What is an Immediate Roadside Sanction and what can I do about it?

1. The Law Behind the Immediate Roadside Sanction Program

In December 2020, the Alberta Government enacted the Provincial Administrative Penalties Act and the SafeRoads Alberta Regulation. Together with the amended Traffic Safety Act, these legislative instruments created the Immediate Roadside Sanction (“IRS”) program.

The IRS program gave police officers a new way to deal with impaired drivers (commonly understood as “driving under the influence” or DUI). Rather than criminally charging an impaired driver and transporting them to the nearest police detachment for processing, an officer can now issue what is called an IRS: Fail. The IRS: Fail can be given to the impaired driver on the roadside and the associated penalties take immediate effect. Hence, the name: immediate roadside sanction.

The IRS program quickly became the preferred method for police officers to deal with impaired drivers although police officers will, on rare occasion, issue both an IRS: Fail and criminally charge a driver.

However, before an officer can issue an IRS: Fail, the officer must have grounds to believe that the driver is impaired. Typically, this is achieved through the use of a breathalyzer. Due to recent amendments to the law governing breathalyzers, police officers can now more freely administer breathalyzer tests to drivers. Typically, the issuance of an IRS: Fail will only follow if one of the following occurs: (1) the driver fails the breathalyzer test (i.e., they 'blew over the legal limit'), (2) the driver refuses to participate in the breathalyzer test, or (3) the driver repeatedly fails without lawful excuse to provide a sufficient breath sample for use with the breathalyzer. Additionally, police officers can issue an IRS: Fail for drivers impaired by drugs through other approved tests.

Importantly, an IRS: Fail is not a criminal charge and will not appear on a criminal record (although it will appear on your driving record). An IRS: Fail can also never involve imprisonment. Consequently, it is considered to be an administrative program.

This distinction is essential since the Canadian Charter of Rights and Freedom provides important protections to individuals who are criminally charged. Under the IRS program, these protections are not readily available to drivers. For example, under the IRS program, a driver does not have a right to a trial in court and the penalties take immediate effect. Additionally, police officers regularly refuse to provide drivers with an opportunity to contact a lawyer, despite section 10(b) of the Charter explicitly stating that “Everyone has the right on arrest or detention… to retain and instruct counsel without delay and to be informed of that right.”

Since the IRS program is young, we expect that the program will see revisions as lawyers challenge the program’s constitutionality in court. In the meantime, drivers should be aware that they will not have the same Charter protections under the IRS program as they do would if they were criminally charged.

2. The Penalties of an Immediate Roadside Sanction

The penalties you receive from an IRS: Fail will depend on whether it is your first, second, or third contravention.

*costs are subject to change and reflect the cost at the time of writing only.

The 90 day driving prohibition offers no exception and takes immediate effect. If you’ve been given an IRS: Fail, expect to not drive for the foreseeable future. The best chance you have of regaining your licence is challenging your IRS: Fail with an adjudicator (see below). After the 90 day absolute driving prohibition, the licence suspension with eligibility for the Ignition Interlock Program follows. To be eligible, you must have completed the mandatory course or program associated with the IRS: Fail (if any).

The Ignition Interlock Program allows you to drive a vehicle despite your licence suspension through the installation of an ignition interlock device (i.e., a blow-box). For individuals subject to their third IRS: Fail, the Ignition Interlock Program is a mandatory condition for driving for the rest of their lifes.

Moreover, there are also expenses associated with receiving an IRS: Fail. The total cost of these penalties, even for the first IRS: Fail, easily exceeds $3,000. Drivers should also be aware that their IRS: Fail will be reported on their driver’s abstract and impact their insurance rates.

Importantly, the IRS: Fail program offers no flexibility for the penalties given to the driver, meaning it is not possible to negotiate the penalties imposed on the driver. These penalties apply immediately and cannot be reduced, no matter how sympathetic one’s circumstances are.

3. The options for responding to an IRS: Fail

The Government of Alberta built into the IRS program a procedure to challenge the issuance of an IRS: Fail. Recipients of an IRS: Fail will undoubtedly be told that they have 7 days to request an appeal or review of their IRS: Fail (although, it is not unheard of that police officers will forget or omit to tell a driver of this). The administrative body responsible for reviewing IRS: Fails is SafeRoads Alberta.

When issued an IRS: Fail, the recipient will be given a Notice of Administrative Penalty which includes the necessary information for signing on to the SafeRoads Alberta Portal. This includes the recipient’s last name, date of birth, contravention number, and occurrence time. When logging in to the portal, the recipient will first see the information and records that support the issuance of the IRS: Fail. The portal also provides an option to pay their fine and the option to request a review of their IRS: Fail.

When requesting a review, the recipient must pay $130.00 and schedule the half-hour, virtual review in the following weeks. The review will consist only of the recipient, their lawyer (if any), and an adjudicator. The police officer(s) responsible for issuing the IRS: Fail are not involved in the review. Importantly, the recipient is responsible for convincing the adjudicator that the IRS: Fail must be cancelled.

If successful on review, the recipient’s IRS: Fail and associated penalties will be cancelled. The adjudicator will provide a written decision outlining their reason for cancelling the IRS: Fail. Although the decision will typically be provided at the end of the month-long vehicle seizure, the recipient will be able to retrieve their vehicle and regain their driver’s licence the following day. The recipient will also no longer be liable for the fine and surcharge or for participating in the interlock program.

If the review is unsuccessful, the recipient’s IRS: Fail will not be cancelled and the recipient will continue to be subject to the associated penalties. The recipient will have a right to a judicial review of the adjudicator’s decision but this is a lengthier and costlier process that will not be discussed in this article.

4. Retaining a Lawyer for the IRS: Fail Review

It is not necessary to retain a lawyer for an IRS: Fail Review. However, the grounds for cancelling the IRS: Fail are technical and set out in the SafeRoads Regulation and the Provincial Administrative Penalties Act. In rare circumstances, egregious police conduct can also be grounds for cancelling the IRS: Fail. Criminal defence lawyers have the skills and knowledge necessary to determine what grounds of review are available to a recipient. A good lawyer will also be able to provide succinct and persuasive submissions at the review in support of cancelling the IRS: Fail.

At Muenz Criminal Law, we go above and beyond. We will investigate and critically examine the information and records provided in support of the issuance of an IRS: Fail. We also take the time to learn from our clients what really happened when they received their IRS: Fail. We subsequently provide clients with our legal opinion and discuss their chances of success at the review. More importantly, we advocate for our clients at their review and will provide the adjudicator with persuasive legal written submissions and sworn affidavits beforehand.

Contact us to learn more about the legal representation we provide and how we can help you.

Written by Thomas Scholten