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
There is no downside to requesting copies of your client’s hospital records if they have been transported to a hospital after a crash.
While it is true that police will often obtain a production order or a search warrant to get information from the hospital about the treatment, getting your own copy can be helpful. It can help identify possible defences early on if your client has just been in a serious motor vehicle accident.
Timely investigation of possible underlying causes that could explain the collision or the indicia exhibited by your client is important. It is not enough to just rely on the possibility of some medical condition that is later disclosed in hospital records. In disclosure this can come some time, sometimes years, after an incident. In such circumstances it may not be possible to get the follow-up care necessary to confirm the diagnosis. If such follow-up care or further investigation is done, the weight given to it will be affected by the amount of time that has passed.
You should advise your clients on how to obtain their hospital records early on. Because doctors and hospitals typically do not like to disclose medical records when they know a lawyer is involved, it is useful to ask your client to obtain a copy of them for their own personal records. Medical records belong to the individual, not to the hospital or doctor, and people are entitled to a personal copy. This could be a workaround for the delays and liability roadblocks that medical staff will often put up when obtaining medical records in a timely fashion.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for refusing to comply with an approved screening device demand.
The officer stopped the applicant’s vehicle after a report of a possible impaired driver. The officer did not see any signs of impairment at first, but then detected an odour of liquor. He formed a suspicion that the applicant had alcohol in his body. The officer indicated the applicant said his last drink was at 9:00 or 10:00 that morning.
According to the officer, the applicant answered “No” when asked if he understood and shook his head, and the officer then read it again and the applicant said “Yeah.” The applicant made eight attempts to provide a sample at the roadside, and each one registered as insufficient flow. The officer concluded that the applicant was putting in no effort, sucking in, or not listening. The officer described the applicant blocking the mouthpiece with his tongue on two attempts. He arrested the applicant for impaired driving and failing to provide a breath sample. The applicant then made a ninth attempt in the back of the police vehicle, which was also unsuccessful.
The applicant’s evidence was that English is his second language, that he did not understand what the officer was reading to him or how he wanted him to blow into the device, and that he had never used an approved screening device before. The applicant also disputed that he said his last drink was that morning and indicated he told the officer it was the night before. He said that he became increasingly nervous and anxious with each failed attempt, that his breathing became shallow, and that he tried to follow the officer’s instructions each time. He said that he said “Yeah” when asked if he understood only because he thought he would be in trouble if he did not. He denied that he had been drinking that day.
Kyla Lee argued that the applicant had not refused or failed to comply with the demand. She argued that he had made repeated, genuine attempts to give a sample, and the officer’s own narrative recorded eight attempts at the roadside and a ninth after the arrest. Counsel also argued that if he had failed to comply, he had a reasonable excuse, given the language barrier, his lack of understanding of the demand and the instructions, and his anxiety.
The adjudicator accepted the applicant’s evidence and Kyla Lee’s submissions and the prohibition was revoked.
3. Decision of the Week
In R v Decoteau, 2025 ABKB 598, the Alberta Court of King’s Bench held that police breached section 8 of the Charter on four separate occasions. Those breaches involved what the accused told paramedics, a search of her purse and wallet, the information about the existence of her hospital blood sample, and questions put to her in a hospital trauma bay.
The accused was involved in a fatal motor vehicle collision in which her vehicle left the road over a barrier and rolled down an embankment. Her passenger was killed.
The first officer on scene saw the accused being extracted from the vehicle and strapped to a stretcher as a spinal injury precaution. There was no evidence at the scene that alcohol was a factor in the collision. Nevertheless the officer entered the ambulance. He explained that it was standard policy to maintain continuity of the driver in a fatal collision.
During the paramedics’ assessment, the accused answered their questions about her last memory and her alcohol consumption. The officer recorded her answers in his notes. He also searched her purse and wallet in order to locate and seize her driver’s licence.
