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
Don’t get confused between the amendments made to the Criminal Code in relation to the over-80 mg% offense and the impaired driving offence.
When Parliament amended the Criminal Code in 2018 to effectively prohibit post-driving consumption or the rising BAC defence, it did not make a corresponding amendment to the Code. That amendment would have served to make it a crime to be impaired by alcohol or a drug within 2 hours after ceasing to operate a vehicle.
This can be beneficial in a number of ways. For example, if there are open liquor containers in the vehicle, that certainly can potentially give rise to arguments in relation to post-driving consumption, depending on what your client has to say. Those containers also raise a rising BAC defence in terms of an issue of impairment that may be detected later on detachment video.
You can argue that symptoms displayed later on in the investigation are a result of impairment that didn’t exist at the time of driving but began to exist during the course of the investigation (due to the absorption of alcohol into the bloodstream). This argument is obviously risky in the context of a case where suggesting post-driving consumption doesn’t come along with an explanation for the over-80 through testimony by your client. In cases of refusal or straight impaired, however, it can certainly be helpful.
Remember that your client only has to raise a reasonable doubt about whether they were impaired at the time of driving. There is no corresponding burden on your client to adduce evidence showing that they weren’t impaired at the time of driving but became impaired later due to alcohol consumed at a time when they didn’t have reason to believe they would be given a breath test.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for refusing to provide samples into an approved screening device.
A witness called the police to report a possible impaired driver. The witness followed the driver into a parking lot, where he remained until police arrived. While waiting for police, the witness saw the driver exit the vehicle and exhibit indicia consistent with impairment by alcohol.
The first officer on scene was a sergeant. He spoke with the applicant and detected an odour of liquor emanating from the vehicle, as well as empty beer cans within reach of the driver. The sergeant formed a suspicion that the driver was impaired by alcohol. Following this, two other officers arrived on scene and took over the impaired driving investigation. One officer obtained a witness statement, while the other officer spoke with the driver. She detected an odour of liquor on his breath and observed balance problems and confusion. The officer formed a suspicion that the driver had alcohol in his body.
At this time, the sergeant requested that members attend the location with an approved screening device. Twelve minutes after the suspicion was formed, shortly before the approved screening device was brought to the scene, the officer read the approved screening device demand. Two further officers arrived on scene in response to the request for an approved screening device to be brought rather than administer the test. Immediately upon their arrival, one of the two further officers began to question the driver about the timing of his alcohol consumption and other possible issues that could have contaminated the approved screening device test result. This was despite the fact that the amount of time that had now elapsed was well beyond the 15 minutes during which any contamination could have affected the result. As such, there was no reasonable basis to believe any false positive reading could occur.
The applicant argued, through his lawyer Kyla Lee, that the approved screening device demand was not valid. It was completely unlawful for the officer to have made the demand when she was not in possession of an approved screening device.
It was also poor police practice for two officers to respond to a call to assist in an impaired driving investigation made by a sergeant who himself was responding to a call about a suspected impaired driver. Yet none of those officers were equipped with an approved screening device. This was a clear case of delay caused by police under-resourcing.
Matters of practical efficiency and utilitarian considerations do not justify delay in reading approved screening device demands or administering tests. The 12-minute delay before the demand was read was unjustified and unexplained. Further, the delay after the demand was read and after the device arrived on scene was also unlawful.
Although, in ordinary cases, it may be necessary to question somebody to rule out mouth alcohol contamination or contamination from other interfering substances, the length of time the applicant had been in police custody meant that none of these substances could have affected the result. The questioning therefore did nothing more than delay the administration of a test that was already unlawfully delayed, perpetuating the significant delay problem.
The adjudicator agreed and the prohibition was revoked.
3. Decision of the Week
In R. v. Palacios 2026 ONCJ 564, the accused was pulled over by Peel Regional Police Constable Satino. The officer claimed he initiated the stop because Mr. Palacios ran an amber light. However, during trial, the judge found that body-worn camera footage, engineering standards, and basic physics completely dismantled this claim.
Calculations proved the officer’s timeline was physically impossible—requiring either an amber light lasting 12 to 16 seconds or a vehicle speed of 152 km/h in a 60 km/h zone. The court ruled that the alleged traffic violation was a deliberate lie used as a false pretense to hide that the officer was actually conducting a covert criminal sobriety investigation. This deliberate deception constituted the first of two breaches under Section 10(a) of the Charter regarding the right to be informed of the true reasons for detention.
