and legal drugs can cause impairment. The IRS: Fail, for example, refers to any substance that can cause impairment. So this includes prescription and over-the-counter medicines.
Admittedly, IRS: Fail carries the most severe penalties of all the Immediate Roadside Sanctions, and there are other lesser penalties. The IRS: Fail has several negative repercussions, so seeking legal advice can be a lifesaver.
Immediate Roadside Appeal
When issued with an IRS, you can ask for a second breath test on a different device to confirm your substance level.
If the outcome of your second test is less than the illegal alcohol or drug concentration, law enforcement will cancel your Notice of Administrative Penalty in the IRS: Fail program.
If the outcome of your second test is equal to or greater than the illegal alcohol or drug concentration, law enforcement will confirm your Notice of Administrative Penalty.
The police must follow specific procedures when administering the second test to you. A slip in this procedure could give you a solid reason to have your penalty set aside.
The Appeal Process in General
SafeRoads provides a right to appeal your IRS, but you must do so within seven days of the issue of the IRS, which doesn’t leave you much time. The seven days for filing a review include weekends and holidays.
You should act fast. If seven days have expired or you need help in any way, get legal advice right away. You have the right to appoint a legal representative to act on your behalf and are entitled to be treated fairly.
When you apply for a review, your Notice of Administrative Penalty (NAP) is not set aside. Your driver’s license suspension, vehicle seizure and penalties under the IRS program remain in effect during the review process.
This process is not a trial; there is no presumption of innocence. The burden (duty) of proof lies squarely on you to establish why the sanction should be overturned.
The detailed grounds to set aside a NAP for an IRS are dealt with below. An Adjudicator (person who decides on the merits of your review) will not listen to arguments that you are broke, need your car for work, or won’t be able to pay your hydro bill.
Application for a Review Process
The Application for a Review Process requires that you do the following:
- Visit the SafeRoads portal at www.saferoads.com and apply for a review within seven days of being issued with a NAP for an IRS. You can also apply at a registry agent, but you may have to pay additional service charges.
- Choose if you want a written or oral review. The advice I give my clients is to choose an oral assessment and do it in front of an adjudicator.
- Select a date and time for your review.
- Choose a preferred contact method and provide your correct contact information.
- Agree to the terms and conditions.
- Pay the non-refundable application fee of $150.
- Submit all your supporting documents through the SafeRoads portal at least two full calendar days before your scheduled review date. This is a strict requirement, and failure to comply will leave you without vital evidence.
Your hearing must be scheduled for 21 days after you receive your administrative penalty. You are entitled to receive the authorities’ documents about you and the circumstances of the alleged offence, but you must provide your arguments, evidence or defences to strengthen your case.
According to RoadSafe Alberta, your supporting documents may include the following:
- Completed Consent to Representation form.
- Your written submission (reasons why your penalty should be cancelled)) (1 file, max 40 pages, single-sided).
- Photographs (up to 20 files, max 5MB/file).
- Video or audio recordings (up to 4 files, max 2GB/file).
- Driver Abstract, which contains information from a person’s driving record like:
- current status of the driver’s license
- conviction information
- demerit points
- previous suspensions
At your Review
Your review must be heard within 21 days of filing the review application. If you have selected an oral assessment, you or your lawyer will receive the telephone number or video conference link to use at the scheduled review time.
Your review can take up to 30 minutes, but you will not receive a verbal decision at your oral evaluation.
For the penalty to be overturned, the adjudicator goes through all the information you have supplied to support your request.
The adjudicator also considers the technical stuff, the Traffic Safety Act, the Provincial Administrative Act and regulations.
SafeRoads Alberta will decide in writing to cancel or confirm your Notice of Administrative Penalty within 30 days from the date you first received the notice.
You will find the decision on the SafeRoads portal and will be notified by your preferred contact method when the decision is available.
If you supplied an address as your preferred method of contact in the first place, a copy of the decision would be mailed to you.
When you win your Appeal
If the adjudicator finds that your evidence is acceptable, the notice and penalty are cancelled, and you get your license back immediately. After you’ve done the necessary paperwork, arrangements are made to release your motor vehicle and repay any money owed.
