Important: The information here is to provide a very basic overview of what Immediate Roadside Sanctions are, focused on the IRS: fail type. If there is any inconsistency between the information here and what you see on your paperwork or what is referred to on any Alberta government website or SafeRoads Alberta website, please contact legal counsel who can advise you directly. If you do not contact counsel, you should rely upon whatever is stated on your paperwork or Alberta government or SafeRoads Alberta information.
This information is also not a substitute for advice from an actual lawyer. If you have received an Immediate Roadside Sanction, please feel free to contact Dushan, Tania, or Jordan of our office for a free initial consultation where we can discuss your case.
What are Immediate Roadside Sanctions?
Immediate Roadside Sanctions (IRS) are a series of penalties that peace officers can impose in driving cases where alcohol or drugs may be involved. They are programs that were created in the Traffic Safety Act of Alberta. There are currently five types:
- Immediate roadside sanction: 24-hour
- Immediate roadside sanction zero: novice
- Immediate roadside sanction zero: commercial
- Immediate roadside sanction: warn
- Immediate roadside sanction: fail
When an IRS is imposed, it will be set out in a Notice of Administrative Penalty (NAP), that is served directly upon the driver by the peace officer.
What is the IRS: fail program?
The IRS: fail program is one of the most common types of IRS that is used. It is one of the most likely penalties to be imposed in Alberta in conventional cases of impaired driving (or, as some know it, ‘DUI’, ‘driving under the influence’, ‘driving while impaired’, etc.), driving with a blood alcohol or drug concentration over a certain limit, or refusing/failing to comply with a demand for a sample. The IRS: fail penalties can be imposed by a peace officer when they have reasonable grounds to believe any of the following (subject to certain specific exceptions):
- that a driver operated a motor vehicle while the driver’s ability to operate the motor vehicle was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
- that a driver has within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood;
- that a driver has within 2 hours after ceasing to operate a motor vehicle a blood drug concentration that is equal to or exceeds any blood drug concentration for the drug that is prescribed by regulation under the Criminal Code (Canada);
- that a driver has within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation under the Criminal Code (Canada) for instances where alcohol and that drug are combined;
- that a driver, knowing that a demand has been made, failed or refused, without a reasonable excuse, to comply with a demand made on the driver under section 320.27 or 320.28 of the Criminal Code (Canada).
What are the penalties of IRS: fail?
The penalties depend on whether this is the individual’s first, second, or third (or more) contravention.
For a first contravention:
- The driver will be suspended:
- For 90 days, during which they cannot drive at all.
- After those 90 days, the driver is suspended for a further 1 year – the driver can only drive during this period if they receive approval for the IRS: fail Ignition Interlock Program and are driving with an ignition interlock device.
- The vehicle will be seized for 30 days (also, this usually results in impound fees).
- There will be a fine of $1000, plus a surcharge of 20% (i.e., a total of $1200).
- There is a requirement to complete the Planning Ahead course, and any other reinstatement conditions that may be imposed in relation to the driver.
For a second contravention:
- Suspension:
- Initial: 90 days
- Following that: 36 months (subject to interlock, as above)
- Vehicle seizure: 30 days
- Fine: $2000, plus surcharge of 20% (i.e., a total of $2400)
- Other: the IMPACT Program (and any other reinstatement conditions)
For a third (or more) contravention:
- Suspension:
- Initial: 90 days
- Following that: lifetime (subject to interlock, as above – under some circumstances, a person may be eligible for removal of the lifetime suspension and interlock requirement after 10 years)
- Vehicle seizure: 30 days
- Fine: $2000, plus surcharge of 20% (i.e., a total of $2400)
- Other: Other significant reinstatement conditions are more likely in this scenario.
How can a person challenge an IRS: fail?
There are three primary points at which an IRS: fail can usually be challenged: a roadside appeal, an IRS review, and a judicial review of an IRS review decision.
