Legal Insights, Case Trends & Updates from Rory Ziv
Rory Ziv, B.A. (hons), L.L.B., L.L.M.
April 7, 2026
This Week’s Highlights
- Where officer details on an improper breath sample are insufficient, the ASD may, at least partially, form the basis for a refusal NAP. In such a situation, the calibration and maintenance dates with regards to the ASD must be provided to the Recipient.
- Where the totality of the evidence is insufficient to determine whether the Recipient’s attempts to blow were good faith and the evidence provides the officer’s instructions were inadequate, an Adjudicator may find that the officer failed to provide the Recipient with a reasonable opportunity to comply.
- Where a NAP is not provided until after a Recipient provides a roadside appeal breath sample the Recipient was not advised in writing of the right to a roadside appeal. Absent officer evidence to the contrary, the Recipient will also be seen as unaware of the right to a roadside appeal.
1. NAP Review
This matter is concerned with a NAP for refusing to blow. The Recipient eventually attempted to provide a breath sample but the ASD read the attempt as insufficient. The officer’s evidence did not provide details on the reason for the insufficiency reading and so the Adjudicator found the ASD, at least partially, formed the basis for the NAP. As such, calibration and maintenance dates are required to be provided to the Recipient. The officer did not provide any such records to the Recipient, resulting in the Adjudicator quashing the NAP.
Facts
On February 21, 2026, around 8:06 pm, Cst. Synnott, an RCMP officer, responded to a complaint of a possible intoxicated snowmobile driver on RR 112 near St. Paul, Alberta. Cst. Synnott’s investigation led to the issuance of a NAP to the Recipient for failing or refusing to comply with a demand to blow, knowing the demand had been made.
Cst. Synnott’s police report indicated that he suspected the Recipient of operating a snowmobile while impaired, as such, Cst. Synnott made an ASD demand, to which the Recipient responded “Sure, can I drink water?” Cst. Synnott advised the Recipient he did not have water to give him and a few minutes later, the Recipient said “I can’t blow into that”, indicating the ASD. Upon officer inquiry the Recipient explained that he hasn’t drank water for over two hours. He even asked if he could eat snow, and made it clear he was not outright refusing to reply.
The Recipient informed the officer that he had “less than five seconds in him” and the officer told him that was all that would be required. When the Recipient attempted to provide a sample, the ASD indicated insufficient flow and when the Officer asked if the Recipient wanted to try again, the Recipient declined the opportunity. This resulted in the officer issuing the NAP for refusing to provide a sample.
The Recipient’s evidence provides that his mouth was extremely dry to the point of having difficulty speaking. Additionally, he advised that he was a smoker for over 35 years and that he did not have great lung capacity. Further, he did eventually attempt to provide a sample, but it did not register the result. The Recipient does not recall the officer telling him what he did wrong and asserts that his breath sample was between three and five seconds.
Ruling
The Adjudicator found that, based on their experience, the evidence provided by an officer when a recipient provides an insufficient sample is typically more detailed than the matter at hand. For example, the officer may indicate that the illegitimate sample was caused by blocking the straw, sucking instead of blowing, or blowing lightly or too hard, resulting in the ASD failing to register an adequate sample.
The Adjudicator found that, lacking such details, their mind turns to the calibration and maintenance records for the device being used. The Adjudicator refused to see this as a straight refusal, given a sample was attempted. As such, the Adjudicator determined that the ASD, at least partially, formed the basis for the NAP, meaning 2(c) records are required. Cst. Synnott failed to provide the maintenance and calibration dates for the impugned ASD. Given these records were not provided, the NAP was cancelled pursuant to section 4(i)(ii) of the SafeRoads Alberta Regulation.
C00449223A Singh
Singh concerns a NAP for refusing to blow where the Recipient provided numerous samples, but could not provide a sufficient sample. The Adjudicator considers the totality of the evidence and determines that the Recipient’s attempts to provide a sample were genuine good faith attempts, but the Recipient did not receive adequate instructions or coaching on how to properly blow. This resulted in the Adjudicator determining that the Recipient had not failed or refused to comply with an ASD demand.
