SafeRoads v. V.B.

(Calgary SafeRoads - NAP/Impaired Driving/Drug Recognition Evaluation). VB was reported by an unknown third party for suspected impaired driving. Police located VB's vehicle and executed a traffic stop. Ultimately, VB was subject to field testing sobriety for drugs, arrested for impaired driving and transported to a police detachment in Calgary for evaluation by a "drug recognition expert". A primary issue at play in VB's case concerned the Recipient's right to a second sample (roadside appeal). 

A roadside appeal is essentially a Recipient's opportunity to voluntarily provide a second sample of breath (for alcohol) or urine (for drugs), the result of which either confirms or disconfirms a prior mandatory sample or test for impairment. When a breath testing instrument is used to mandatorily collect a breath sample, a roadside appeal or second sample must be collected using a different breath testing device. In drug cases, there is tension in SafeRoads cases as to whether a second sample requires an entirely new urine sample or whether the police agency collecting the sample can simply split the mandatorily collected first sample in half. This Calgary impaired driving lawyer is of the view that splitting the first sample into a different cup for testing is not logically a second sample; rather, it is the first sample divided. Many courts and adjudicators disagree.

VB's case escaped the logical incongruity of splitting a sample, for the purpose of calling a new/second sample; for in VB's case, there was no evidence that police ever offered VB the option of providing a second sample and there was no evidence from police that they ever divided VB's first urine into a second sample.  

In VB, the adjudicator reasoned,"...the fact the DRE narrative of...the officer who is reported to have completed the roadside appeal testing, is silent on the roadside appeal process leads me to question of a roadside appeal test was conducted".  The adjudicator agreed with VB that the right to second sample had not been offered and cancelled VB's roadside sanctions. 

For anybody sanctioned under Alberta's Notice of Administrative Penalty (NAP) regime, it is important to immediately recognize that this process is gamed against you. The silver lining for the vast majority of NAP recipient's is that they are not at risk of a criminal record. However, as this Calgary criminal lawyer has explained to hundreds of people who have received roadside sanctions, that is the only silver lining for in NAP cases the recipient does not get the same procedural, evidentiary, Constitutional or adjudicative protections. To the extent there are any protections under the Administrative scheme, they have arguably been neutered to the point of nonsense. There are many examples of nonsense. For instance, adjudicators in NAP cases have hitherto rejected submissions by defence counsel that it is egregiously unfair to condone secreting away media evidence (such as police body camera footage). Another example concerns the splitting of a single sample into a separate sample and calling the recipient's voluntarily provided second sample. While NAP recipient's are often disappointed by these types of decisions, qualified NAP lawyers are often successful in having roadside sanctions cancelled. If you have a received a Notice of Administrative Penalty, call an experienced roadside sanctions lawyer in Alberta; he or she may be able to help.