Roadside Appeals in Alberta: What Drivers Need to Know

By Alexander Koustov·August 28, 2026·10 min read

TL;DR: Alberta drivers who blow a "Fail" on a roadside screening device have an immediate statutory right under section 88.11 of the Traffic Safety Act to a second test on a completely different Approved Screening Device. That second test must be administered in the mandatory statutory sequence, including written notice and clear verbal advice before any election or waiver. Where police fail to follow those procedures, a driver may have grounds to challenge the administrative penalty before SafeRoads Alberta. Because the right is exercised at the roadside and the review process moves quickly, timing and proper legal review matter.

What Is a Roadside Appeal in Alberta?

A roadside appeal under section 88.11 of the Traffic Safety Act is your immediate statutory right to challenge the initial "Fail" result right at the scene. It provides a driver with an immediate second breath test on a completely different Approved Screening Device.

If the second test registers a lower result (such as a "Pass" or "Caution") or reveals that your BAC was below the statutory threshold, the officer must immediately cancel the Notice of Administrative Penalty ("NAP"). The officer must return your driver's licence, release your vehicle, and allow you to go on your way without administrative penalties. Because the secondary roadside test happens immediately during the police stop, it serves as the first and most immediate line of defence against an IRS sanction.

What Happens After an IRS Fail in Alberta?

You had a few drinks with friends at a neighbourhood pub in your town in Alberta. You felt sober enough to drive home safely. The police pulled you over and made you blow into a machine. The result was a "Fail." You recall that the officer told you to blow a second time and then you received some paperwork, your vehicle was towed, and your driver's licence was suspended.

Based on that narrative, you could likely have your licence reinstated, fines cancelled, and the towing and impound fees refunded to you by the government. Impaired driving in Alberta is now largely handled through a complicated administrative regime (rather than through the Criminal Code) and requires an experienced Calgary criminal lawyer who understands the subtle mechanics of administrative law and police procedure.

When police suspect a driver of impaired driving, they most often simply issue a Notice of Administrative Penalty (NAP) under section 88.1(1) of the Traffic Safety Act (TSA). However, Alberta law grants drivers explicit statutory rights. One of the most critical rights you hold at the curb is the right to a roadside appeal, a second, immediate test that can instantly cancel your suspension.

Understanding how a roadside appeal works, how officers must administer it, and what happens when police fail to follow mandatory procedures can make or break your driving privileges and your wallet.

Under Alberta's administrative impaired driving regime, governed by the Traffic Safety Act (TSA), the Provincial Administrative Penalties Act (PAPA), and the SafeRoads Alberta Regulation, impaired driving allegations are largely handled outside traditional criminal courts through immediate administrative sanctions.

When an officer forms reasonable grounds to believe you operated a motor vehicle while impaired or with a blood alcohol concentration (BAC) over the legal limit, they will issue an Immediate Roadside Sanction ("IRS") Fail notice. Our overview of DUI charges in Alberta sets out how these allegations commonly arise.

An IRS Fail carries immediate and severe consequences:

Immediate 90-day licence suspension, followed by a mandatory 1-year participation in the Ignition Interlock Program (or a further 1-year total driving prohibition if you choose not to participate).
30-day vehicle seizure, leaving you responsible for all towing and storage fees.
A $1,000 administrative penalty, plus dynamic victim surcharges.
Mandatory remedial education courses, such as the Planning Ahead course.

What Are the Proper Steps for a Roadside Appeal?

The procedure for issuing an IRS and administering a roadside appeal is strictly governed by statute. Police officers cannot simply improvise the process or treat statutory requirements as mere suggestions.

The Alberta Court of Appeal and the Court of King's Bench have repeatedly affirmed that police officers must strictly adhere to the mandatory statutory sequence set out under sections 88.1 and 88.11 of the TSA.

As clarified in landmark jurisprudence, including Lausen v Alberta (Director of SafeRoads), 2023 ABCA 176, Lawrence v Alberta (Director of SafeRoads), 2024 ABCA 361, and Van der Meulen v Alberta (Director of SafeRoads), 2024 ABKB 172, the law establishes a mandatory step-by-step sequence that officers must follow:

1. Initial Screening Test

The officer demands and conducts an initial breath test using an Approved Screening Device (ASD). The device registers a "Fail" result.

2. Issuing the Written Notice of Administrative Penalty (NAP)

Before asking the driver whether they want a second test, the officer must first complete and serve the written NAP on the driver. In Lausen v Alberta (2023 ABCA 176), the Court of Appeal confirmed that the legislation explicitly requires written notice before the roadside appeal takes place. The written NAP contains essential details about the allegations and explicit written notices regarding the right to a second test.

3. Clear Verbal Advice

After serving the written NAP, the officer must orally advise the driver of their statutory right to take a second test under section 88.11 of the TSA. The officer must explicitly inform the driver that:

They have an immediate right to a second test.
The second test will be conducted using a different Approved Screening Device.
If the second test yields a lower result, the lower result takes precedence, and the NAP will be cancelled immediately.

4. Election or Waiver

The driver must then be given a clear opportunity to either request the roadside appeal or voluntarily waive it.

