Notice of Administrative Penalty Dispute in Alberta
What is a Notice of Administrative Penalty?
On December 1, 2020, Alberta enacted new provincial laws for impaired drivers. The Provincial Administrative Penalties Act introduced a simplified process to administratively enforce contraventions and was made applicable to the Traffic Safety Act and its regulations.
Pursuant to the Traffic Safety Act, Notices of Administrative Penalty (NAP) can be issued for a variety of drug and alcohol-related driving infractions. The majority of persons accused of drunk driving are now subject to a NAP.
If an Immediate Roadside Sanction (IRS) is imposed, it will be set out in a NAP and served directly on the driver by the peace officer.
Examples of Immediate Roadside Sanctions (IRS)
- IRS 24-Hour: Imposed if a peace officer has reasonable grounds to suspect that a driver has consumed alcohol or drugs or has any medical condition and that it is affecting the driver’s physical or mental ability.
- IRS Novice: A novice driver (with a learner’s or probationary licence) is not permitted to have any amount of alcohol in their system.
- IRS Commercial: Like novice drivers, commercial drivers are not permitted to have any amount of alcohol in their system.
- IRS Warn: This sanction is imposed when a peace officer has reasonable grounds to believe that a driver has between 50-80 mg of alcohol in 100ml of blood.
- IRS Fail: This is imposed when a peace officer has reasonable grounds to believe that a driver operated a motor vehicle while their ability to do so was impaired to any degree by alcohol and/or a drug or failed or refused, without a reasonable excuse, to comply with a demand made under section 320.27 of 320.28 of the Criminal Code.
Defences
- The invalidity of the Notice of Administrative Penalty. An Adjudicator will need to determine in a Review if a valid NAP was served on you, according to the legislative requirements.
- 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.
- No Roadside Appeal or Second Test. You can appeal your NAP at the roadside and voluntarily provide a breath sample into a different ASD. 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.
- Insufficient Evidence to Establish Impairment. If you received an NAP for impaired driving, there must be enough evidence provided to demonstrate your impairment.
- 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 challenging grounds to argue.
Punishments
Penalties under the Provincial Administrative Penalties Act are the same as if you were found guilty in court, with the exception that you will not receive a criminal record for the offence. Penalties under this Act will appear on your driving record.
The penalties for a first-time offence of driving while under the influence are:
- Fines of $1,000 + $200 victim fine surcharge, for a total of $1,200, and
- Your licence will be suspended for 90 days during which you will not be able to drive at all. Followed by driving with an interlock device (an alcohol-detecting device) in your vehicle for an additional 12 months, and
- There will be an entry on your driving record for impaired driving, and
- Your vehicle will be seized and impounded for 30 days. You will also be responsible for paying the impound fees.
Defences
The Provincial Administrative Penalties Act outlines the appeal process of NAPs. The timeline in which to request a review (appeal) of your administrative penalty is brief. Your notice of appeal must be filed within seven days, with very few and rare exceptions (usually for medical reasons).
These administrative offences are challenged by way of written submissions, meaning an accused does not need to attend court.
The defences applicable will depend on the specific facts and circumstances which led to the issuance of the NAP.
Invalidity of the Notice of Administrative Penalty
The first issue an Adjudicator will need to determine in a Review is if a valid NAP was served on the accused, according to the legislative requirements.
Section 28 of the Provincial Administrative Penalties Act permits an NAP to be considered valid only if:
- 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.
No Proper Disclosure
When you request a review of an 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.
No Roadside Appeal or Second Test
An accused has the right to appeal their NAP at the roadside and voluntarily provide a breath sample into a different ASD. This right is available even if the NAP was issued without a first breath test. While it is voluntary 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.
Insufficient Evidence to Establish Impairment
If a NAP is issued for impaired driving, there must be enough evidence provided to demonstrate the impairment. Evidence of impairment typically include the officer’s notes or report provided. Sometimes they lack detail and are insufficient to establish impairment.
The officer’s observations may include the accused’s driving pattern or demeanour during their interaction.
Signs of impairment could include:
- Slurred speech;
- Poor balance;
- Red, glassy or glossy eyes;
- Flushed face;
- Disorientation;
- Confusion;
- 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.
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.
Penalties
Suspension: The suspension can vary depending on the type of IRS but may be anywhere from 24 hours to 90 days and a lifetime of driving with an alcohol-detecting device in your vehicle. A first-time IRS Fail has a suspension duration of 15 months. After the initial 90-day period, one can apply for and participate in the Ignition Interlock program for 12 months. If one does not participate in the Ignition Interlock program, their licence will be suspended for an additional 12 months after the initial 90-day period (15 months total).
Fines and Tow Bills: An IRS can come with fines depending on the type of sanction. The amount can vary between $200 and $2,000. These fines may also include a victim fine surcharge and fees related to the seizure, towing, and storage of your vehicle.
Frequently Asked Questions
What is an Immediate Roadside Sanction?
Pursuant to an Immediate Roadside Sanction (IRS) a driver can have their licence suspended for a set period of time due to an allegation of drug or alcohol-related impaired driving. These sanctions are administered under the Immediate Roadside Suspension Program that came into effect across Alberta on December 1, 2020, replacing the Alberta Administrative Licence Suspension program. The length and type of suspension will depend on the type of licence you have and the results of the police roadside screening. All suspensions are legislated in the Traffic Safety Act, which outlines the various procedures, beginning at section 88(1).
Can I dispute a notice of administrative penalty in Alberta?
The Provincial Administrative Penalties Act outlines the appeal process of Notice of Administrative Penalties. The timeline in which to request a review (appeal) of your administrative penalty is brief. Your notice of appeal must be filed within seven days, with very few and rare exceptions (usually for medical reasons).
These administrative offences are challenged by way of written submissions, meaning you will not need to attend court. An accused can apply for a review of their suspension, schedule the review, and upload documents as their evidence on the Saferoads online portal. After considering the evidence and submissions, SafeRoads will either uphold the licence suspension or cancel it. In either case, they will notify an accused of their decision in writing within 30 days from the day the penalty was issued.
Should I hire a lawyer for a notice of administrative penalty?
It is highly recommended that you hire an experienced lawyer to help you with disputing a Notice of Administrative Penalty. In preparation for the hearing, your lawyers will review police actions and the evidence against you, prepare the arguments (oral or written) for your review hearing, and assemble evidence to support your arguments. Then, they will argue before SafeRoads on your behalf, either in an oral hearing or with persuasive written arguments, that your licence suspension should be cancelled.
Published Decisions
Smit v Alberta (Director of SafeRoads), 2023 ABKB 435
Smit appealed a Notice of Administrative Penalty (NAP) issued against her that disqualified her from driving in Alberta. She argued that she should have been provided with the audio and video recordings from the police vehicle. She cited s.2(h) of the SafeRoads legislation, which states, “the director shall provide … any other relevant records and representations of the officer who issued the notice of administrative penalty … that are in the opinion of the Director relevant and necessary to determine the basis for issuing the notice of administrative penalty.”
The court held the Adjudicator’s decision was unreasonable and send the matter back to be reheard. This case relates to the common law principles of fairness that require the Director to provide an applicant seeking review any existing police-recorded audio or video or advise that no such recordings exist.
You can read the full decision here.
Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153
This case is about the constitutional validity of s. 88.1 of the Alberta Traffic Safety Act, creating an administrative suspension of a driver’s licence upon being charged with impaired driving.
The court held the roadside administrative licence suspension enacted in s. 88.1 of the Alberta Traffic Safety Act breaches ss. 7 and 11 of the Charter and is not saved by s. 1.
You can read the full decision here.
Ernst v Alberta (Director of SafeRoads), 2024 ABKB 68
The accused was issued a NAP for both impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration over 80 mg of alcohol per 100 ml of blood. At the review, Ernst asked the court to find that the Adjudicator’s confirmation of the NAP was unreasonable. Ernst asked the court to consider Smit v Alberta (Director of SafeRoads), 2023 ABKB 435 as it pertains to common law principles of fairness and was successful. The court held that the Adjudicator’s decision is unreasonable and sent the matter back for rehearing before a different Adjudicator.
You can read the full decision here.
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