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
You can always bolster your requests for disclosure with Freedom of Information requests. There’s no reason to rely solely on the Crown’s Stinchcombe obligations and the need to make an O’Connor application when a lot of material is going to be available through ordinary channels.
Investigating issues you may suspect are systemic with the forensic laboratory or police practices, as well as policies used by police or even historical inaccuracy of screening devices and approved instruments, can all be done through the effective use of a Freedom of Information request. Realistically if your matter is going to trial, your trial is going to be scheduled well beyond the 30-day response time for an FOI. This gives you ample opportunity to seek out relevant material and subsequently bring it to the Crown’s attention without the need to lay the evidentiary foundation you would otherwise have to use to meet the requirements in the Criminal Code.
This is particularly so when seeking disclosure of evidence related to the approved instrument, which typically must be obtained through the Criminal Code’s highly restrictive disclosure regime. You can sidestep these complex obligations by working outside the Criminal Code and within provincial and federal privacy laws instead.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for failing two ASD tests.
The applicant was stopped after leaving a pub. The officer observed the applicant pull out of the parking lot of the pub and alleged the applicant had sat waiting to make a left turn for several minutes. This is despite the fact that the applicant was first observed one minute before the officer formed the suspicion.
After the applicant successfully executed a left turn across traffic, he was stopped by police. When questioned about alcohol consumption, the applicant admitted having his last drink ten minutes earlier. The officer waited five minutes to administer the approved screening device test, relying on the ten-minute estimate and adding the exact amount of time necessary to make fifteen minutes. A second test was administered after the first test. Both tests registered fail ratings.
On review, the applicant argued that his last drink had been fewer than ten minutes before he was stopped and that his answer to the police was a mere estimate with a several-minute margin of error. The applicant also pointed out that the officer’s evidence in relation to the driving behaviour was inconsistent with logic. The applicant managed to obtain security footage from the pub showing not only that he had his last sip of beer four minutes before pulling out of the parking lot but also that he awaited one minute and fifteen seconds to make his left turn. During that time there were no breaks in traffic where it would have been safe to execute the turn.
Kyla Lee successfully argued that not only did the officer’s procedures clearly make mouth alcohol a concern (as the officer ought to have waited the full fifteen minutes, knowing that ten minutes ago was not an accurate-to-the-minute estimate), but that the applicant had not only carried his case on a balance of probabilities but proved beyond any doubt that his last drink was fewer than fifteen minutes from both tests. The adjudicator agreed.
The prohibition was revoked.
3. Decision of the Week
The case of R. v. Caschera 2026 ONCJ 379 involved charges of operating a motor vehicle while impaired by drugs. The incident was initiated by a 911 call from a civilian, who reported a vehicle driving erratically and crossing double lines. Officer Peddie located the vehicle and observed it moving between lines and leaving a signal light on for an extended period. Mr. Caschera exhibited slow, sloppy movements and had pinpoint pupils. A second officer observed that the accused appeared sleepy and had a raspy voice. During subsequent sobriety tests and a search, Mr. Caschera’s lethargy was so pronounced that he struggled to stay awake and nearly fell over.
The Court found that much of the evidence presented by the Crown was frail at best. The civilian witness could not identify who was driving during the initial report or provide a precise time for his observations, rendering that evidence speculative. Officer Peddie’s account of the driving behaviour did not describe the lane variations as extreme or provide sufficient detail to establish a marked departure from normal driving. A significant issue arose regarding the expert testimony; while the Drug Recognition Evaluator (DRE) opined that Mr. Caschera was impaired by cannabis and a narcotic analgesic, a toxicology report later confirmed that no cannabis was present in his system. This discrepancy led the court to question the accuracy and subjective nature of the DRE’s observations.
Although toxicology reports confirmed the presence of cocaine breakdown products and buprenorphine—the latter of which Mr. Caschera explained was part of a prescribed Suboxone program—the court had to determine if his condition was caused by drugs or extreme exhaustion. Mr. Caschera testified that he had only slept three to four hours over the previous two nights due to his work as a restaurant owner and his struggle with sleep apnea. While the defendant’s behaviour was consistent with the crash phase of cocaine use, it was also consistent with simple fatigue.
Given the inconsistent drug findings and the plausible explanation of sleep deprivation, the court was left with a reasonable doubt as to whether the impairment was legally attributable to drugs.
4. Kyla’s Insight
This case is a great example of the importance of attacking the opinion of the DRE on the incorrect calls. The criminal code presumption continues to apply so long as the blood or urine analysis matches what is found in the subject of the DRE’s evaluation. Realistically the value of that evidence is undermined by incorrect determinations. A presumption only applies insofar as there is no evidence to the contrary. In a case like this the evidence to the contrary clearly comes from the incorrect determination.
Taking this decision alongside the Wilson decision that we discussed a few weeks ago can help to show that the results are not sufficiently reliable to engage the statutory presumption and also raise concerns about confirmation bias and tunnel vision.
Historically there hasn’t been a lot of good law on the DRE evaluations but with this case and Wilson it seems that the tide is in fact turning on this issue.
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.