5. Administration of the Second Test

If the driver requests the appeal, the officer must promptly conduct the second test using a second, distinct ASD. If the second test fails, the NAP is confirmed. If the second test yields a pass or a lower reading, the officer must cancel the NAP on the spot.

In Lawrence v Alberta (2024 ABCA 361), the Court of Appeal emphasized that the statutory scheme prescribes this exact order of operations. An officer cannot shortcut the process by demanding a second breath test before properly issuing the written NAP and providing the required advice. Performing a second test out of order deprives the driver of their statutory protections under the Traffic Safety Act.

What Information Must Police Provide About a Roadside Appeal?

Police officers cannot simply hand you a device and tell you to blow again without context. For a roadside appeal to be legally valid, the driver must receive adequate information to make an informed, voluntary decision about whether to exercise or waive their rights.

Under section 4(e)(v) of the SafeRoads Alberta Regulation, an administrative penalty must be cancelled if the officer failed to advise the driver in writing of their right to a roadside appeal under section 88.11 of the TSA, and the driver was unaware of that right.

In Van der Meulen v Alberta (Director of SafeRoads), 2024 ABKB 172, the Court of King's Bench addressed the standard of information police officers must provide. The Court held that, at a minimum, an officer must provide information that is equivalent to what is statutorily set out in the Notice of Administrative Penalty itself.

Specifically, officers are required to provide clear information showing that:

The right is immediate: The driver must elect to take the second test right away at the scene.
A different device is used: The second test must be administered using a different Approved Screening Device to rule out mechanical error or calibration faults in the first unit.
The lower result governs: The driver must understand that if the second test yields a lower result, the lower reading prevails, resulting in the complete cancellation of the sanctions.
Written and oral components are both necessary: Providing only oral advice without written notice, or providing written notice without giving the driver a meaningful opportunity to read and understand it, violates the statutory standard.

What Happens If Police Do Not Follow the Proper Procedure?

If an officer rushes the process, fails to explain that a different machine will be used, or fails to explain that a lower result cancels the penalty, the driver's ability to make an informed choice is compromised. When officers fail to provide this essential information, the driver has strong legal grounds to challenge the IRS penalty before SafeRoads Alberta.

How Can Hoare Claxton Help With a SafeRoads Alberta Review?

When reviewing an IRS (or NAP), SafeRoads Alberta adjudicators must examine whether the officer complied with the mandatory requirements of the Traffic Safety Act and SafeRoads Alberta Regulation. If your impaired driving lawyer demonstrates that any of the following procedural failures occurred, the adjudicator must cancel your administrative penalty:

Failure to Provide Written Notice: The officer conducted a second test or demanded a waiver before serving the physical NAP documents (Lausen, 2023 ABCA 176).
Failure to Inform of Rights: The officer failed to advise you of your right to a second test both orally and in writing.
Failure to Use a Different Device: The officer used the same ASD for both tests instead of getting a second, separate device.
Lack of Informed Understanding: The officer provided misleading, incomplete, or confusing advice regarding how the second test works or what its outcomes mean (Van der Meulen, 2024 ABKB 172).
Out-of-Order Execution: The police inverted the statutory steps set out in section 88.11 of the TSA (Lawrence, 2024 ABCA 361).

When an adjudicator cancels a Notice of Administrative Penalty, all administrative sanctions are revoked. Your driving privileges are restored immediately, your administrative fine is wiped out, and any vehicle seizure fees must be refunded by the province.

This article only analyzes some of the grounds you may have to cancel a Notice of Administrative Penalty. Navigating a SafeRoads Alberta review requires a thorough understanding of administrative law, technical police reports, and binding Court of Appeal precedent. Unlike traditional criminal court cases, SafeRoads Alberta reviews are decided almost entirely on written evidence, police dashcam and bodycam footage, and sworn affidavits, often without live oral testimony.

At Hoare Claxton, our team of dedicated impaired driving lawyers brings deep expertise to challenging Immediate Roadside Sanctions across Calgary and Southern Alberta.

Key Takeaways

A Roadside Appeal is a Statutory Right: Under section 88.11 of the Traffic Safety Act, drivers who blow a "Fail" have an immediate right to a second test on a different screening device.
Order of Operations Matters: Police must serve the written Notice of Administrative Penalty (NAP) before administering the roadside appeal or accepting a waiver (Lausen v Alberta).
Police Must Provide Clear Information: Officers must advise you orally and in writing that a second test uses a different device and that the lower result governs (Van der Meulen v Alberta).
Cancellation of Sanctions: If the second test yields a lower result or if police fail to follow mandatory statutory steps, the NAP must be cancelled.

Contact Hoare Claxton

If you or your loved one received an Immediate Roadside Sanction, contact Hoare Claxton in Calgary at (587) 355-8889 or via our contact form. Our experienced criminal defence team will immediately evaluate your roadside stop, preserve your appeal rights, and fight to protect your driving privileges.

Disclaimer: This post is for informational purposes only and does not constitute legal advice. Consult a qualified lawyer for your specific situation.