Welcome to British Columbia’s only weekly DUI law update newsletter. This newsletter contains the most cutting-edge information, the newest case law, and helpful practice tips for DUI defence in BC.
Authored by Kyla Lee, BC’s Impaired Driving Update is released weekly on Thursdays.
What’s inside:
- Impaired Driving Defence Tip
- IRP of the Week
- Decision of the Week
- Kyla’s Insight
- Resources
1. Impaired Driving Defence Tip
If your jurisdiction allows it, download or otherwise obtain copies of the recordings of the court proceedings. This can be useful to you in many ways. It can be useful if you have a continuation date coming up to refresh your memory about what was said. Getting court transcripts is also helpful for this. But listening to the recording also helps to show the tone and manner in which a witness responded to questions, which can often communicate as much as the actual words used by the witness themselves.
More than that, the recordings of your court proceedings, your cross-examinations, your submissions, and so on are something that you can use to identify areas for improvement in your approach. Practicing law is a constant game of learning and attempting to improve your skills. Even though it can be uncomfortable listening to how you sound when conducting a cross-examination, how forceful you are during submissions, how quickly you respond to questions, the cadence, volume, and tenor of your voice can all help you to improve and become a better courtroom advocate.
2. IRP of the Week
The applicant was issued a 90-day immediate roadside prohibition for failing an approved screening device test. The applicant was stopped leaving the parking lot of a licensed establishment when questioned by the police about the time of his last drink. The police alleged the applicant responded that it was “at the bar.” The officer did not ask any further information from the applicant as to whether it had been within the preceding 15 minutes or to try to pin down the timing. An approved screening device test was administered a few minutes after the traffic stop and it registered a failed reading. The applicant declined a second test on appeal of the prohibition.
The applicant argued that the approved screening device test result was not reliable. He put forward evidence in the form of an affidavit to demonstrate that he had finished his last drink only minutes before he left the bar. He also disputed that he told the officer simply that his last drink was at the bar and clarified that he’d said it was a couple of minutes earlier at the bar.
Regardless of the dispute, Kyla Lee argued that the surrounding circumstances of the applicant having an odor of liquor on his breath, leaving a licensed establishment, and an admission of consumption in that establishment created more than a reasonable possibility that residual mouth alcohol could contaminate the results. The adjudicator agreed.
The prohibition was revoked.
3. Decision of the Week
This week’s case focuses on the accused’s understanding of the right to counsel, specifically involving accused persons who may have a language barrier.
In R. v. Cui 2026 ONCJ 319, the court found that the police seriously breached the right to counsel while carrying out an impaired driving investigation. Mr. Cui was found in the driver’s seat of a severely damaged vehicle outside a school. The car was missing its front driver-side wheel, the airbags had deployed, and there was blood on the driver’s side. Security footage showed Mr Cui arriving at the scene, where he stumbled and fell upon exiting the vehicle before returning to sit inside for three hours.
When emergency services arrived, witnesses noted a strong odour of alcohol, slurred speech, and confusion, leading police to question him for six minutes in an ambulance without providing Charter cautions before eventually arresting him for impaired operation. The questions asked by the police included detailed questions about where he was going; where he was coming from; the purpose of his trip; and the route he took. The court found the questioning went well beyond the scope of questioning relevant to the officer’s duty to investigate an accident and rather pertained clearly to an investigation of impaired driving.
Regarding the accused’s right to counsel, the judge found that the police breached Section 10(b) by failing to ensure Mr Cui understood his rights in a meaningful and comprehensible way. The judge specifically noted that mastery of a language is not an all-or-nothing proposition. While Mr Cui could converse somewhat in English, the special circumstances of his heavy accent, his need for repeated questions, and his explicit mention of speaking Mandarin should have prompted the police to take further steps to confirm his understanding. Drawing from R. v. Ukumu, 2019 ONSC 3731, the court identified several objective factors as relevant to determining if a language barrier constitutes special circumstances. These are found at paragraph 47 of the judgment.
Excluding the breath samples, the court found the police seriously infringed the accused’s Charter rights. Specifically the court identified that the areas of law involved include understanding jeopardy and exercising the choice about providing incriminating information and meaningful access to counsel of choice
These are areas about which the police are expected to know their duties. The impact of the breaches was high because Mr. Cui was subjected to several minutes of questioning which led to inculpatory evidence and because he ended up receiving legal advice in a language he was unfamiliar with.
Although the court found that society’s interest in the adjudication of cases on their merits generally favours admission of the evidence, because there was a blatant disregard for ensuring that Mr. Cui understood his reasons for detention, his jeopardy, his rights, and could meaningfully exercise those rights, the court found society’s interests were best served by dissociating itself from the Charter-infringing conduct.
4. Kyla’s Insight
This case doesn’t say anything particularly new or substantially different about the law, but it is helpful as a tidy summary of the information police should be taking into account in determining whether the accused understands their rights and whether the accused should be given translation services. I always find a case with a helpful tidy summary of legal principles to be particularly useful in explaining them to a judge.
Although the section 24 analysis in this case is limited to three paragraphs, the decision cuts to the point. The overall reasoning about the significance of knowing the reasons for detention and having the opportunity to contact counsel is useful in future 24(2) analyses.
5. Resources
Want to know more about impaired driving and Immediate Roadside Prohibitions in BC? Here are some helpful resources:
The BC Motor Vehicle Act: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96318_00
Criminal Code Offences Relating to Conveyances: https://laws-lois.justice.gc.ca/eng/acts/c-46/page-46.html#h-121277
CanLII: https://www.canlii.org/
RoadSafetyBC: https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/roadsafetybc
6. Contact Us
The police have their experts. You should have yours.
Charged with impaired driving? Get the lawyer who literally wrote the book on it. Call Kyla Lee at Acumen Law today. Visit our contact form or call 604-685-8889 or email kyla@vancouvercriminallaw.com
7. Featured Firm
Featured Firm: Acumen Law Corporation
Based in Vancouver, Acumen Law Corporation is one of British Columbia’s leading criminal defence firms, recognized across Canada for its work in impaired driving law. The firm’s lawyers have successfully defended thousands of Immediate Roadside Prohibitions, criminal impaired charges, and driving suspensions.
Kyla Lee, a partner at Acumen Law, is widely regarded as a national authority on DUI law. She has authored multiple legal textbooks, teaches DUI defence across North America, and regularly appears in the media explaining developments in driving law.
Acumen Law is known for its deep understanding of both the law and the science behind impaired driving cases. The team approaches every file with meticulous preparation and a commitment to protecting the rights of drivers across BC.