The officer exacerbated this breach during the arrest itself by brushing off Mr. Palacios’ questions about his detention with comments like “we will explain everything afterward” and later telling him in the cruiser, “it is because you are too drunk that you don’t understand.”
One of the most extraordinary aspects of the case was Constable Satino’s refusal to administer an approved screening device (ASD). Despite ordering his partner to retrieve an ASD from the police vehicle, Constable Satino did not use the device.
When pressed in court as to why he did not demand a breath sample on the ASD, the officer offered a bizarre rationale, asserting that he lacked the “cold hard evidence” required for an ASD demand—which he claimed required extreme indicators like slurred speech or open alcohol containers in the vehicle. When defence counsel noted that the odour of liquor on a driver’s breath is the textbook legal basis for an ASD demand, the officer insisted that an odour of liquor did not create reasonable suspicion because it could merely be “mouthwash” or a “debilitating disease.” The Court labeled this explanation “absurd,” noting that the officer had effectively turned legal standards upside down by setting a higher evidentiary threshold for a minor roadside screening test than for a full criminal arrest.
By bypassing the standardized ASD procedure, the officer gave himself free rein to subject Mr. Palacios to unauthorized, improvised field “tests,” including a covert “multitasking” trick while asking for documents and ordering him to walk along an elevated concrete median directly adjacent to live traffic.
The court found that these actions resulted in severe constitutional breaches across Sections 9, 8, and 10(b) of the Charter. Under Section 9, the arrest was found to be arbitrary because the officer’s testimony regarding driver behaviour, seatbelt handling, and field tests was thoroughly discredited or contradicted by video footage, leaving the Crown unable to prove that the officer possessed honest subjective grounds for arrest.
Because the arrest was unlawful, the subsequent breathalyzer demand constituted an illegal search under Section 8. Further, the court identified a egregious breach of Section 10(b) regarding the right to counsel. After rights were translated into Spanish, Mr. Palacios requested to call his wife. He asked, “Who is going to answer the phone right now?” Rather than facilitating his right to legal counsel of choice or explaining how to reach a lawyer after hours, Constable Satino repeatedly interrupted, aggressively insisted strictly on “yes or no” answers, prevented the interpreter from translating Mr. Palacios’ full responses, and funnelled him exclusively toward Duty Counsel.
Applying the framework from Grant, the Court concluded the officer’s conduct represented a deliberate, interconnected series of breaches occurring over less than fourteen minutes. The court held that admitting breathalyzer readings cherry-picked from a sea of unreliable evidence and tainted by widespread officer misconduct would bring the administration of justice into disrepute.
4. Kyla’s Insight
The first thing I think when I read this decision is that I would have loved to have been a fly on the wall during the cross-examination of this officer. I don’t know whether defense counsel was giddy at how absurd some of the officer’s questions were and how intractable, to the point of lacking credulity, the officer was, or whether it was so surreal that counsel was flabbergasted. I know my emotions reading this decision waffled between the two.
This case serves, though, as an excellent example of counsel’s work in cross-examining an officer about each point. Things like officers’ claims of performing these divided-attention tasks often go unchallenged in cross-examination. Frankly, it makes logical sense that asking somebody to do something while answering questions does give a basis to assess their ability to multitask.
The judge in this case makes a very good point about, first of all, the lack of standardization in any testing for multitasking and the fact that doing so is less a test and more a trick. The type of task being performed, the questions being asked during that task, and how those questions are being asked are also relevant to whether this is truly a problem with the ability to multitask or with somebody behaving in a way that is consistent with normal behaviour. It’s not walking and chewing bubble gum while paying attention to a police officer who’s asking you questions and pausing what you’re doing to focus your attention on that.
My favourite part of this decision, though, comes from the officer’s description of what the grounds for an ASD demand were. I highly recommend reading that portion of the decision because it, in itself, is so wildly inconsistent with the law that I’m shocked Crown bothered to pursue this case after that testimony came out. The fact that Crown continued to pursue the case despite the significant problems in the officer’s evidence and understanding of the various legal standards for demands and arrests shows why dedicated impaired driving counsel are right to push cases to trial where Crown alleges they have a strong case. That is their assessment, and often it is not accurate.
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.
