What Is IRS: FAIL in Alberta?

Law enforcement officers at traffic stops in Alberta have the power to issue four types of penalty notices under the Immediate Roadside Sanction (IRS) program, which began in December 2020.

IRS: FAIL is one of these penalty notices—the most serious. Let’s look at what it means and how it could affect you…

What is an IRS: FAIL?

Under the Immediate Roadside Sanctions program, the police can issue any of the following types of Notice of Administration Penalty to drivers suspected of being under the influence of alcohol or drugs while operating a vehicle:

• IRS: FAIL
• IRS: WARN
• IRS: 24-HOUR
• IRS: ZERO (NOVICE OR COMMERCIAL)

These penalties target drivers who have consumed any amount of alcohol or drugs before operating a vehicle.

IRS: FAIL is the most serious immediate roadside sanction. It is issued to any driver who, in the opinion of a law enforcement officer:

• Operates a vehicle while their ability to drive was impaired to any extent by drugs and/or alcohol.
• Has a blood alcohol concentration equal to or exceeding 0.08 (the prescribed limit in 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.
• Fails or refuses, without a reasonable excuse, to comply with a known demand for a sample.

What are the penalties associated with an IRS: FAIL?

The penalties issued for an IRS: FAIL are mandatory and vary depending on whether it is a first, second or subsequent offence. 

For a first IRS: FAIL offence

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

For a second IRS: FAIL offence

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

For a first IRS: FAIL offence

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

Is an IRS: FAIL a criminal penalty?

Before 2020, operating a vehicle while impaired, registering a BAC of 0.08 or over or refusing to provide a sample would likely have resulted in criminal charges.

The IRS program was designed to reduce the burden on the court system while also deterring those suspected of impaired driving from repeating their actions. 

Standardly, criminal charges are not pursued if a roadside penalty is issued. The roadside sanctions outlined above are all administrative. However, in some cases, an IRS: FAIL can lead to criminal charges too.

When are criminal charges pursued in IRS: FAIL cases?

Typically, an IRS: FAIL is the only roadside sanction that could also result in criminal charges under the Criminal Code of Canada. This becomes more likely if:

• Injury or property damage was caused by the driver’s actions.
• The driver 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.
• The offender has a history of criminal charges/convictions for contravening traffic laws

What can you do about an IRS: FAIL?

Drivers who receive a Notice of Administrative Penalty for an IRS: FAIL may be so relieved at receiving no criminal charge that they accept the penalty.

This can be a mistake because:

• Accepting the penalty is an admission of guilt
• They must accept a driver’s license suspension, vehicle impoundment, and other harsh consequences
• Criminal charges may follow later

It should be remembered that law enforcement can suspend licenses, distribute fines, and greatly impact the lives of drivers based solely on their observations rather than on proof of impaired driving.

Therefore, it is often best to appeal a roadside sanction. Drivers have only seven days from the date of service of an IRS Notice of Administrative Penalty, however, to request an IRS review. 

The evidence from law enforcement is reviewed and your version of events can be presented, which an impaired driving lawyer can help you with. If the appeal is successful, the fines, suspension, and vehicle seizure will be canceled.

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.