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
Impaired driving cases are document-heavy. Between the various documents the police produce, it can be hard to keep track of all their different versions of events. For example, the 24-hour prohibition officer’s report and notice of prohibition may have some inconsistencies with traffic tickets and the notes for the traffic tickets.
The vehicle impoundment often contains a report to the Superintendent describing details about the interaction. There are documents prepared for the Superintendent of Motor Vehicles, the officers’ notes, the body-worn camera footage and transcripts, and the officers’ typed narratives. When it is difficult to keep all of these different documents in order and consistent, it can be helpful to make a running chart that you can include in your file. The chart includes important events and how they are documented in each piece of information, for example, the time of driving documented on a traffic ticket, a 24-hour prohibition, a 90-day prohibition, and the police disclosure for the criminal case.
By keeping a chart of the critical details, you can easily identify any inconsistencies. When it comes time to craft cross-examinations or prepare submissions to the Crown seeking a resolution, you don’t have to flip through hundreds of pages of paper to try to find exactly what you’re looking for.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for failing an ASD test.
The applicant described that she had been at a campsite with friends and consumed two shots of vodka, each between 1 and 1.5 ounces. Her second drink was roughly 2 hours before she was stopped by police.
The applicant was suffering from post-concussion syndrome at the time. This left her feeling nauseous, and she experienced regurgitation and acidic burping, which was aggravated by alcohol, coffee, exertion, and repeated bending over.
The applicant left the campsite roughly 90 minutes after finishing her last drink to purchase more alcohol for her friend, who had consumed too much to drive. On her journey, she was pulled over by the RCMP.
The applicant described that, at the time she was pulled over, she was experiencing ongoing regurgitation from the alcohol she had consumed earlier. An approved screening device demand was made and the applicant provided a sample that registered a fail reading after the first test. The applicant was given a second test, which also registered a fail reading.
Kyla Lee successfully argued that the applicant’s drinking pattern, which was corroborated by the people at the campsite, demonstrated she could not have exceeded 80 mg of alcohol per 100 mL of blood. The applicant was not dishonest at any point with police and her experience of burping and regurgitation was also corroborated by her friends.
The adjudicator agreed that the test results were not reflective of the applicant’s blood alcohol level and that she had presented sufficiently cogent, plausible, and credible evidence to demonstrate the ASDs were not reliable.
The prohibition was revoked.
3. Decision of the Week
In the case of Schuck v. British Columbia (Superintendent of Motor Vehicles), 2026 BCSC 1611, the petitioner, Andrew Schuck, sought a judicial review of an administrative decision upholding his 90-day immediate roadside driving suspension.
Schuck was drinking at a pub in Kitimat. A pub staff member called the police to report a potentially intoxicated driver leaving in a white rental truck, providing the vehicle’s licence plate. He was stopped on his way back to his hotel. The officer noted the smell of alcohol on Schuck’s breath. Schuck admitted that he had been drinking. The police demanded a breath sample. Schuck took two Approved Screening Devices tests, both of which registered a Fail. Consequently, Schuck was issued a 90-day driving suspension.
In the hearing, Mr. Schuck advanced several arguments. He pointed out a clear error in the police documentation. The officer’s narrative logged the pub staff’s tip-off call at 18:02—the exact same minute the officer claimed to have formed his own suspicion of intoxication. Schuck argued this impossible timeline fatally undermined the officer’s credibility and raised the possibility of mistaken identity.
He also raised the issue of the adjudicator’s treatment of his mouth alcohol contamination argument. Schuck asserted that the first test was administered at 18:05, just five minutes after he left the pub at 18:00. He argued this fell within the 15-minute window where residual mouth alcohol can falsely elevate breath readings, making the test unreliable.
Mr. Schuck claimed the officer administered the second test immediately after the first using the same physical device, violating statutory requirements under the Motor Vehicle Act (MVA) to use a different device.
The adjudicator accepted the officer’s evidence over Schuck’s and upheld the suspension. Schuck then applied to the Supreme Court of British Columbia for judicial review.
Schuck challenged the reasonableness of the adjudicator’s decision on several bases.
The Court dismissed Schuck’s application for judicial review, finding the adjudicator’s decision to be reasonable.
While the court agreed the narrative contained a clear temporal error, it held that the crucial factor was the consistent sequencing of events and observations. The truck’s unique description and licence plate matched the witness’s tip-off perfectly, making mistaken identity highly improbable. The officer’s handwritten notebook also provided a reliable contemporaneous timeline that was distinct from the flawed narrative.
Even if the first test carried a risk of mouth alcohol contamination, the second test was administered at 18:18. This was 18 minutes after Schuck left the pub, safely exceeding the 15-minute threshold. Under established law (McConachie), a driver is only entitled to one valid test result to uphold a prohibition; thus, the validity of the second test was legally sufficient.
The adjudicator reasonably rejected Schuck’s claim that the same device was reused immediately. The ASD manual and operational realities dictate that the device automatically powers down after displaying a result and cannot be immediately reused. Furthermore, the officer’s notes documented two distinct serial numbers for the two devices used. The sequence described by Mr. Schuck was reasonably found to be implausible in light of this fact.
4. Kyla’s Insight
For many people, pointing out a glaring time inconsistency in a police report seems like a guaranteed way to overturn a roadside driving suspension. However, the Supreme Court of British Columbia’s decision in Schuck clearly holds otherwise. Administrative tribunals and courts value logical sequencing over perfect clock times. I do find it a little rich because when it comes to applicant evidence the adjudicators never are this dismissive of ambiguity or inconsistency in favour of a logical account. But good luck pointing out pervasive differences in weighing of evidence, given that most cases are assessed individually.
To readers unfamiliar with judicial reviews, the decision may look like a glaring contradiction. In many instances, the Court openly agreed that several of the Adjudicator’s findings were unreasonable, highly improbable, and palpably wrong, yet it still upheld the decision.
Under the Vavilov framework, a court reviewing an administrative decision is not looking for perfection. Rather, it looks for justification, transparency, and intelligibility. Errors that are merely superficial or peripheral to the merits of a decision do not render it unreasonable; the flaw must be sufficiently central or significant to the outcome to justify overturning it.
In Schuck, the Adjudicator made a string of bad findings, but the Court determined they were ultimately distractions from the one core, legally sufficient fact that sustained the suspension. If these errors had been central to the outcome, the driver would have won.
Despite this, the decision survived because once the adjudicator reasonably rejected the fact that the second test was on the same device, the B.C. Court of Appeal’s decision in McConachie, a driver is legally entitled to a second test, but they are only entitled to one valid test result to uphold a suspension. Because the second test was administered at 18:18, it was conducted 18 minutes after Schuck left the pub and had his last drink.
Even if the Adjudicator’s theories about road-drinking and bill-paying were unreasonable, she acknowledged that the first test was potentially contaminated. She based her final decision on the second test, which was objectively outside the 15-minute contamination window and recorded on a different physical device.
In administrative law, you cannot win a judicial review simply by collecting a tally of tribunal errors. You must prove that the error is a load-bearing one. If the tribunal’s decision is supported by even a single, independent, and legally sound pillar—like a valid second breath test—the court will let the decision stand, palpable wrongness notwithstanding.
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.
