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:
- A Mandatory Alcohol Screening Demand (MAS), and
- 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: