What is a Roadside Appeal in Alberta?

Since the end of 2020, new DUI laws in Alberta have resulted in immediate license suspensions for anyone who is stopped by law enforcement and suspected of impaired or drunk driving.

These are administrative license suspensions but other suspensions—as well as fines, driver education, and other penalties—may result if you are criminally charged and convicted.

An immediate roadside appeal may help you prevent some serious consequences but should not be confused with an appeal against an immediate roadside suspension, which is an official process that requires an application through SafeRoads Alberta.

Let’s look a little closer at the IRS program laws and how you can appeal roadside sanctions in Alberta.

What is a roadside sanction in Alberta?

Under the Immediate Roadside Sanctions (IRS) Program, a police officer who suspects you of impaired driving can stop you, immediately suspend your licence, issue a fine, and seize your vehicle at the roadside. 

As harsh as these penalties may seem, they are administrative penalties rather than criminal ones. However, criminal charges may follow if you are suspected of causing an accident, injury or death or if you have a prior record for impaired driving within the past 10 years.

The law enforcement officer has the legal right to issue the roadside sanctions if he/she believes that you operated a motor vehicle while your ability to do so was impaired to any degree by alcohol or a drug and/or if, within two hours after ceasing to operate a motor vehicle, your blood alcohol concentration was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood (the legal federal limit in Canada).

Similar roadside sanctions may apply if you refuse to comply with a demand to provide a breath sample using a roadside screening device—unless you can provide a reasonable excuse not to.

Drivers who are issued roadside sanctions receive a Notice of Administrative Penalty (NAP) from the officer handling their case at the roadside. This document explains why the IRS was issued, what sanction was imposed, and how to appeal the roadside sanction.

For a full understanding of the immediate roadside sanctions and penalties associated with criminal convictions for impaired driving and operating a vehicle over .08, please check our other DUI FAQs.

What is a roadside appeal?

The first breath test is usually performed roadside based on the suspicions of a law enforcement officer. The suspect must usually blow into an approved screening device.

A roadside appeal questions the results of the first roadside test and exercises a suspect’s right to a second test. This is usually performed in the same location as the first by the same officer but using a second approved screening device. Sometimes, it is performed at a local police station using another method.

If the result of the second test is equal to or greater than any prohibited concentration, the Notice of Administrative Penalty will be confirmed at the roadside. The Notice may, however, be cancelled if the results of the second test are within a non-prohibited range.

Example:

You are stopped by the police and asked to provide a breath sample using an approved screening device at the roadside. Your Blood Alcohol Concentration reading says FAIL as it is over .08 (the legal limit). 

You immediately appeal this at the roadside. The officer suggests that you provide a second sample of your breath using a different approved screening device. The second device reads PASS (BAC is less than 0.05). In this case, the Notice of Administrative Penalty can be cancelled and you may be able to drive away. However, if the reading was in the “WARN” range (BAC between 0.05 and 0.08), the officer may revert to a lower form of IRS penalties instead and the immediate roadside suspension will stand.

Appealing an administrative license suspension

Another type of appeal concerning immediate roadside sanctions in Alberta is an appeal against an Administrative Licence Suspension.

Rather than appealing this at the roadside, you have seven days from the date of issue of the Notice of Administrative Penalty to request a review of your case with SafeRoads Alberta.

You must first satisfy one of the three grounds for appeal:

• You did not provide a blood or breath sample over the federal limits while operating a vehicle or within three hours of driving a vehicle.
• You did not drive a vehicle while under the influence of illegal substances or over the permitted limit of substances.
• You did not refuse a peace officer’s demand to submit to a test.

The process for requesting a written review or hearing appears on the reverse side of the NAP. You can apply either online or through a participating Alberta registry agent.

After your case is heard, the decision will be handed down by SafeRoads Alberta within 30 days. Either the license suspension will be upheld or revoked. The review decision can be appealed through an application to the Court of King’s Bench of Alberta for a judicial review if warranted.

Do I need a lawyer to appeal?

A lawyer cannot be much help at the roadside but educating yourself about your legal rights and responsibilities is a good idea for all drivers who consume alcohol.

Roadside suspensions and possible criminal penalties are serious matters that you should challenge wherever possible. Once you receive a suspension and/or criminal charges, a seasoned DUI lawyer may be able to mitigate the consequences and help you appeal, thereby avoiding unnecessary sanctions.

Call us to arrange a confidential consultation

To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.