Answers To Questions About Impaired Driving Charges
The first step is to open a file. Once a file is opened in our office, we answer any questions you may have, we order disclosure, once it is in we review disclosure with you, and we appear in court for all of your court appearances so that you do not have to go. Please call our office for more details on how to open a file.
No. The SafeRoads Adjudicator cannot consider the hardship that losing your license may cause you or your family. However, talk to your lawyer to see if there are other options open to you.
Yes, if you were charged criminally and fingerprints and photographs were not already done before you were released. It is an offence not to go for fingerprinting. No, if you were not charged criminally and only received the Notice of Administrative Penalty under the SafeRoads regime.
You do not have to be present, but it is preferable that you attend, if possible. The hearing can take place without you but in case the SafeRoads Adjudicator has questions it is better if you can be present.
While Alberta had, for decades, previous to December 2020 an administrative license suspension regime that normally ran parallel to criminal impaired-driving investigations, the introduction of the SafeRoads regime at the end of 2020 represented a very significant legal shift. Very often now, drivers who have not had any prior alcohol-related incidents are given only the administrative penalty. This means there are no charges and there will be no trial. Instead, there is a virtual hearing in front of a SafeRoads adjudicator who will determine whether to cancel or confirm the Notice of Administrative Penalty.
If you do nothing with the NAP, you will not end up with a criminal record but be aware that the effects of these are cumulative. A third occurrence will result in a lifetime suspension (which is more severe than any penalty noted in the Criminal Code). Because there is no trial, defending these NAPs costs a fraction of what the fees would be for criminal charges (you can see our fee section for the exact number of our starting price). For more information about the SafeRoads regime, please listen to our podcast series, Legal Eyes, or better yet, call us so we can talk to you about it.
There are too many changes to outline all of them here. It is important that you speak to a lawyer to understand the full impact these changes may have on you or someone you care about. Here, however, are some of the highlights:
The section numbers of the offences in the Criminal Code all changed (see below).
The nature of the offences has changed:
Impaired driving (s. 253(1)(a)) became operating a conveyance while the ability to do so is impaired by alcohol (s. 320.14(1)(a)). The legal limit was lowered. Driving with a blood alcohol level over 80 mg% (s. 253(1)(b)) became operating a conveyance within two hours of having a blood alcohol level at or exceeding the limit of 80 mg% (s. 320.14(1)(b)).
The penalties have changed. These may or may not apply to you, depending on whether you were actually charged or only received the Notice of Administrative Penalty. Make sure to speak to a lawyer before making any use of the following information.
With respect to fines, there used to be a mandatory minimum $1000.00 fine for impaired driving-related offences. After December 18, 2018, the minimum fines depend on the results of the breath tests. Refusals or failures to comply with demands for breath, bodily substances or sobriety tests, will result in a minimum $2000.00 fine (s. 320.19).
With respect to the driving disqualification period, the mandatory minimum remains a one-year driving prohibition. However, before December 18, 2018, a person convicted would have to wait three months before being able to access Ignition Interlock which would allow the person to drive for the remaining nine months. After December 18, 2018, a Court may allow a convicted person access to Ignition Interlock without any mandatory wait period, allowing the person to drive for the 12-month prohibition (S. 320.24).
One of the biggest changes was the introduction of s. 320.27(2). An officer who has a screening device in his or her possession may stop a vehicle for a sobriety or document check and require the driver to blow into the device without having grounds even to suspect that there has been consumption of alcohol. A police officer may make a Mandatory Alcohol Screening demand of anyone he or she stops, whether that is for speeding, a seat-belt violation or any other reason relating to road safety. As long as the officer has a screening device in his or her possession and actually stopped the driver (so the officer personally saw the vehicle being operated) he or she can require you to provide a sample of your breath even if the officer has no basis to believe you have had any alcohol or drugs recently.
If you have been charged criminally, you can order it yourself. Call the Crown Prosecutor’s office ahead of time to find out what documents you might need to bring with you. You can ask our firm to order it for you. We will request the documents we know you will need and once the package is received, we will review it to ensure it is complete.
If you only received the SafeRoads’ Notice of Administrative Penalty, you can log onto the SafeRoads portal by using the information contained on the NAP. We invite you to listen to our podcast series, Legal Eyes (under Resources), specifically the episode called, “How to Run (and Hopefully Win) Your IRS” for more information on how to log into the SafeRoads portal. Of course, you can also call us so we can discuss this in more detail.