Yes, there are other types of sanctions as well. We have discussed the severe penalty of IRS: Fail, but under the law, different penalties for different contraventions are mentioned. The types of infringements are contained in the Traffic Safety Act and are described in the following paragraphs.
Operating a motor vehicle
The legislation refers to situations where you “drive” or “operate a motor vehicle,” which is regarded as having “care and control “of a motor vehicle.
This is where the police suspect on reasonable grounds that you, as a motor vehicle driver, have a physical or mental condition and that your ability to drive has been affected by the use of drugs or alcohol.
What follows is an IRS: 24-Hour sanction. With immediate effect, you won’t be able to drive for 24 hours.
If the police suspect you are driving with any alcohol or drugs in your body and you have a learner’s license, they will issue an IRS: Novice.
- You won’t be able to drive for 30 days.
- Your vehicle is seized for seven days.
- You get a fine of $200 plus a victim fine surcharge.
- Other conditions can be added.
- Funds from victim fine surcharges are used to provide public safety programs, services and assistance to victims of crime.
If the police suspect you are driving with any drugs or alcohol in your body and you have a commercial license, they will issue you with an IRS: Commercial.
- You won’t be able to drive for three days if you are a first offender, 15 days (second offence), or 30 days (third or more offence).
- Your vehicle is seized.
- You get a fine of $300 plus a victim fine surcharge for a first offence, $600 plus a surcharge for a second offence and $1,200 for a third offence.
- Other conditions can be added.
If the police find that your blood tests show between 50 to 80 mg of alcohol in 100 ml of blood, they will give you an IRS: Warn.
- You are immediately suspended from driving for three days for a first offence,15 days for a second offence and 30 days if it’s your third offence.
- Your vehicle is impounded for three days for a first offence; seven days for a second or further offence.
- You are charged a $300 plus a victim fine surcharge. For a second offence, you get fined $600 plus the surcharge.
- Other conditions may be added.
IRS: Fail (referred to above)
The reasonable grounds for an IRS: Fail is as follows:
- You drove a motor vehicle while your ability was impaired by alcohol, drugs or a combination of the two.
- Within 2 hours after you stopped driving the motor vehicle, your blood alcohol was 0.08 % or more.
- Within 2 hours after you stopped driving, your blood drug concentration was equal to or exceeded the limit as prescribed by the Criminal Code regulation.
- Within 2 hours after you stopped driving, your blood and drug alcohol concentration exceeded the legal limit.
- “Knowing a demand had been made, you failed or refused, without a reasonable excuse, to comply with a demand made under the Criminal Code Canada.”
Here are the possible repercussions for the above:
- For a first offence, you cannot drive for 90 days; the vehicle is seized for 30 days; you get a fine of $1 000 plus a victim fine surcharge.
- There is a further driver’s license suspension for 12 months. During this period, you can submit to Alberta’s Ignition Interlock Program and drive a vehicle fitted with an interlock device. Otherwise, you remain suspended.
- You must also complete the governmental Planning Ahead course within 450 days from when the IRS: Fail was issued.
In the case of a second IRS: Fail contravention, your driver’s license is suspended for 90 days, where you can’t drive at all; a further driver’s licence suspension of 36 months is added, during which time you may participate in the Ignition Interlock Program.
If you choose not to do so, you remain suspended and cannot drive. The penalties, periods, and restrictions for all second and third offences simply escalate.
Criminal Code (Canada)
Remember that the sanctions discussed above are all provincial administrative sanctions.
If the police decide to add criminal charges in terms of the Criminal Code and you are found guilty, the Court will also impose additional penalties.
On the other hand, for the state to obtain a criminal conviction against you, law enforcement bears the burden of proof, and they must prove beyond a reasonable doubt (the standard of evidence in a criminal case) that you committed the offence.
As indicated, you will have a couple of defences at your disposal.
Grounds for Review
The grounds for review are set out in section 4 of the SafeRoads Alberta Regulations.
The various grounds for review correspond to the specific IRS, as mentioned in the previous paragraph. The defences deal to a large extent with police conduct which falls short and faulty instruments like a defective breathalyzer.
