Legal Insights, Case Trends & Updates from Rory Ziv
Rory Ziv, B.A. (hons), L.L.B., L.L.M.
March 27, 2026
This Week’s Highlights
- Where the NAP is not served prior to a roadside appeal election, and the evidence does not establish that oral advice from the officer provided enough information that the Recipient ought to have gained awareness of the right to a Roadside Appeal, the Recipient will be found to have been unaware of the right.
1. NAP Review
Cochlan (Re), 2026 ABSRA 446 (CanLII)
This matter concerns a NAP where the Recipient did not understand what the officer was saying to him, and the officer’s notes failed to detail when the physical NAP was provided to the Recipient. Since the NAP was determined to have been served at the conclusion of the investigation the Recipient was not provided their right to an appeal despite two samples being collected.
Facts
On March 7, 2024, around 1:37 am, Cst. Johnson, an officer with the Calgary Police Service initiated a traffic stop on the Recipient. As a result of the investigation, Cst. Johnson issued a NAP to the Recipient for having a blood alcohol content of 80mg of alcohol in 100 ml of blood within 2 hours after ceasing to operate a motor vehicle.
The police evidence is that after the initial ASD ‘Fail’ result, Cst. Johnson informed the Recipient that they would not be charged criminally but they would be proceeding with IRS sanctions. Cst. Johnston printed the IRS documentation and read the NAP and roadside appeal form to the Recipient. He explained “what would happen if the Recipient requested for a second test,” and the Recipient stated, “yes I would like to do that”.
A second ASD was brought and at 2:18 am, the Recipient provided a breath sample that resulted in a fail. This led to Cst. Johnson explaining the suspension process and the period of vehicle seizure to the Recipient at least five times, but the Recipient appeared to struggle with the information and repeated the same questions. Cst. Johnson went through the paperwork with the Recipient and ensured he understood everything.
The Recipient’s submissions state that after the initial ASD ‘fail’, the Recipient was placed into the back of the police vehicle and the officers were in the front. The Recipient’s ability to hear the officers clearly was impacted by the officer’s position, the officer’s accent, and the glass separating the front and back of the vehicle. The Recipient stated that the officer did read something to him, but he was unable to fully understand and follow along with what was being read.
The Recipient provided that prior to the day of the occurrence, they had never heard of an IRS, did not know what a roadside appeal was, and when the officer informed him about it, he thought it was an opportunity to verbally re-state his case to another person and review the facts, but didn’t know exactly what was going to happen. The Recipient did not completely understand the penalties they were facing due to the IRS ‘fail’. After the roadside appeal, the Recipient provided that the officer explained the suspension process several times, drove him home and handed him some papers, including the NAP, as he was exiting the police vehicle.
Ruling
The Court found that the while the police evidence is that Cst. Johnson read the NAP and roadside appeal form to the Recipient after the initial ‘fail’, it does not clearly describe when the Recipient was provided with the physical NAP. The police notes specifically provide that Cst. Johnson served several documents upon the Recipient when dropping him off at home, including the NAP. The Adjudicator, based on their experience, found that officers use the term ‘served’ mostly to describe the phyiscal delivery of documents to a driver. Given this information and the Recipient’s version of events, the Adjudicator found that the NAP was only served on the Recipient when they were dropped off, and not sooner.
As such, the Recipient was not advised in writing of their right to a roadside appeal at the relevant time, that time being before he made an election regarding the roadside appeal. The Adjudicator also found that the Recipient was not aware of the right to a roadside appeal and that Cst. Johnson’s vague explanation as to what information was read to the recipient was inadequate to make the Recipient aware. The Adjudicator also noticed that the evidence indicates the Recipient struggled to process the information provided and kept asking the same questions.
Based on this, the Adjudicator found that on a balance of probabilities, the Recipient simply did not understand a breath test was being offered to him and he did not understand the penalties he was facing prior to his roadside appeal election. Given that the officer failed to advise the Recipient in writing to the right to a roadside appeal and the Recipient was unaware of that right, the Adjudicator found that the Recipient had established grounds to cancel the NAP.
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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Rory Ziv and Ziv Law Group are Alberta’s trusted impaired driving lawyers, focused on defending Immediate Roadside Sanctions (IRS) and criminal impaired charges across the province. Known for their deep understanding of both administrative and criminal impaired driving law, they deliver rigorous defence strategies and timely appeal filings.