Facts
On March 1, 2026, around 1:05 am, Cst. Kumar, a Calgary Police Services officer conducted a welfare check at Sage Valley Park Northwest. The investigation led to Cst. Kumar issuing a NAP to the Recipient for failing or refusing to comply with a breath demand, knowing the demand was made.
Cst. Kumar’s evidence is that he was on patrol when interacting with the Recipient following a single-vehicle incident. Cst. Kumar detected a strong odour of alcohol on the Recipient’s breath and the Recipient admitted to consuming two shots of whiskey. The Recipient was subsequently detained and Cst. Kumar read an ASD demand to the recipient. The Recipient was provided with three opportunities to provide a breath sample, however all attempts resulted in an insufficient blow. Cst. Kumar then demonstrated how to provide a sample by doing so himself, resulting in a reading of “0”. After being shown how to blow, the Recipient tried six more times which all resulted in insufficient blows and no suitable sample was obtained as a result.
The Recipient provided an affidavit stating they were not provided with instructions on how to properly provide a sample, including how long or how hard to blow. The Recipient advised that during their first attempts, they blew into the device and stopped when it beeped, believing that to be the signal that the required breath was obtained.
The Recipient provided that he only understood those blows were not long enough after the officer demonstrated. After the demonstration, the Recipient adjusted his efforts and began taking deep breaths and blowing as long and as hard as he could, only stopping when the device was removed from his mouth. The overall position of the Recipient is that they attempted to comply throughout the process and never intentionally interfered with or outright refused to provide a sample.
Counsel for the Recipient argued that the evidence does not establish that the Recipient failed or refused to comply with the breath demand. Counsel argues that the inability to obtain a sample in this instance resulted from deficiencies in the breath testing procedure. The police evidence does not set out what specific instructions were provided to the recipient in this instance. It was also argued that the cold weather conditions may have impacted the Recipient’s ability to provide a sample.
Ruling
The Adjudicator accepted the Recipient’s evidence supports their position of attempting to comply and adjusting efforts based on what was observed in the demonstration. However, the Adjudicator was unsatisfied that the demonstration alone provided clear and sufficient instructions in the circumstances. The Adjudicator found no evidence that the Recipient was expressly directed on the key requirements of providing a breath sample or even describing what specific directions were provided to the Recipient.
In consideration of the totality of the evidence the Adjudicator simply was not satisfied that the Recipient failed to make genuine good faith attempts to comply. The Adjudicator also considered the weather conditions as part of the overall context in assessing whether the Recipient’s attempts were genuine.
As such, the Adjudicator found that there was insufficient evidence to support that the Recipient failed or refused to comply with the breath demand. The Adjudicator found that the Recipient’s failure to provide a sample was due to Cst. Kumar’s failure to provide the Recipient with a reasonable opportunity to comply with the demand.
As a result, the NAP was cancelled under section 4(i)(iv), the Recipient, knowing a demand had been made, did not fail or refuse to comply with the demand.
C00449260A Neels
This review concerns a NAP and subsequent roadside appeal in which the physical NAP documentation was not provided to the Recipient until after they provided an appeal breath sample. Given the totality of the evidence, the Adjudicator was not satisfied that the Recipient was advised in writing or aware of the right to a roadside appeal.
Facts
On March 1, 2026, around 2:07 am, Cst. McCarthy, a Lethbridge Police Service officer, conducted a traffic stop on the Recipient at 11 Ave South, in Lethbridge, Alberta. The stop resulted in Cst. McCarthy issuing a NAP to the Recipient for impaired operation. The Recipient sought a review under the grounds that the Officer did not advise the Recipient in writing of the right to a roadside appeal and the Recipient was unaware of that right.
Police evidence indicates that Cst. McCarthy was watching the parking lot of the Top Hat establishment when he saw a man and woman get into a Silverado truck with the man getting into the driver’s seat. Cst. McCarthy observed trhe truck beign driven into an alley and followed it. He lost sight of it momentarily but located it again on 11 Avenue South, pulled off to the side of the road. At this point Cst. McCarthy activated his emergency lights and conducted a traffic stop.