At the hospital, a second officer arrived at the trauma bay. Neither of the officers could smell alcohol on her. The second officer then directed a colleague to confirm with the doctor that blood had been drawn, which was done. Later, while the accused was hooked up to monitors and an IV, she woke up briefly. In the 30 to 45 seconds she was awake, the officer asked whether she had been drinking. She said she had. She was not cautioned with respect to her right to silence.
As a result of these admissions and the information that blood had been drawn, the police obtained a production order for medical records and the toxicology report. The report showed a blood alcohol concentration in excess of 80 mg%.
The Crown conceded the breach as it pertained to the officer’s entry into the ambulance and listening in on the conversation with the paramedics. Relying on R v Ouellette, 2023 ABKB 342, Justice Jugnauth found that the subject matter of the seizure was confidential health information, which was provided strictly so paramedics could treat the accused. A paramedic’s lawful possession of that information for treatment does not give police a derived power to take it for a criminal investigation. The expectation of privacy was somewhat diminished, because other people were present in the ambulance, but it was not eliminated as against the state.
A uniformed officer holds a position of authority. A person strapped to a stretcher after a major crash is poorly placed to object to the officer’s presence or the officer listening in to the conversation. Consent must be informed. Paramedics cannot waive a patient’s privacy interest against police. There is a practical consequence of this. If patients fear that what they tell medical staff will be passed to police, they may withhold the information necessary to treat them. With no grounds to arrest or detain and no stated legal authority, the court described the officer’s presence as a fishing expedition.
The search of the purse and wallet was unreasonable. The Crown relied on an implied power to search that flows from the general police duty to investigate crime, and the court found that position overly broad. The accused was neither arrested nor detained and there were no safety concerns. The Crown declined to make submissions on whether a new power should be recognized under the ancillary powers doctrine.
The confirmation of the blood draw was also a breach. Section 8 protects people rather than things, and that the principles that protect blood in the hands of a hospital apply equally to information about whether blood exists. The blood was taken for medical purposes only, and hospital staff owe a duty of confidentiality. Alberta’s Health Information Act does not authorize police to obtain that information without a warrant, and its disclosure provisions do not remove a person’s reasonable expectation of privacy. Citing R v Taylor, 2014 SCC 50, the court repeated that a hospital is not a Charter-free zone.
The trauma bay questioning was a search and seizure as well. In addition to her informational privacy interest, the court recognized a territorial privacy interest in her hospital bed and its immediate surroundings. A reasonable and informed member of the public would expect police to leave a person alone to recover from a major crash until she is alert enough to appreciate her surroundings and consent to police presence. Her answer was not valid consent. She was in no condition to exercise an operating mind, and the officer knew he was trying to elicit incriminating information from a suspect but did not tell her she could remain silent. The court said the absence of a caution was fatal to any suggestion of consent.
4. Kyla’s Insight
This decision addresses a dilemma that people face after crashes, particularly where there are major injuries or a fatality. After a crash, you are hurt, frightened and in the hands of paramedics who need to know what is in your body to treat you safely. What you tell them about alcohol, drugs, or medication can affect which treatments they give and which they avoid. If you think that every word may end up in a police officer’s notebook, you may be tempted to say nothing, and that choice can compromise your care.
The court held that information given to a paramedic so that you can be treated does not become the state’s to collect simply because a police officer is standing within earshot. A person can be candid with medical personnel and still keep the right to remain silent with the police. In my view, the court struck the right balance. Medical staff have no investigative role, and the law should not turn an ambulance or a trauma bay into an interview room.
The reasoning on consent is also important. In impaired driving investigations, police will often say that the accused chose to speak. Justice Jugnauth did not accept that an answer given while strapped to a stretcher, or while drifting in and out of sleep in a trauma bay, is a free and informed waiver of a constitutional right. Without a warning that she could decline to answer, the Crown could not rely on consent. The court also made clear that a hospital is not a Charter-free zone, and that statutes such as Alberta’s Health Information Act do not give police a back door around a warrant.
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.
