How do I beat an Immediate Roadside Sanctions (IRS) in Alberta?

Cory Wilson is a criminal defence lawyer and immediate roadside sanctions lawyer serving all of Alberta, including Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge, Grand Prairie and  Turner Valley.

Immediate Roadside Sanctions (IRS) in Alberta are administrative penalties imposed on drivers who have been found to be impaired while operating a vehicle. These sanctions are applied when a driver’s blood alcohol content (BAC) is over 0.08 or when a driver fails or refuses a breathalyzer test. However, there are several defenses available to drivers facing IRS in Alberta. Here are some of the most common defenses with more detail on each:

Inaccurate Test Results

The breathalyzer machine used to test the driver may have malfunctioned, resulting in an inaccurate reading. Alternatively, the test may have been improperly administered, leading to a false positive result. In either case, the driver may be able to challenge the accuracy of the test results in court. An experienced DUI lawyer can identify the potential issues with the breathalyzer machine and challenge the accuracy of the results. This can include issues with calibration, maintenance, and usage. Additionally, a lawyer can identify any issues with how the test was administered, such as a failure to observe the driver for 15 minutes prior to the test, which can lead to inaccurate results.

Failure to provide an opportunity for a second test

Police must advice you of your opportunity to provide a second test if you fail the first. The purpose of the second test is to confirm your blood alcohol level on a different device. This is a safeguard to make sure that if the first device was not working properly, the second device will hopefully provide the accurate result. If you blow on a second test and it is below a FAIL, the police officer must use that lower reading and you will not be given an IRS Fail.   

Improper Stop or Arrest

If the police officer who stopped or arrested the driver did not have reasonable grounds to do so, the IRS may be invalid. The driver’s lawyer can argue that the officer did not have a valid reason to suspect impairment and that the stop or arrest was therefore unlawful. For example, the officer may have stopped the driver for no apparent reason or may have based their suspicion of impairment on incorrect or insufficient information. If the stop or arrest was unlawful, any evidence obtained after the stop or arrest, such as the results of the breathalyzer test, may be excluded from evidence.

Failure to Comply with the Law

The IRS may be invalidated if the police officer did not follow proper procedures when administering the breathalyzer test or arresting the driver. For example, the officer may have failed to inform the driver of their rights or to provide them with a proper opportunity to contact a lawyer. Additionally, the officer may not have followed the procedures outlined in the Alberta Administrative License Suspension (ALS) Program, which governs the process for administering IRS. A skilled DUI lawyer can identify any procedural issues and challenge the validity of the IRS.

Medical Reasons

If the driver has a medical condition that affects their ability to produce a valid breathalyzer reading, such as acid reflux or diabetes, the IRS may be challenged. The driver’s medical condition can be presented as a defense to the IRS. A medical expert can be consulted to testify about how the medical condition can affect the breathalyzer test results. Additionally, the lawyer can argue that the driver’s medical condition may have affected their ability to perform field sobriety tests or to operate the vehicle in a safe manner.

Police Misconduct

If the police officer who administered the breathalyzer test or arrested the driver acted improperly, such as by using excessive force, the driver may be able to challenge the validity of the IRS. The driver’s lawyer can argue that the officer’s conduct was inappropriate and that the IRS should be invalidated as a result. Additionally, the lawyer can identify any other instances of police misconduct that occurred during the arrest, such as a failure to read the driver their rights or a failure to obtain a search warrant.

Non-Alcohol Related Impairment

If the driver’s impairment was not caused by alcohol, but rather by a prescription medication or other substance, the IRS may be invalid. In this case, the driver’s lawyer can argue that the impairment was not caused by alcohol and that the IRS should be invalidated. A toxicology expert can be consulted to provide testimony about the effects of the medication or substance on the driver’s ability to operate a vehicle. Additionally, the lawyer can argue that the officer who administered the breathalyzer test did not take into account the possibility of non-alcohol related impairment.

Necessity Defense

If the driver had no choice but to operate a vehicle while impaired, such as in the case of a medical emergency or to avoid harm, the driver may be able to use the necessity defense. This defense argues that the driver had no other reasonable options at the time and therefore should not be held liable for the DUI offense. This defense is rare and requires strong evidence to support it.

Police Conduct at the Roadside Stop

If the police officer’s conduct at the roadside stop was improper or violated the driver’s Charter rights, the driver may be able to challenge the IRS. For example, if the officer subjected the driver to an unlawful search or seizure, the IRS may be invalidated. Additionally, if the officer used excessive force or treated the driver unfairly, this may also be grounds to challenge the IRS.

Identification Issues

If the police officer who administered the breathalyzer test or arrested the driver did not properly identify themselves, the IRS may be challenged. The driver’s lawyer can argue that the officer did not properly identify themselves as a law enforcement officer, which may have led the driver to believe that they were not legally required to submit to the breathalyzer test. Additionally, the lawyer can argue that the driver was not properly advised of their rights and therefore did not understand the implications of refusing the test.

Issues with the ALS Program

If the ALS Program was not followed properly, the IRS may be invalid. The ALS Program sets out specific procedures for administering the breathalyzer test and for notifying the driver of the consequences of refusing the test. If the officer did not follow these procedures, the IRS may be challenged.

Conclusion

There are several defenses available to drivers facing IRS in Alberta. An experienced DUI lawyer can help identify potential issues with the breathalyzer machine, procedural issues, and issues with police conduct, among other potential defenses. Each case is unique, and the specific defense used will depend on the circumstances of the case. It is important to remember that immediate roadside sanctions are serious penalties with significant consequences, and it is important to seek legal advice if facing an IRS charge.

Cory Wilson is an immediate roadside sanctions lawyer based in Calgary and serving all of Alberta. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.