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
A lot of people tend to give up once the certificate is in. They view the charter arguments for exclusion of the certificate from evidence as the crux of their entire case. Often times interviewing your client can reveal grounds on which the validity of the samples can be challenged if the certificate is ultimately deemed to be admissible.
The certificate, after all, is only evidence that is conclusive proof of a person’s blood alcohol concentration in the absence of evidence to the contrary. In all cases you should be asking your client for information about whether they were engaged in any burping, belching, vomiting, or regurgitation; whether they suffer from acid reflux; whether they are diabetic and if they have evidence about what their blood sugar levels could have been; whether they had any objects in their mouth that could interfere with the test, notwithstanding the technician’s claim they may have checked the person’s mouth in advance.
Scrutinize the detachment video for evidence of improper procedure, including a failure to check the mouth, as well as any behaviour on your client’s part that may appear as though they are burping or regurgitating. The defence must only raise an error of reality to the evidence to the contrary for the burden to then shift to the Crown to disprove it. Anything that can raise that error of reality should be explored in detail before simply folding your tent because the certificate was deemed admissible.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for failing two ASD tests.
The applicant was pulled over after being observed leaving the parking lot of a licensed establishment. Two approved screening device tests were done, with the second one 9 minutes after the traffic stop. The officer alleged in his report that the applicant indicated his last drink was half an hour earlier. In the officer’s narrative, however, he indicated this was only a partial answer given by the applicant and the complete answer was not provided for in the report.
The applicant argued that his test results were falsely elevated by residual mouth alcohol. Specifically he indicated that he had his last sip immediately before walking out the door. The applicant obtained security footage from the establishment he was at, showing him taking his last sip, walking out the front door and down the street to where his vehicle was parked. He was depicted in the video only minutes before he was stopped by the officer.
While the applicant did not dispute that he had not told the officer his last sip had only been minutes earlier, Kyla Lee successfully argued that the answer given by the applicant could not be taken to be an accurate to-the-minute estimate. Nobody intended to convey something false by admitting to consuming alcohol 30 minutes prior to a traffic stop. The applicant’s misunderstanding of the question about when he had his last drink in a situation of nervousness ought not to be held against him in a credibility assessment.
The adjudicator agreed, and the prohibition was revoked.
3. Decision of the Week
In Durocher v. R. 2026 QCCA 955, the Quebec Court of Appeal annulled a conviction for impaired driving based, in part, on how expert evidence was handled. Specifically the judge’s personal interpretation of video footage conflicted with the professional reconstruction.
At the trial, two key experts provided evidence suggesting the fatal collision between Durocher’s car and a moped was virtually unavoidable, regardless of the driver’s sobriety.
A reconstruction specialist performed a night-time simulation under similar conditions. He found it nearly impossible to distinguish the moped’s taillight because it blended into the lights of the vehicle ahead. He also noted the moped rider wore all-black clothing and that Durocher’s vehicle had mechanical defects including frosted headlights and a broken suspension that severely reduced visibility. The reconstructionist concluded that nearly 50% of drivers in the same situation would have had a rear-end collision.
A mechanical engineer confirmed these contributing factors and testified that the collision was a trap and virtually unavoidable.
The trial judge dismissed these uncontradicted expert opinions. Instead, he relied on his own impressions of surveillance videos from neighbouring buildings to conclude that the moped was clearly visible and that the accident was caused by Durocher’s impairment. He concluded that because the video showed the lead vehicle moving away from the moped, the lights could not have been confused.
The Court of Appeal ruled that the trial judge made a reviewable error by rejecting professional expertise in favour of his own subjective analysis of the footage. The surveillance videos offered a lateral view—the perspective of a bystander on the sidelines. In contrast, the expert reconstruction reflected the driver’s actual field of vision. The Court held that a lateral video lacks the quality and angle necessary to dismiss expert findings regarding what a driver could see from behind the wheel.
The judge rejected the confusion of lights theory because Durocher initially told a witness the moped’s light was off. The Court of Appeal found this irrational, noting that a driver who confuses two lights would logically believe one of them was not there.
While a judge is not bound by expert testimony, they must have a rational, evidence-based reason to reject it. By substituting his own layman’s interpretation of a side-view video for the technical analysis of a reconstructionist who actually sat in a car from the driver’s perspective the judge rendered an unreasonable verdict.
Ultimately, the Court of Appeal determined that because the judge improperly discarded evidence that suggested the accident might have happened to a sober driver, the conviction could not stand, and a new trial was ordered.
4. Kyla’s Insight
This case is a perfect example of the way in which, even though the test for causation has been changed under the new legislation (specifically that causation does not have to be the driver’s impairment but merely the driving itself), the driving evidence still should be scrutinized as closely as possible to determine its relationship to impairment.
Now be careful with this decision because the Court of Appeal does send it back for new trial on the basis of the trial judge applying the old legal test for causation. The treatment of the reconstruction evidence is a gift to the defence. Oftentimes the Crown is attempting to supplement their case and their arguments by using video evidence from doorbell cameras or business security cameras near the scene. In many instances reconstructionists are using this same evidence to help inform their opinions.
This case is a good starting point for fertile ground for cross-examination and challenge of any expert opinion that doesn’t separate conclusions drawn from the video. It’s also important to keep this case handy to caution a trial judge in cases where there is video evidence that doesn’t show the perspective of the vehicle on the roadway.
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.
