What to do if you are caught in a checkstop

What to do if you are caught in a checkstop

By Vince Semenuk

Police forces across Alberta kicked off their holiday checkstop season in early December.

As this Calgary news report noted, “A steady stream of vehicles loaded into the dedicated stalls where drivers were asked to submit to a mandatory roadside breathalyzer. One by one, drivers blew into a straw before they were given the green light to proceed to their destination.”

Alberta police have broad discretionary powers when it comes to checkstops. Some are stationary operations where traffic is funnelled to a certain location. In other cases, motorists can be pulled over randomly.

Since the passage of Bill C-46 in December 2018, officers have the power to demand that any driver submit to a breath sample, even if they are not showing signs of impairment.
Alcohol-related driving offences are one the most heavily litigated areas of criminal law – but also one of the most defensible. This is due to the often technical and precise nature of the law and instrumentation involved.

Always provide a breath sample

Being pulled over at a checkstop can be a stressful and intimidating experience. Remain calm and produce your licence, insurance and registration information when requested. The officer will also ask whether you have consumed any alcohol. While you are under no obligation to answer, any response you provide or withhold may be used against you during an impaired driving investigation.

At a checkstop, you are legally obliged to comply with a breath test demand. Failure to do so will result in a charge that carries the same penalties as if you are impaired, with fewer defences. Even if you know that you will blow over, you are far better off blowing and getting a “fail” reading than refusing to blow outright. That is because the defences for refusal under the SafeRoads Alberta legislation are exceptionally limited compared to the defences available should you blow a “fail” reading.

At a checkstop you do not have the right to speak with a lawyer before providing a roadside breath sample. However, if you are arrested, the officer is supposed to inform you of your legal right to speak with counsel and you are to be provided a reasonable opportunity to do so.

Unfortunately, during most impaired driving investigations in Alberta, the police may ignore your right to counsel because they are proceeding with a Traffic Safety Act investigation rather than an actual Criminal Code investigation. Police may not inform you of this difference at the time of their investigation.

That means that although you may be arrested for impaired driving and told that you have a right to counsel, very rarely will you actually be afforded the opportunity to contact a lawyer prior to being asked if you want to provide further samples of your breath.

Immediate Roadside Sanctions

Immediate Roadside Sanctions (IRS) are penalties officers can impose if drugs or alcohol are detected in someone operating a motor vehicle. When an IRS is imposed, it will be set out in a Notice of Administrative Penalty (NAP) that is served directly upon the driver by the officer. Once the NAP is issued, the driver’s licence suspension or disqualification begins immediately. A Confirmation of Suspension will also be sent to the address listed on the motor vehicle’s file.

IRS WARN penalties

If your blood alcohol concentration is between 0.05 and 0.079 or if you fail drug and alcohol sobriety tests and this is your first occurrence, penalties include:

  • an immediate three-day driver’s licence suspension;
  • a three-day vehicle seizure; and
  • a $300 fine plus a 20 per cent victim fine surcharge.

Second-time offenders face:

  • an immediate 15-day driver’s licence suspension;
  • a seven-day vehicle seizure
  • a $600 fine plus a 20 per cent victim fine surcharge.
  • remedial education through the Crossroads or Planning Ahead courses

Third-time offenders face:

  • an immediate 30-day driver’s licence suspension;
  • a seven-day vehicle seizure
  • a $1,200 fine plus a 20 per cent victim fine surcharge.
  • remedial education through the IMPACT Program

IRS FAIL penalties

If your blood alcohol concentration is 0.08 or more, if you fail or refuse drug and alcohol testing, or if you fail drug recognition tests and it is your first occurrence, penalties include:

  • a 90-day licence suspension;
  • a further 12-month driver’s licence suspension when you can participate in Alberta’s IRS: FAIL Ignition Interlock Program and operate a vehicle equipped with an interlock device. If you choose not to participate in the program your licence will remain suspended throughout this time;
  • enrolment in the Planning Ahead course;
  • a 30-day vehicle seizure; and
  • a $1,000 fine plus a 20 per cent victim fine surcharge.

Second-time offenders face:

  • Immediate two-stage, fixed-term driver’s licence suspension consisting of two distinct parts:
  • 90 days where you are unable to drive under any circumstances
  • further 36-month driver’s licence suspension. During this suspension period, you may participate in Alberta’s IRS: FAIL Ignition Interlock Program and operate a vehicle equipped with an interlock device. If you choose not to participate in the Ignition Interlock Program, your licence will remain suspended, and you cannot legally drive.
  • Complete the IMPACT Program.
  • 30-day vehicle seizure.
  • $2,000 fine plus a 20 per cent victim fine surcharge.

Third-time offenders face:

  • Immediate two-stage, fixed-term driver’s licence suspension consisting of two distinct parts:
  • 90 days where you are unable to drive under any circumstances
  • further lifetime driver’s licence suspension. During this suspension period, you may participate in Alberta’s IRS: FAIL Ignition Interlock Program and operate a vehicle equipped with an interlock device. If you choose not to participate in the Ignition Interlock Program, your licence will remain suspended, and you cannot legally drive. Provided you meet the eligibility criteria, you can apply for driver’s licence reinstatement and removal of the interlock requirement after 10 years. An application does not guarantee a removal of the lifetime suspension.
  • 30-day vehicle seizure
  • $2,000 fine plus a 20 per cent victim fine surcharge.

You may also be charged with driving while criminally impaired and face charges in the regular court system. A lawyer can advise you on the charges and legal process you are involved in. A lawyer will not be with you when police interrogate you. However, you can politely decline to answer any questions officers ask except about your identity.

Those with a graduated driver’s licence will receive an immediate 30-day licence suspension and a seven-day vehicle seizure if they are caught with any level of drugs or alcohol in their systems.

As I noted in an October blog post, SafeRoads Alberta doubles down on its unfairness, under Alberta’s Roadside Sanctions program drivers have lost many of the procedural protections they once enjoyed while police have been given broader powers to penalize drivers without any supervision or oversight. In effect, the IRS regime makes the police officer the judge, jury and executioner at the side of the road.

Contact us for assistance

Many of those given NAPs at checkstops, or even those who will face criminal charges, are ordinary citizens who did not did not drive erratically or dangerously before they were stopped. Whatever your situation, the team at Dunn & Associates can advise you of your best options. We can provide a free consultation and guide you through the legal process. Call us at (403) 233-0443.