As Cst. McCarthy approached the vehicle, he observed the two occupants changing places. The woman was now in the driver’s seat and the man, who he saw get into the driver’s seat at the Top Hat, was now in the passenger seat. The man, who ends up as the Recipient, was noted to be extremely slow and lethargic with upper body movements, his face and eyes were “droopy”, he was squinting at the officer, his eyes were blood shot, and he was speaking in very slow, slurred speech.
Upon asking for vehicle registration and insurance, Cst. McCarthy noted the Recipient had “extremely diminished fine motor skills” and noted that the Recipient’s breath smelled heavily of alcohol. At this point, Cst. McCarthy formed the opinion that the Recipient’s ability to operate a motor vehicle was impaired by alcohol and arrested him at 2:09 am.
After police queries occurred, Cst. McCarthy decided to proceed with an IRS and informed the Recipient they were no longer under arrest, but were being detained. At 2:25 am, Cst. McCarthy states he served the Recipient with the NAP and seizure notice. As he was serving these documents, the Recipient asked him repeatedly what he had done, why he was there, and what was going on. Cst. McCarthy provides he informed the Recipient roughly six times why he was arrested and where he had come from. Cst. McCarthy provided that he was eventually able to “fully and thoroughly explain the documents” to the Recipient.
Cst. McCarthy advises that the Recipient was provided with the roadside appeal, and that it was read “verbatim” to him and explained in “layman’s” terms. The Recipient indicated he wanted the roadside appeal. At approximately 2:33 am, the Recipient provided a suitable sample into ASD #253073, resulting in a “Fail” reading.
The Recipient’s evidence, presented in an affidavit, indicates that when he was under arrest in the back of the police vehicle the officer informed him that he was no longer under arrest however the handcuffs were not removed. He was unsure of whether he was still under arrest given he was still locked in the back of the police vehicle.
The Recipient further states that the officer printed off some papers and began explaining them. The Recipient submits they were confused as to why they were still in handcuffs in the police vehicle and was asking why he was there and what was going on. The Recipient states the police kept telling him he was under arrest for impaired driving, but he had also told him he was not arrested anymore. The officer explained the documents through the plexiglass divider between the front and back of the police vehicle and the Recipient had a hard time understanding him, and he was unable to read the documents from where he was in the back seat. The Recipient was not handed any documents at this time, nor could he have been, as he was still handcuffed.
The Recipient provides that the officer informed him of the Roadside Appeal but he was unsure of what that meant given he had not provided a breath sample yet. The Recipient says he was asked if he wanted to “blow again” which did not make sense given there was no initial blow. Regardless, the Recipient agreed to the appeal in the hopes that it would turn out all right. When he provided the breath sample and was informed of the “Fail’ reading, he was then released and received two further traffic tickets. He was removed from the police vehicle and the handcuffs were removed, he was given documents and then free to leave.
Ruling
In making a decision the Adjudicator considered the totality of the evidence before them. They considered that the Recipient was handcuffed in the back of the police vehicle when the officer relayed information from the NAP, which was difficult to hear due to the divider. Neither the officer or Recipient advise as to what information was provided to the Recipient at this time, but the Recipient has indicated that it was difficult to hear the officer and he wasn’t given any documents to read. The Recipient indicates they were handed documents after the appeal when they were being released.
The Adjudicator was satisfied that the officer advised the Recipient orally and by way of the roadside appeal form that he could provide a breath sample for an appeal. However, the Adjudicator found that, while the NAP was created and the officer may have referred to it, Cst. McCarthy’s written submissions are insufficient to support that he advised the Recipient of the NAP or issued the NAP prior to the Recipient providing the roadside appeal breath sample. As a result, the Recipient could not have been fully aware of the consequences they were facing.
The Adjudicator found that, while the roadside appeal form was useful, it failed to inform a Recipient of the consequences they are facing and that they are in receipt of an administrative penalty. That information provides context to the information provided on a roadside appeal form regarding the provision of a sample and the potential benefits.
In consideration of all the relevant circumstances, the Adjudicator found that Cst. McCarthy’s written and oral advice were simply insufficient in bringing awareness of the right to a roadside appeal, such that the Recipient could make an informed choice. As such, the Adjudicator found that the Recipient was not advised in writing or aware of the right to a roadside appeal. As such, the NAP was cancelled pursuant to section 4(e)(v).
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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