If you are reading this article, chances are that you or someone you know has received a Notice of Administrative Penalty (“NAP”) for an Immediate Roadside Sanction (“IRS”). Your vehicle has been impounded, your licence has been suspended, and you only have SEVEN (7) DAYS to file a review on the SafeRoads Alberta portal.
You have been through a lot, but this is just the beginning. Now you are scrambling to determine if your IRS is worth fighting, and what defences may be available to you. If we are describing your situation, this article is meant for you!
The good news is that there are many defences available to fight an IRS.
The defences applicable to your case will depend on the specific facts and circumstances which led to the issuance of the NAP. Having successfully defended hundreds of these cases, we have a strong idea of what defences are likely to result in the cancellation of the driving suspension.
Here are the top five defences we have identified to date.
1. Invalidity of the Notice of Administrative Penalty
The first issue an Adjudicator will need to determine in a Review is to ascertain if in fact a valid NAP was served on you according to the legislative requirements.
The rationale for this is that when you request an IRS Review, legally, you are disputing the NAP that was issued to you by police.
Section 28 of the Provincial Administrative Penalties Act permits an NAP to be considered valid only if it contains the following information:
- You have been identified clearly;
- The right contravention has been specified;
- The date of occurrence is correct; and
- The place (or near) which the contravention occurred is specified.
Any inconsistency and uncertainty in the above information prevent you from properly defending yourself. It would be manifestly unfair for the Adjudicator to uphold a NAP that is statutorily invalid.
2. No Proper Disclosure
When you request a Review of a NAP, the Director of SafeRoads Alberta is required to provide relevant records relating to the circumstances of the issuance of the NAP.
Section 2 of the Saferoads Alberta Regulation stipulates the list of records that the Director MUST provide without exception, and includes the following:
- A copy of the NAP;
- The report of the officer who issued the NAP (can include police notes or a typed report);
- Calibration and maintenance records of the device or instrument used to test your breath, urine or blood sample; and
- Any other relevant records.
It is vital to note that the failure to provide such records is an unequivocal ground for the cancellation of the NAP.
Most NAP’s are issued to individuals who blow over on a roadside Approved Screening Device (“ASD”), so let us use that as an example. If you blew into such a device, but the ASD calibration and maintenance records were not provided, your suspension will be cancelled once we point this out. Sometimes it is just that simple.
3. No Roadside Appeal or Second Test
The legislative purpose of a roadside appeal is to provide drivers with the option to invoke an early appeal process to an existing NAP while at the roadside. This process is intended to safeguard the integrity of the IRS regime. That is, you can appeal your NAP at the roadside and voluntarily provide a breath sample into a different ASD. This right is available to you even if the NAP was issued without a first breath test.
While it is voluntary for you to provide another breath sample, it is mandatory for police to advise you of the existence of that right.
A failure to inform of the right to a voluntary second test is grounds for cancellation, as is the failure to meaningfully administer the second test.
The Saferoads Alberta Regulation legislation intentionally codified this provision to ensure that if there is any error arising from the first ASD breath result (like a high reading due to mouth alcohol), a second test on a different ASD could rectify that error.
Adjudicators have been assessing the following factors when deciding on the right to a roadside appeal:
- Did the officer have a mistaken belief that the roadside appeal was not available?
- Did the officer advise the Recipient of the right to a roadside appeal in writing, and was the Recipient aware of the right via the NAP or tear-off sheet?
- Did the officer obscure or undermine the right to a roadside appeal?
There is also a procedural aspect of the right to a roadside appeal.
Not only do the police have to tell you that you can provide a second voluntary sample, but they also must give you an opportunity to do so. If they fail to give you that opportunity after you request it, this alone justifies the cancellation of the NAP.
After the Saferoads Alberta Regulation was introduced, it was quickly amended to remove the right of a roadside appeal when a driver “refuses” or “fails to provide” a roadside sample. If you have received an IRS for refusal, please contact one of our lawyers to explore other avenues to challenge and win your case.
4. Insufficient Evidence to Establish Impairment
If you received an NAP for impaired driving, there must be enough evidence provided to demonstrate your impairment. It is important to understand that an NAP issued for impairment is different than an NAP issued for blowing “over 80” on an ASD.
Evidence to ascertain impairment is typically accomplished through the officer’s notes or report provided. Often, they lack detail and are insufficient to establish impairment.
The officer’s observations may include your driving pattern or demeanor during your interaction with them. Signs of impairment could include:
- Slurred speech;
- Poor balance;
- Red, glassy or glossy eyes;
- Flushed face;
- Poor hand-eye coordination; or
- Any other signs of impairment by alcohol and/or drug.
The onus to report signs of impairment is on the police. Failure to do so should lead the Adjudicator to conclude that there is insufficient evidence to justify a suspension for impaired driving.
In some cases, police will cite “impairment” in addition to “over 80” grounds as standard practice when your breath test results are over the legal limit. An effective challenge to these results could lead to the NAP being cancelled on both “over 80” and impaired driving grounds.
5. Mouth Alcohol in Relation to ASD Results
In some cases, it may be possible to argue that mouth alcohol resulted in a “fail” reading on the roadside breathalyzer. This is not an easy ground to argue as you must establish that mouth alcohol was a factor, but it is possible.
To establish this ground, you must provide evidence outlining:
- The volume of alcohol consumption;
- Time of consumption; and
- Accompanying circumstances, such as recently exiting the bar or having open alcohol in your vehicle.
This argument is possible because materials available to the Adjudicator establish clear guidelines for the proper administration of a breath test.
Expert opinion evidence set out in M-2 Mouth Alcohol (Exhibit D of E1 Affidavit of Kerry Lynne Blake, provided in the SafeRoads Alberta Technical Materials Library (“TML”)) states:
Mouth alcohol is the alcohol that remains in the mouth after consuming an alcohol-containing substance. Mouth alcohol may contribute to a higher test result because the breath testing equipment is measuring the residual alcohol in the mouth rather than the alcohol coming from deep within the lungs.
This document also explains:
Alcohol dissipates rapidly from the breath and in most cases, the mouth alcohol effect disappears within 5 to 10 minutes. A 15-minute deprivation period is more than sufficient to ensure that there will be no alcohol effect.
In instances where you provide this information to the officer regarding your recent consumption, it becomes important for us to analyze the evidence to see what the officer did with that information.
Officers are trained to wait a particular period of time when they suspect recent consumption. As stated in their training materials:
A test on a subject shall not be conducted until 15 minutes after the time the officer believes alcohol has last been consumed. This is to ensure the elimination of any possible ‘mouth alcohol’ effects.
If the police do not delay the breath test upon learning about the possibility of mouth alcohol interference, the breath results may not be reliable.
We still need to analyze a multitude of aspects in the investigation to successfully argue this ground. The important thing is that it is possible to win on this ground, even if the deck seems stacked against you.
This article has provided a brief overview of the top 5 IRS defences, but the list is not exhaustive. New defences will continue to be developed over time, and we will continue writing about them.
Our team has argued many unconventional defences and recorded success. Every case is unique, and one misstep by police can get you your licence back. Sometimes the difference between winning or losing an IRS review is having the right lawyer on the case.
Please remember, you only have 7 days to appeal your IRS.
Although it is too late to change what happened during the investigation, who you choose to help get your licence back is still in your control. The sooner you contact us, the sooner we can help you get your life back.