You will need to pay the $150 filing fee and submit your grounds for the appeal. The grounds normally have to relate to one of the enumerated defences outlined in section 4 of the SafeRoads Alberta Regulation, Alta Reg 224/2020. The Court of King’s Bench regularly decides cases of Judicial review which typically will have a decisive effect on your ability to advance various arguments. This area of the law is fairly complex, and you would be well-advised to retain counsel to assist you. For more information about the SafeRoads regime, please listen to our podcast series, Legal Eyes, or better yet, call us so we can talk to you about it.
In the criminal context, it often depends on where the disclosure package is coming from. Usually, disclosure takes between two and four weeks to arrive. In the SafeRoads context, it is normally on the SafeRoads portal within a day or two of the Notice of Administrative Penalty having been issued. The police must upload all relevant disclosure within 4 days of any hearing that has been set.
From the time you put in a plea it will probably take, at the very minimum, three and a half months before the matter will come up again for trial. Normally, though, it will take longer. Generally, you can expect that it will take between six and eight months to get the matter to trial. It may take longer depending on a number of factors.
The law with respect to impaired driving changed federally on December 18, 2018. Radical changes occurred in Alberta in December 2020. In essence, Alberta has opted out of enforcing the provisions of section 320 of the Criminal Code which relate to impaired driving in situations where it is a first occurrence and where there are no significantly aggravating factors. First occurrences of alcohol-related driving offences are very often dealt with on a purely administrative basis through the SafeRoads Alberta regime.
You may or may not have been “charged”. Most people in Alberta and British Columbia are not charged criminally for impaired driving, driving with a blood alcohol level over the legal limit or failing or refusing to provide a breath sample as long as there are not aggravating factors like an accident, injuries or previous related convictions or occurrences. To determine whether you were charged criminally, look at the documents you received at the time of the stop or afterwards. These will indicate whether you were charged criminally (those documents would include a court date) or not (in which case you may have only received the Notice of Administrative Penalty and Seizure Notice(s) under the SafeRoads Alberta regime).
The first step in defending yourself against the Criminal Code charges, is to phone our office and open a file. Once a file is opened in our office, we answer any questions you may have, we order disclosure (see below), once received we review the disclosure with you, and we appear in court for all of your court appearances so that you do not have to go yourself. When you call the office, please have with you all of the documents you were given by the police upon release so that we can open the file easily.
If you are under the SafeRoads regime, the first steps in contesting a Notice of Administrative Penalty are outlined below.
No, if all you received was the Notice of Administrative Penalty (also known as the Immediate Roadside Sanction) under the SafeRoads regime, and you do nothing, you will not end up with a criminal record. However, you will end up with an entry on your driving abstract. Unlike criminal convictions (for which you can apply for a record suspension – also known as a pardon) there is no such mechanism currently available to expunge a problematic driving abstract.
If you are a youth you must appear at all court appearances unless you have filed a designation of counsel. Even then, you should know that some courts will insist on you being personally present for the first court appearance. It will not be enough to send someone else, a non-lawyer, in your place. If you are an adult and you know that the Crown is proceeding by summary conviction, as opposed to by indictment, you may be able to send someone in your place, depending on the kind of court appearance it is. Check with a lawyer before assuming that you do or do not have to be personally present. If the Crown is proceeding by indictment, you may file a designation of counsel which will allow a lawyer to be present on your behalf for most preliminary court appearances. (See question about summary versus indictable offences).
From the date that you received the Notice of Administrative Penalty you have only seven days within which to start your appeal. The Director of SafeRoads must offer you a hearing within 21 days of the date you received the NAP. Thirty days from the date you received the NAP, you will be given a decision on whether the NAP will be cancelled or confirmed. While you can apply for a late review within 12 months of having received the NAP, those applications are not always easy to win. If you lost your IRS (Immediate Roadside Sanction hearing aka NAP) hearing, you have only thirty days within which to seek judicial review.
The hearing in front of the SafeRoads Adjudicator is a half-hour virtual hearing which takes place over the Government’s preferred platform called WebEx (a program designed by Cisco). You will need to have downloaded the app before the day the review is to take place. There is no cost for downloading the app. The hearings over WebEx look and feel a lot like Teams or Zoom meetings. Written submissions can be uploaded ahead of time, along with almost any other evidence upon which the applicant wishes to rely. The hearing is audio-recorded but not video-recorded. The hearing will often begin either immediately on the time reserved or a minute or two before.
