Legal Insights, Case Trends & Updates from Ziv Law Group
Rory Ziv, B.A. (hons), L.L.B., L.L.M.
Brett Leon Van Damme, B.A., J.D
May 22, 2026
This Week’s Highlights
• The splitting of a urine sample rather than the collection of two urine samples is sufficient. See Wending v Alberta (Director of SafeRoads), 2026 ABKB 142.
• Officers have a duty to orally inform Recipients of the Roadside Appeal under 88.1(5) of the TSA, even where written advice has been provided. See Schramm v Alberta (Director of SafeRoads), 2026 ABKB Docket 2041 16581 (unreported). See also Hynes v Alberta (Director of SafeRoads), 2025 ABKB 681 at para 21.
1. NAP Review
Wending v Alberta (Director of SafeRoads), 2026 ABKB 142
Wendling is concerned with what constitutes a Roadside Appeal when a urine sample is what is being analyzed. The Court determined that splitting the urine sample does not undermine the voluntariness of the appeal right under s. 88.11 of the TSA. (see para 31)
Facts
On April 15, 2025, Calgary police received a complaint of an individual smoking cannabis in the driver’s seat of a vehicle. A traffic stop was conducted, and the Recipient was arrested for impaired operation of a motor vehicle, and was taken to the police station.
At the station, Cst. Fuller read the Recipient a Drug Recognition Evaluation (DRE) demand and then Cst. Waiand conducted the DRE. The Recipient provided a urine sample, pursuant to the DRE demand. Once the DRE was completed, Cst. Fuller provided the Recipient with a NAP issued under 88.1(1)(a) of the Traffic Safety Act (TSA) for impaired operation of a motor vehicle.
Cst. Fuller then provided the Recipient with the Roadside Appeal form and the Recipient expressed that they would like to exercise the right to a Roadside Appeal. The officers explained to the Recipient that the appeal process would involve taking the urine sample provided and splitting it into two cups to be sent for testing. The Recipient did not understand how this constituted an appeal but did not ask for clarification.
The Recipient requested an oral review of the NAP and sought to cancel the NAP on the basis that the officer failed to provide him with an opportunity to a Roadside Appeal pursuant to TSA s. 88.11, which is a ground to cancel a NAP under s. 4(e)(vi) of the SafeRoads Alberta Regulation (SAR). The Adjudicator confirmed the NAP and the Recipient sought further judicial review.
Ruling
On Judicial Review, the Court points out that s. 88.11(2)(d) of the TSA does not expressly require that a roadside appeal involves obtaining a second sample from the Recipient. It states that when an appeal is requested, the Recipient must voluntarily attend with a peace officer to a designated place where the recipient must immediately “provide a sample of blood or urine that in the opinion of the peace officer is suitable for analysis, at the discretion of the peace officer.”
In this instance, the Recipient was informed by police of his right to a roadside appeal and that should the Recipient exercise it, his urine sample would be split between two cups and tested separately. After receiving this information, the Recipient voluntarily asserted their appeal right. The Court found that the urine sample being collected initially under a demand didn’t prevent the Recipient from voluntarily agreeing to use a portion of it for the Roadside Appeal.
Given that the voluntariness of the Recipient’s right to a Roadside Appeal was not undermined in this instance, the Court dismissed the application for judicial review and upheld the NAP.
Schramm v Alberta (Director of SafeRoads), 2026 ABKB Docket 2041 16581
Schramm is a Judicial Review of an Adjudicator’s decision to uphold a NAP in a situation where an officer failed to provide oral advice regarding the right to a voluntary Roadside Appeal test.
Facts
The Appellant sought judicial review of an Adjudicator decision confirming a NAP issued on September 28, 2024 for impaired driving. The Appellant sought judicial review on numerous grounds, the first of which being the only one considered. That ground was that the officer failed to discharge the duty under s. 88.1(5) of the TSA and as stated in Lawrence v Alberta (Director of SafeRoads), 2024 ABCA 361 at para 15 to inform the Appellant orally of their right to a voluntary Roadside Appeal. The Appellant did not contest receiving the written NAP and Roadside Appeal form and had time to review the documents. The sole issue with the Roadside Appeal advice raised by the Appellant is the lack of being informed of the Roadside Appeal orally by the officer.
The Appellant’s evidence is that after the initial FAIL blow, the officer told her she could appeal the result later. The officer then provided the Appellant with the NAP, Roadside Appeal form and Seizure Notice, without providing a verbal explanation. The officer did give the Appellant time to read the documents, but she did not have time to finish reading the documents before the officer returned with a second device. When the officer arrived with said device, the Appellant was offered an appeal.
The Appellant says they did not know what an appeal meant, had not read the Roadside Appeal form, and simply agreed to everything asked by the officer, including the direction to sign the Roadside Appeal form. The Appellant provided that the officer seemed agitated during the interaction and that they did not wish to anger the officer further by asking too many questions. The Appellant provides they did not know which document was the Roadside Appeal form and the officer indicated which one it was.
Ruling
The Court agreed with the Appellant that officers have a duty to disclose orally to a driver the right to voluntarily take a Roadside Appeal under 88.1(5) of the TSA. Speaking on the Lawrence decision, the Court makes the point that the protocol in Lawrence includes also being orally advised by the officer of the right to a roadside appeal. (Lawrence at para 15) While officers do not have to confirm a subjective understanding of the NAP, they do have to provide oral advice of the right to a voluntary second test under the Roadside Appeal.
The Court found that the Adjudicator overlooked whether the obligation of the officer to orally advise the Appellant of the voluntary nature of the right to a Roadside Appeal and whether the evidence discharged the officer of the duty of oral advice. (See para 32) Given these findings, the obligations of the officer were not met here and the Appellant’s ground to cancel the NAP had been met. As such, the Court cancelled the NAP.
2. Lawyer’s Corner
Wending
At the date of writing, Wending is under appeal to the Court of Appeal. This is an interesting case. Traditionally, the Criminal Code requires two separate samples to be taken. The writer always assumed, logically, that the TSA was written similarly and that the legislature’s intent under the TSA was for two different samples to be taken.
One question that may assist courts, but not necessarily be determinative, is whether there could be a significant variance between two different bodily samples. What does the scientific literature say, and whose onus will it be to demonstrate this?
Schramm
Schramm (unreported at date of writing, docket 240176581, May 6, 2026) is a classic application of administrative law in which form over substance matters. In this case, despite being served the NAP before providing a second sample, the officer failed to ORALLY instruct on the voluntary nature of the roadside appeal. (See paras 24, 27, 29). Also in the decision is reaffirmation that presuming officer reliability is barred, see Fish v Director, 2024 ABKB 213 at para 86.
Bonus Resources
- SafeRoads Alberta Portal: https://saferoads.alberta.ca
- Alberta Government – Impaired Driving Laws: https://www.alberta.ca/impaired-driving
- CanLII: Key Impaired Driving Cases in Alberta: https://www.canlii.org
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