Is an IRS: FAIL a Criminal Charge? 

In Alberta, the Immediate Roadside Sanction (IRS) program introduced in late 2020 led to important changes in how suspected impaired driving cases were handled by law enforcement.

Instead of most cases ending up in the Alberta courts, the majority of people accused of impaired driving due to alcohol or drugs now escape a criminal charge unless aggravating factors are involved—but other penalties imposed under the Traffic Safety Act begin immediately at the roadside with a suspension and vehicle impoundment.

When road users in Alberta are requested to provide a breath sample at a traffic stop and are found with alcohol in their blood, they will receive a Notice of Administrative Penalty detailing the IRS applicable to their situation:

• IRS: FAIL
• IRS: WARN
• IRS: 24-HOUR
• IRS: ZERO NOVICE
• IRS: ZERO COMMERCIAL

Most adult drivers on standard licenses need only be concerned about the first three—with IRS: FAIL the most serious. That may no longer lead to criminal charges but it is still important not to treat it lightly…

What is an IRS: FAIL?

The most serious immediate roadside sanction is an IRS: FAIL and it could result in criminal charges. A law enforcement officer in Alberta can issue a Notice of Administrative Penalty if they suspect a driver:

• Operated a vehicle while their ability to drive was impaired to any extent by drugs and/or alcohol.
• Had a blood alcohol concentration equal to or exceeding a rating of 0.08 (exceeding what is prescribed by the Canadian Criminal Code) or a blood alcohol concentration and a blood drug concentration exceeding what is prescribed under the Canadian Criminal Code, within two hours of operating a vehicle.
• Failed or refused, without a reasonable excuse, to comply with a known demand for a sample.

What are the penalties for an IRS: FAIL?

The penalties you will receive for an IRS: FAIL vary depending on whether it is your first or subsequent offence. 

For a first IRS: FAIL offence

• The driving license is seized.
• Drivers are immediately suspended from driving for 90 days (no exceptions).
• After 90 days, drivers must participate in the Ignition Interlock Program for at least one year.
• Drivers’ vehicles are seized for at least 30 days.
• Drivers are liable for a fine of at least $1,000 plus a victim surcharge of 20%.
• Drivers must complete the Planning Ahead course.
• Additional conditions may apply for licence reinstatement.

For a second IRS: FAIL offence

• The driving license is seized.
• Drivers are immediately suspended from driving for at least 90 days (no exceptions).
• After at least 90 days, drivers must participate in the Ignition Interlock Program for up to 36 months.
• Drivers’ vehicles are seized for at least 30 days.
• Drivers are liable for a fine of a fine of up to $2,000 plus a victim surcharge of 20%.
• Drivers must complete the IMPACT program.
• Additional conditions may apply for licence reinstatement.

For a first IRS: FAIL offence

• The driving license is seized.
• Drivers are immediately suspended from driving for at least 90 days (no exceptions) and possibly even for life.
• After at least 90 days, drivers must participate in the Ignition Interlock Program indefinitely.
• Drivers’ vehicles are seized for at least 30 days.
• Drivers are liable for a fine of at least $2,000 plus a victim surcharge of 20%.
• Drivers must complete the IMPACT program.
• Additional conditions may apply for license reinstatement.

Can you appeal a roadside suspension?

Under the IRS program, more power is provided to law enforcement to suspend licenses, distribute fines, and greatly impact the lives of drivers—based on their observations rather than on solid proof of impaired driving.

The penalties are mandatory and there is no flexibility or negotiating. However, simply paying the fine is rarely the best option, as the consequences can affect you later, even if it is your first offense and no criminal charges are filed. Once you pay the fine, you admit guilt and relinquish the right to appeal.

Unlike with a criminal process, you do not have the option to defend yourself at trial. However, you can appeal your suspension within seven days of the date of your IRS Notice of Administrative Penalty. A roadside appeal will initiate an IRS review, where the evidence from law enforcement is reviewed. Representation from a seasoned impaired driving lawyer can help you navigate this process.

If an appeal is successful, the entire suspension and vehicle seizure would be canceled and there would be no requirement for any fines or participation in any programs.

When does an IRS: FAIL lead to a criminal charge?

Drivers can receive non-criminal sanctions under the IRS program AND be charged under the Criminal Code of Canada.

Although there are no hard and fast rules, a criminal charge becomes more likely if:

• The offender has a history of contravening traffic laws or criminal charges in relation to alcohol or drug-related driving.
• Injury or property damage was caused by his/her actions.
• The person is alleged to have committed an additional offence as part of the incident, e.g., failing to remain at the scene of an accident, driving while disqualified, etc.

Can I go to jail for an IRS: FAIL?

You are unlikely to go to jail simply for an IRS: FAIL but if another crime has been committed and criminal charges are pursued, you could end up serving time.

It’s best to challenge your IRS: FAIL and, whether or not you’re charged with a criminal offence, speak to a local impaired driving lawyer as soon as possible. This can help mitigate the consequences you face in the future.

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.