The penalties will vary depending on if and when you were charged. If you were charged criminally, and you provided samples of breath, the minimum fine for readings between 80 and 119 mg% will remain $1000.00. For readings between 120 and 159 mg% the minimum fine will be $1500.00. A blood alcohol level of 160 mg% or more, or any kind of refusal, will result in a minimum $2000.00 fine. There will also be a minimum one-year driving prohibition upon conviction, but the Court may or may not impose a mandatory waiting period before allowing access to the Ignition Interlock program.
If you were given a Notice of Administrative Penalty and you will be given a suspension of 90 days (when you cannot drive at all) followed by another 12 months (for a “First Occurrence”), 36 months (for a second occurrence) or a lifetime suspension (for a third occurrence). You may be able to use Ignition Interlock to drive during the additional 12 months, 36 months or lifetime portions of the license suspension. Your vehicle will be seized and impounded for 30 days. To get the vehicle out of impound typically costs between $1800-$3000, depending on the location. Your insurance will go up (clients have told us the increase is roughly $5000/year). There are reinstatement conditions which must be satisfied including a mandatory course, a possible driving test, etc.
If you were convicted of impaired driving under the Criminal Code, you may be able to appeal. If the NAP was confirmed, you may be able to apply for Judicial Review. We invite you to listen to our podcast series, Legal Eyes (under Resources), specifically the episode called, “The Wild Wild West of Judicial Review” for more information. Of course, you can also call us so we can discuss these options in more detail.
If your criminal matter is set for trial, call your lawyer immediately. If you don’t have a lawyer, call the courthouse and the Crown Prosecutor’s office. Be aware that, depending on the nature of the court appearance, the matter may still go ahead if there is a suggestion that your reason is not valid.
If you are supposed to be appearing at your SafeRoads hearing and the WebEx app is not working for you, do not panic! If you have clicked on the “Join the Meeting Room” button under Review Details on the SafeRoads portal and nothing is happening, you can call the phone number directly below to attend by audio. If neither of those work, your lawyer will often inform the SafeRoads Adjudicator that it appears you may be having problems. The Adjudicator has the ability to call you at the number provided by your lawyer and link you into the meeting.
In the criminal context, disclosure includes just about anything the Crown prosecutor will be relying on at trial. In the administrative, SafeRoads regime, it includes the documents submitted by the police that outline the basis for issuing the Notice of Administrative Penalty. Disclosure is often much more fulsome in the criminal context and normally includes the police officer’s handwritten notes and reports, any witness statements, any collision reports, the Intoxilyzer printout etc. Disclosure also sometimes includes videotapes, audiotapes and photos. In the SafeRoads Administrative regime, disclosure often is limited to some notes and reports and pictures of the screening devices.
This is a trick question! There isn’t any. We do not know why the Government decided to ascribe two names to the same process, but the IRS and the NAP are the same thing. We will often refer to your IRS, when speaking about the hearing in front of the SafeRoads Adjudicator and the NAP when referring to the document you received from the officer. Seems confusing? We know. Please call us so we can help you with it.
Some criminal code offences are called “hybrid” offences. Impaired driving, over .08 and refusal are all “hybrid” offences. This means the Crown has a choice of whether to proceed by summary conviction or to proceed by indictment. If the Crown proceeds by indictment it means that the Crown views the case as more serious than the average case. The Crown will be seeking a greater penalty than it would in a “regular” case.
If you were charged criminally with impaired driving, driving with a blood alcohol level over the legal limit or failing or refusing to provide a breath sample, and you plead guilty or are found guilty after trial, you may be able to access Ignition Interlock almost immediately. Check with your lawyer to find out more about your options.
If you only received the Notice of Administrative Penalty (also known as the Immediate Roadside Sanction) under the SafeRoads regime, and you either do not fight it or are unsuccessful on your review in front of the SafeRoads Adjudicator, you will have to wait until 60 days after the Notice was issued before you can apply for admission into the Ignition Interlock program. You cannot actually operate a vehicle with Ignition Interlock until 90 days after the date of the issuance of the NAP.
Consult a Gunn Lawyer to Explore Your Legal Options
Contact Gunn Law Group today to discuss your legal needs and explore your options. Our team of experienced lawyers is here to provide you with the guidance and representation you require.
Call Us at (780) 488-4460
Your future deserves the dedication of Gunn Law Group. Let us help you navigate through whatever legal challenges you are facing.