Roadside appeal
A roadside appeal is a process that occurs as a continuation of the same interaction with the peace officer that is issuing the IRS: fail. If a driver requests a roadside appeal, and if they are eligible for one (there are some scenarios where one may not be available), it is usually more or less immediate and will likely occur at the scene or at a nearby police detachment. It can take various forms, but generally involves some further type of test to confirm or contradict the peace officer’s belief that the driver committed a contravention.
For example, if the basis of the peace officer’s belief was that the driver provided a breath sample into an Approved Screening Device and the result was a ‘Fail’, one of the most common types of roadside appeals will be to provide another breath sample into a different Approved Screening Device. As mentioned though, roadside appeals can take other forms, and could sometimes involve being transported to a police detachment for some sort of further test(s).
If the result of the second test confirms the peace officer’s belief, then the Notice of Administrative Penalty that sets out the IRS: fail will be unchanged. On the other hand, if the second test does not meet the threshold for an IRS: fail, then it will be cancelled. It should be noted, however, that there are some circumstances where the peace officer may still be able to revert to a lower form of IRS penalties instead (for example, if the person initially blew a ‘Fail’ and in the second test they blow a ‘Warn’).
IRS Review
Where a driver is seeking to dispute their Notice of Administrative Penalty, they can initiate an IRS review. This can be done through the SafeRoads Alberta website (https://saferoads.alberta.ca/contraventions/search) or by going to a registry agent. There is a non-refundable fee of $150 (this does not include any other costs that may be involved, such as lawyer fees). A hearing will be scheduled before an adjudicator, who will decide whether to confirm or cancel the Notice of Administrative Penalty.
Whether a review is likely to succeed or not depends heavily on the particular facts of the case. The procedures and available arguments are often not straightforward. It is generally a good idea to speak to a lawyer about this, either before or after the review has been initiated (and well before any hearing).
If you are seeking to initiate a review, it is very important to apply within 7 days of receiving the Notice of Administrative Penalty. If you are past that deadline, there are some circumstances where an extension may be possible – however, they are not common and require a separate application (with its own fee), which can only be granted if certain criteria are met. You should therefore never rely on being able to get an extension and should instead make all efforts to meet the 7-day deadline.
Judicial Review
If an IRS review is unsuccessful, a person can seek judicial review of that decision. This involves an application to the Court of King’s Bench of Alberta. This must be filed and served on the Director of SafeRoads Alberta no later than 30 days from the IRS review’s decision date.
Judicial reviews are even more complex than IRS reviews, and so, as before, it would be best to speak to a lawyer further about how they work.
If a driver receives an IRS: fail, can they also be charged under the Criminal Code?
Yes. There are circumstances where a driver may receive both an IRS: fail and an actual Criminal Code charge (and potentially other provincial or federal offences, depending on the nature of what is alleged to have occurred).
The scenarios where both may occur cannot really be definitively listed, as they can vary significantly. However, there are certain situations which make the combination more likely. For example:
- if a person has a history of contraventions or criminal charges in relation to alcohol or drug-related driving;
- if injury or property damage was caused, such as in a collision;
- if it is alleged that a person engaged in additional offences as part of the incident, such as failing to remain at the scene of an accident, driving while disqualified, and so on.
The above list is not meant to be definitive, nor is it all-inclusive. For example, there are people who may fall into the above scenarios, but the peace officer may decide to only use an IRS: fail. Additionally, there are other possible scenarios where a peace officer may decide to impose both an IRS: fail and criminal charges. However, the situations above are probably some of the more common ones where the combination of IRS: fail and criminal charges may result.
If you do receive criminal charges, it is very important to speak to a lawyer (it is a good idea to speak to a lawyer even if you are faced with an IRS: fail without a criminal charge, but a criminal charge makes doing so especially important). The consequences of an IRS: fail are already significant, but the consequences of criminal charges can be much greater, particularly in the long-term.
If you wish to speak to a lawyer about your IRS: fail, impaired driving criminal charge, or any other criminal law concern please do not hesitate to contact us for a free consultation.