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
Keep your administrative driving prohibition and immediate roadside prohibition disclosure.
If you’re defending impaired driving cases in British Columbia, you’re going to receive disclosure from Crown counsel. That disclosure is covered by an implied undertaking that it be used only for the purposes of defending your client. It is technically the property of the Crown and is to be returned to the Crown once the case is complete.
The disclosure provided for an immediate roadside prohibition review hearing or an administrative driving prohibition review hearing is not subject to such requirements. It is provided to the individual for their application for review and is also disclosable under freedom of information requests.
Keeping track of various officers and their reports can allow you to cross-reference. If you receive a criminal impaired driving file from an officer for whom you have previously received IRP or ADP disclosure, you can review the disclosure to look for differences or similarities. If the case may be, that suggests the officer may be lacking credibility or working from some sort of a template and therefore undermining the reliability of their evidence.
Try not to think of your individual files just as files you’re defending but also as files that can be resources for you in the future if the time comes.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for refusing to comply with the ASD demand.
The applicant was pulled over after a broadcast about a possible impaired driver. The officer who stopped the applicant was a sergeant. The officer formed grounds to suspect there was alcohol in the body of the driver but did not read an approved screening device demand. Rather the sergeant radioed for two other officers to arrive on scene.
In the police evidence the sergeant did not provide a direct statement. The sergeant’s statement was summarized by the main investigating officer as indicating that he simply radioed for these other officers to arrive. The other officers, in their evidence, described arriving with an approved screening device.
Kyla Lee successfully argued that it was clear the reason for the delay was not some unusual circumstance that arose from the investigation. Not only was there no evidence of such but the specific indication that those officers arrived with an approved screening device and the fact that the individual who had been detained was detained for an impaired driving complaint from the outset supported that the only reasonable inference was the purpose of the arrival of the second officers was to bring an ASD. The sergeant did not make the ASD demand because he was not in possession of a device.
The adjudicator agreed, and the prohibition was revoked.
3. Decision of the Week
In R. v. Pestikov, 2026 ONCJ 412 the defendant was found not guilty of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit. While he was found in the driver’s seat of an idling vehicle with a blood alcohol level nearly double the legal limit, the court determined he was not legally operating the vehicle because he lacked care or control.
Police discovered Mr. Pestikov sitting in the driver’s seat of a Chevrolet Camaro parked in a Chevrolet dealership parking lot. The vehicle was idling. Earlier that evening, Mr. Pestikov had driven the car to the dealership (while sober) intending to leave it for servicing the next morning.
After parking, he called a friend to arrange a ride and a place to stay to cool off following an argument with his wife. While waiting for his friend, who had indicated he would be delayed by about two hours Mr. Pestikov walked to a nearby bar, consumed three to four alcoholic drinks, and then returned to the Camaro to wait for his ride. He started the engine solely to keep warm on a cold night.
The Crown conceded that Mr. Pestikov did not occupy the driver’s seat for the purpose of setting the vehicle in motion. He established on a balance of probabilities that his purpose was strictly to stay warm while waiting for his friend.
The Court found that although there is a statutory presumption that a person in the driver’s seat is operating the vehicle, Mr. Pestikov was not a driver as the risk he would set the vehicle in motion was not realistic. Mr. Pestikov had a corroborated, objectively concrete and reliable plan to be picked up by his friend. He even had a contingency plan to call an Uber if his friend failed to arrive. The vehicle had already reached its final destination—the dealership where it was to be serviced. There was no evidence that Pestikov had driven the vehicle after he began consuming alcohol.
Ultimately, the court held there was no concrete and tangible likelihood of the defendant changing his mind and driving, resulting in a reasonable doubt regarding care or control.
4. Kyla’s Insight
This is a helpful case on the principles of care and control where somebody is sleeping in the vehicle and has made arrangements. This issue comes up more often than I would like to see it because I think sleeping in the vehicle should be treated differently than a criminal offence. In the vast majority of cases it is people attempting to do the right thing, although often imperfectly.
In this case the accused did about as much as you could reasonably expect somebody to do. It also outlines for defence counsel a good roadmap of the type of evidence you should address.
Mr. Pestikov had provided evidence about why he was in the driver’s seat as opposed to any other seat, his purpose for parking the vehicle there, the timing of his consumption, the plans that he made, and the existence of a contingency in case his plan fell through.
It isn’t enough to say I had called for a ride. More is required in order to meet the burden of rebutting the inference that an intoxicated person in an intoxicated state will change their mind and decide to drive.
Look to this case as a helpful guideline for all the various factors that need to be addressed in a sleeping-in-the-vehicle-while-waiting-for-a-ride case.
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.
