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
- ADP of the Week
- Decision of the Week
- Kyla’s Insight
- Resources
1. Impaired Driving Defence Tip
It’s always useful to explore, in your cross-examination with a witness, whether there may be prejudices that are contributing to their interpretation of observations. Some prejudices can be obvious and some, of course, can be subconsciously held by officers.
For example, in circumstances where an officer alleges there was slurred speech, it may be useful to explore whether your client has an accent, whether the officer is from a different background, and whether there are prejudices about that individual and their culture that may have informed the officer’s interpretation of the speech
You also want to cross-examine the officer on their knowledge of the language that your client may speak. This is to flesh out whether the officer actually has the ability to distinguish slurring in an accent from one language when the officer is not a native speaker of that language.
2. ADP of the Week
The applicant was issued a 90-day driving prohibition for after providing samples in excess of 80 mg% into an approved instrument.
A police officer responded to a report of a possible impaired driver involved in an accident with multiple parked vehicles. Upon attending the collision scene, the officer identified the driver, who confirmed that he was the one driving the vehicle. The officer described the applicant as appearing tense on his face. The officer detected an odour of liquor emanating from the driver’s breath, but the driver told the officer his last drink had been 4 to 5 days earlier.
An approved screening device demand was read and the test registered a fail reading. The applicant was then arrested for impaired operation, had his Charter rights and warnings read, and was transported to the police detachment to provide breath samples. Two samples were obtained, which registered readings of 80 mg% and 90 mg%, respectively. Prior to the first sample being obtained, the instrument detected residual mouth alcohol contamination and aborted the test.
The applicant provided evidence in the review hearing to the effect that he had not consumed alcohol in the quantity that would have put him in excess of the legal limit. Specifically, he described that he had two 30 mL drinks of vodka. Kyla Lee successfully argued that the applicant had provided thorough, consistent, plausible, and cogent evidence of his blood alcohol level and consumption pattern. She argued that his evidence ought to be preferred over the evidence of the breath test results. Given the timing of the mouth alcohol flag, it did not make sense for there to be mouth alcohol and this signaled a likely malfunction with the instrument.
The adjudicator agreed and the prohibition was revoked.
3. Decision of the Week
In R. v. Roberts, 2026 ONCJ 524, the accused was acquitted of impaired operation and failure or refusal to comply with a breath demand. Constable Danyluk-Gough observed Mr. Roberts leave a pub. He followed Mr. Roberts’ vehicle for roughly 25 metres to an adjacent gas station, and initiated a traffic stop. Based on alleged physical unsteadiness, unusual driving, slurred speech, and an odour of alcohol, the officer arrested Mr. Roberts for impaired operation and issued a demand for an approved instrument breath sample. Mr. Roberts subsequently failed or refused to provide a sample in the breath room.
The only issue before the court was whether the arresting officer possessed the requisite reasonable grounds to make the breath demand.
The court ruled that the arrest and breath demand were unlawful. It found that Constable Danyluk-Gough lacked the objective factual foundation required to support a reasonable belief of impairment. While assuming the officer held a subjectively honest belief, the objective evidence from body-worn camera, dashcam, and breath room recordings thoroughly disproved his alleged observations.
Driving slowly for merely 25 metres within a gas station parking area was held to be unremarkable and insufficient to support reasonable grounds. Dashcam footage refuted the officer’s claim that Mr. Roberts continuously signalled while moving toward the air pumps. The officer conceded on cross-examination that he had not seen Mr. Roberts exit the bar.
Body-worn camera footage further contradicted allegations of physical unsteadiness. It showed Mr. Roberts walking normally without stumbling or staggering. While the officer repeatedly asserted that Mr. Roberts slurred his words, the audio revealed that Mr. Roberts was speaking with a distinct foreign or regional accent and a deliberate cadence. The officer admitted he did not consider this or even hear it. The Court cautioned that an accent must never be conflated with slurred speech, as doing so risks subjecting non-native speakers to heightened police scrutiny.
Although Mr. Roberts admitted to prior drinking and smelled of alcohol, evidence of alcohol consumption alone was insufficient to objectively establish reasonable grounds to believe his driving ability was impaired.
4. Kyla’s Insight
This decision demonstrates the importance to defence counsel of utilizing objective video and audio recordings to systematically impeach police observations regarding driving conduct, physical balance, and speech mannerisms. While officers cannot rely on observations made after a demand to retroactively justify the demand, there is no similar prohibition on defense counsel using information obtained after the demand (such as breath test room recordings) to attempt to impeach the officers’ claims about matters of speech, balance, or anything else in that vein.
Where an officer’s recorded observations are contradicted by video evidence, their claims regarding prior, unrecorded observations become inherently unreliable.
Defence counsel should be prepared to challenge reasonable grounds whenever police mischaracterize an accused person’s regional or foreign accent as slurred speech.
This case is also useful for addressing the importance of examining an officer on why they failed to employ a roadside Approved Screening Device, which requires reasonable suspicion at most, and the question the actions where the officer improperly bypassed that statutory step to execute an arrest without objective reasonable grounds.
Because evidence that falls short of reasonable grounds automatically fails to prove guilt beyond a reasonable doubt, establishing an unlawful demand effectively secures acquittals on both counts.
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.
