IRS disclosure and Missing Records

One of the strongest grounds for cancelling an IRS is a lack of disclosure of a relevant recond that must have been disclosed under the Regulation.

Under the SafeRoads Alberta Regulation, the Director must provide you  with all relevant records regarding the investigation. If the police fail to upload these documents to the portal, we may be able to argue that a particular ground of cancellation has been made out.

We meticulously review the disclosure package for missing items, which must often include but not be limited to:

• Officer’s Notes: The handwritten or typed notes detailing the traffic stop.

• Checklists: The specific operational checklists used for the breathalyzer or drug screening device.

• Calibration Records: Maintenance logs proving the Approved Screening Device (ASD) was properly calibrated and serviced within the required timeframe.

• Certificates of Analysis: For breath or blood samples taken at a detachment.

• Any other records that may be relevant and necessary based on the facts of the case, and that may be necessary to know the basis of the Notice of Administrative Penalty.

For example, if the police cannot produce the records for the device you blew into, how can they prove it was working correctly? We use these gaps to attack the validity of the test results.

Approved Screening Device (ASD)

This is the handheld device you blew into at the window of your car. The police must provide:

• Annual Maintenance dates: Proof that the device was serviced within the last year.

• Calibration Records: Documentation showing the device was calibrated properly and that the calibration had not expired at the time of your stop.

Approved Instrument (AI)

If you were taken to a detachment or a Checkstop bus for a more accurate breath test, the documentation requirements are even stricter. We look for:

• The Subject Test Record: The actual printout of your results.

• Standard Change Forms: Proof that the alcohol standard used to verify the machine's accuracy was changed correctly.

• Certificate of Qualified Technician: Evidence that the operator was actually trained and certified to use that specific machine.

The Legal Argument: If any of these documents are missing, incomplete, or show dates that don't match, we argue that the Director cannot be satisfied that the readings were accurate.

Your Right to a "Second Test" (Section 88.11 TSA)

The test for whether an IRS recipient has been advised of their right to a roadside appeal is twofold: first, whether the police advised them of their right to a roadside appeal in writing; and second, whether they were aware of their right to a roadside appeal before they requested to do the test or decline it.

The Courts have always expressed concerns regarding the reliability of the roadside screening devices. Therefore, it is crucial that a roadside impaired driving investigation has the necessary safeguards.

Alberta’s legislation incorporated the right to a roadside appeal so the NAP recipient could challenge the NAP at the roadside by doing a second test. The recipient can also choose tod decline the second test as it is a voluntary right.

One of the most overlooked procedural defences involves your right to a second analysis. Under Section 88.11(2) of the Traffic Safety Act, if you request a second test, the police must perform it using a specific method. They cannot just choose whatever is convenient.

If the officer used the wrong device for your second test, the procedure is flawed. Below is a breakdown of the required protocol:

• When a first test is on ASD then a second test (if requested) can be a test on a different ASD or an Approved Instrument (detachment machine).

• In cases involving Standard Field Sobriety test or drug inmpaired cases, a second test can be a blood or urine test (DRE).