The driver’s evidence can, for example, show that the person was, in fact, not impaired at the time of driving or that the wrong person was identified.
There could be a glaring mistake in your NAP like the officer wrote down the incorrect date or contravention.
Maybe the evidence, as described in the police report, is insufficient to show impaired driving. Signs of impairment are slurred speech, disorientation, flushed face and red eyes.
If we refer to an IRS: 24, a good defense could be one or more of the following:
- That the recipient (driver) did not operate the motor vehicle.
- That a Notice of Administrative Penalty was not served on the person.
- The recipient did not have a medical or physical condition that affected their abilities.
In the case of an IRS: Novice, the following grounds of defence may apply:
- The novice did not operate the motor vehicle
- The person was not a novice driver as defined in the Act.
- The Notice of Administrative Penalty was not served on the novice.
- The police officer did not provide the person’s records on the Alberta SafeRoads website.
- The officer did not use the lowest reading of the test results.
- The approved drug or alcohol screening equipment or device
- had not been annually maintained or
- was outside of its calibration period (check or service for proper functioning)
- had not been annually maintained or
- The officer did not (in writing) advise the recipient of the right to an immediate roadside appeal, and the recipient was unaware of that right.
- The recipient requested an immediate roadside appeal, and the officer failed to provide it.
There are, in addition to the grounds already mentioned above, also the following defences provided in the Act, specifically for an IRS: Fail:
- The recipient did not, within 2 hours of ceasing to operate the vehicle, have the alleged amount of blood alcohol or drug in their blood.
- The recipient took in the alcohol or drug after he ceased operating the motor vehicle.
- The recipient had “no reasonable expectation” that they would be required to provide a blood alcohol sample.
The advantages of hiring a knowledgeable lawyer
When it comes to roadside sanctions, many things can go wrong. An experienced lawyer can assist you with a solid defence to spot any weaknesses in the police’s case or errors within your IRS.
Expert IRS lawyers can help you assert your rights to avoid the severe consequences that follow a driving under the influence charge. This is especially true if you have previous convictions.
Moreover, an impaired driving lawyer can do all the above paperwork for you, look at your documents and circumstances and give an opinion on your chances of success. This would certainly help take a load off your shoulders.
Process and Requirements for the Release of a Seized Motor Vehicle
If your car is seized, you’ll need to request a review by applying for its release. You then need to upload or supply additional information, which can be done by 11:59 on the day before the scheduled review.
If you’re the vehicle owner who did not drive it at the material time, you can apply to have it returned. You’ll need to provide one or more of the following documents:
- The commercial Driver Abstract for the driver dated not more than a year before - in the case where the vehicle is a commercial vehicle.
- A Sworn Affidavit describing the specific circumstances, including how you, as the owner, knew the driver (in the case where the vehicle was taken without permission).
- The police report – in cases where the vehicle was stolen.
- The rental agreement – where the vehicle is a rental vehicle.
All owners who want their vehicles back under these circumstances must provide the following proof:
- That before driving the motor vehicle, the person driving it showed the owner an operator’s license in the driver’s name, the right class, and it had not expired.
- The driver is not the registered owner of the seized vehicle, and
- The driver is not part of the same household as the registered owner of the impounded vehicle.
SafeRoads Alberta prescribes various document specifications regarding the readability, typing and format of the documents they require.
When an Immediate Roadside Penalty is issued to a person who is not disputing the penalty, they have the option to:
- Pay the fine (consider consulting with a lawyer instead).
- Request more time to pay. In this regard, note the following:
- You can do so through the SafeRoads portal before the due date.
- Your first request will immediately extend your payment date by 90 days.
- You are allowed a second request for more time, but this is the final allowance.
- You can arrange for partial payment of penalties.
- You can apply to change the date of a scheduled review.
- You can abandon a scheduled review.
- You can apply to convert an oral review to a written review.
Late Review Request (If you missed the 7-Day Application Deadline)
Only in exceptional circumstances will you be able to submit a request for a late review. You need to do so within 12 months from the date the IRS was issued to you.
