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
Reveal your disclosure carefully and listen carefully to what the officers actually testify about or indicate their opinion is. Specifically in the case of impairment, do they indicate in both the disclosure and their evidence in court that they believed the person was impaired in their ability to operate a motor vehicle? Do they indicate they believe they were impaired by alcohol, a drug, or a combination of the two?
Both the source of the impairment and what was impaired are as important elements as just that there were grounds to believe the individual was impaired. This is often something that can get missed in testimony with the speed of trials. When it comes time for the officer to articulate their opinion, paying close attention is critical.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for failing two ASD tests.
The applicant was pulled over for speeding. He displayed some indicia of alcohol consumption and admitted consuming alcohol the night prior. The officer read an ASD demand, and the applicant provided a sample registering a fail reading. After the first failed reading was obtained, the officer advised the applicant of the right to request a second ASD test, and the applicant exercised that right. The second ASD test was conducted on a device for which the calibration record showed it had expired two months prior to the investigation taking place.
On review, Kyla Lee successfully argued that the right to a second test must be a meaningful opportunity to change the apparent result of the ASD. Although there is case law from the BC Supreme Court and BC Court of Appeal suggesting that the driver is not entitled to do reliable tests, all of those cases were only decided in the context of a first unreliable test, with a presumptively reliable second test following it. The second test serves an important constitutional function in allowing the driver to have a corrective, which was recognized in the case law on two reliable tests. It would be inconsistent with both the intent and purpose of the legislation entitling a person to a second test to permit second tests on expired or otherwise unreliable devices. This is to stand simply because a first test has no apparent reliability issues.
The adjudicator agreed, and the prohibition was revoked.
3. Decision of the Week
In R. v. Serkissoon, 2026 ONCA 479, the Court of Appeal for Ontario allowed a Crown appeal from acquittals related to a fatal collision.
The respondent accelerated into an intersection to beat a yellow light, striking a left-turning vehicle and causing a fatality. Blood samples taken four hours later revealed a THC concentration of 5.2 ng/mL. The trial judge granted a directed verdict of acquittal on the impaired driving counts, ruling that the statutory presumption in s. 320.31(2) of the Criminal Code did not apply because the blood was seized via a s. 487 search warrant rather than a Part VIII.1 demand or warrant.
Given the margin of error inherent in the analysis of the blood sample result, there was a reasonable doubt that the accused exceeded the statutory legal limit.
The trial judge acquitted the respondent of dangerous driving, finding that while his driving was careless, it did not constitute a “marked departure” from the standard of care. This finding was based largely on the observation that the other driver may have been distracted and unexpectedly entered the intersection.
The Court of Appeal held that the trial judge erred in law by restricting the statutory presumption of accuracy. The Court noted that the plain text of s. 320.31(2) contains no language limiting its application to samples obtained through specific police demands.
By removing restrictive language found in the pre-2018 versions of the Code (which cited specific sections like s. 254 or s. 256), Parliament signalled that the presumption applies to any analysis of a person’s blood made by a designated analyst. Even if the seizure occurred under a warrant, the samples were seized for the purposes of proving a Part VIII.1 offence, satisfying the statutory context.
The Court also set aside the dangerous driving acquittals, identifying a significant error in the mens rea analysis. The trial judge erred by focusing on the other driver’s distraction. The issue is not whether the specific collision was avoidable, but whether the respondent’s manner of driving created a foreseeable risk to the public. A judge must evaluate the full picture of the accused’s conduct to determine if it represents a marked departure from the conduct of a prudent driver.
While the Crown urged the Court to rule that “the result of an analysis” under s. 320.31(2) refers to the mean result (5.2 ng/mL) rather than the lower end of a confidence interval (4.8 ng/mL), the ONCA declined to decide this point, leaving it for the trial judge at the new trial.
4. Kyla’s Insight
I don’t have to like it and I don’t like it: the idea that the statutory presumption can continue to function because blood was seized pursuant to a warrant defeats the whole scientific underpinning of when presumptions otherwise apply. Presumptions are unconstitutional if they allow a person to be found guilty even where the trier of fact is left with a reasonable doubt.
In situations where blood samples are seized via a general warrant, as opposed to the specific blood-warrant provisions of the Criminal Code or pursuant to demand, the samples lack the same forensic integrity that exists and was contemplated when the presumptions were drafted. Samples in these circumstances are typically not seized in forensic tubes and therefore the preservatives contained in those tubes are not present. This can mean that the blood can ferment or putrefy, leading to unreliable analysis results. Blood tubes analyzed in these circumstances have often also previously been opened and previously been tested, increasing the risk of the introduction of volatile organic compounds and bacteria, which in alcohol cases can lead to the production of alcohol in the blood samples.
Even from a public safety perspective, this isn’t a great practice because there are situations in which the degradation of the sample over time (because it is not subject to forensic collection, storage, and handling procedures) can lead to a lesser result, preventing people who should be detected and charged from facing those charges. All around, this decision really goes to show how terrible the provisions of the Criminal Code are when it comes to properly balancing correct forensic science in breath and blood sampling procedures and an accused’s right to a fair trial.
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.