Some or all of the following grounds may apply to you:
- If you were unaware of the notice of the penalty but took “prompt action”, to notify the Director (the head of the adjudicators and a government employee) as soon as you become aware of it.
- If you were physically or mentally incapacitated and couldn’t respond within seven days, but on regaining capacity, you took “prompt action” to notify the Director.
- If you experienced unforeseen and unavoidable events preventing you from responding within seven days, and you took “prompt action” to notify the Director.
Once again, you ask for a late review through the SafeRoads portal at www.saferoads.com, a registry agent or through your lawyer.
You need to do the following:
- Provide the reason for your request;
- Provide the documents that support your case; and
- Pay the application fee of $50.
In the case of a late review request, you must submit your supporting documents simultaneously with your request for a review. You can only add consent to the representation form in PDF format and your submission in PDF, Doc, or Docx - a maximum of 40 single-sided pages.
SafeRoads Alberta will decide on your late review request as soon as possible.
If your request is approved, you will have seven days from the decision date to apply for a review on payment of the $150.
Late Evidence Application
Occasionally, a late evidence application is possible. You would have to request a review to be held within the usual 21-day timeline, then abandon the review to seek a late review (as discussed in the previous paragraph) to introduce late evidence.
A late evidence application is specifically assessed under the prescribed exceptional circumstances in Sec 10(3)(b) of the Provincial Administrative Penalty Regulation.
But this does not guarantee that you’ll be granted a late review.
What if my request for a review is turned down?
If your application for a review of an IRS is unsuccessful, you can apply for a judicial review of the decision given by SafeRoads, Alberta. You apply with the Court of Queen’s Bench of Alberta.
You must obtain the legal services of an astute lawyer specialising in impaired driving without delay.
A qualified lawyer will consider your unique health issues and circumstances.
What are the Alcohol and Drug Programs?
Drivers may be subjected to remedial education courses as part of their Immediate Roadside Sanctions, for example:
- The Crossroads Course runs for a few hours and is aimed at preventing impaired driving.
- Planning Ahead is a single-day course about impaired driving laws, the effect of alcohol and drugs on the body etc.
- The Impact Program is a weekend residential course that teaches drivers to think about how alcohol and other substances affect their lives.
How much will hiring a lawyer for an IRS set me back?
As an experienced lawyer in this field, my fees are in two stages:
1. The initial review comes to $2,625, including GST. This is a detailed, comprehensive review.
If you abandon the review, I will return $1,000 plus GST to you.
2. If you decide to go ahead with the review, there is an additional fee of $1,625.
The total fee for the review, from start to finish, is $4,000.
What practical examples of “Operating a Motor Vehicle” are there?
“Operating a motor vehicle” is broader than you think and includes any act that could set the vehicle in motion.
The police may find an intoxicated person asleep behind the wheel of a vehicle, parked on the side of a public road with the key in the ignition and the engine on. This person may be found to have “operated” the vehicle.
Also, to operate a motor vehicle in terms of the law, the engine does not need to be running. If you are found in the driver’s seat, you are presumed to have the care and control of the motor vehicle.
A person can also be said to operate a stationary vehicle when he manipulates the gear shift so that it moves forward of its own weight.
What’s The 2-hour period in the IRS: Fail About?
In the interest of road safety for all, this wording was brought in to counter the so-called “intervening drinking” defense. Drivers often used to allege that after the accident, they drank alcohol to calm their nerves.
This defence made it difficult for law enforcement to determine the blood alcohol consumption of the wrongdoer at the time of driving.
What Laws apply to Immediate Roadside Sanctions?
The various laws that apply include:
- The Provincial Administrative Penalties Act
- The Provincial Administrative Penalties Regulations
- The SafeRoads Alberta Regulations
- The Vehicle Seizure and Removal Regulation
- The Traffic Safety Act
- Criminal Code
It’s clear that immediate roadside sanctions is a complex area of the law. Interpreting the laws, regulations and penalties in any given situation can be tricky and downright complex. Legal advice is always a great option if you find yourself in a pickle.
So, if you’re looking for a reputable lawyer who’s an expert in roadside sanctions, you’re in the right place. Contact me today, and I’ll give your matter the attention it deserves.