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:
- Immediate Roadside Prohibition Review Tips
- Decision of the Week
- Legislative Update from Parliament
- Kyla’s Insight
1. Immediate Roadside Prohibition Review Tip of the Week
Always compare the copy of the Notice of Prohibition served on you or your client with the copy submitted to RoadSafetyBC. Oftentimes, police will fill in missing critical information, such as the location, date, or their signature, after serving the prohibition on the driver. If you or your client have a notice missing the date, time, reason for the prohibition, officer’s signature, or location, the Notice may be a nullity. RoadSafetyBC only sees the copy submitted by police, so you would then need to submit the defective Notice and argue it is a nullity.
2. IRP Decision of the Week
Prohibition Revoked: Police were conducting patrols near a liquor store parking lot. A vehicle pulled in, and the officer thought the driver seemed disoriented. The vehicle remained in a parking stall for a short time. Then the driver reversed and pulled away. Police stopped the driver as they were leaving the parking lot.
Three ASD tests were conducted. A first ASD was done while the driver had gum in their mouth. After the ASD result, the driver brought this to the officer’s attention and the test was conducted again. After the second test was conducted, a third test was conducted pursuant to the driver’s right to request a second ASD test. This device was the device used for the first ASD test.
Kyla Lee successfully argued that the second ASD test was conducted on the same device. Specifically, the courts have ruled that the right to a second test is a reasonable safeguard against the possibility of an unjust result. Officers do not have the right to re-conduct a faulty first ASD test on a different device. The driver’s opportunity to challenge the result of the first test is through the exercise of the right to request a second test. By using the same device for the first test and the third test, the officer effectively breached the right to a second test.
3. DUI Decision of the Week
Mandatory Breath Testing Constitutional Challenge Denied Leave to Appeal
In the case of R. v. Wright out of the Saskatchewan Court of Appeal, the Court held that mandatory breath testing — that is, ASD testing absent reasonable suspicion — was constitutionally invalid. However, the judgment was a split judgment on the issue of whether Section 1 of the Charter saved the legislation from constitutional infirmity. The majority of the panel found it did. A dissenting judge found it did not.
Leave to appeal to the Supreme Court of Canada was sought by the accused. However, leave was denied by the Supreme Court of Canada.
4. Kyla’s Insight
Honestly, I thought this case was destined to be granted. It appears to be the perfect case for the Supreme Court of Canada. It’s an issue of national importance that has the potential to affect tens of thousands of Canadians every year. It is a law that is far-reaching in terms of its applying not just to a particular subset of the population but anybody with a driver’s license. It gives police unchecked power that we’ve never seen in our country before. There was a split decision from the Saskatchewan Court of Appeal.
But this is the end of the road for challenges to mandatory alcohol screening. It just breaks my heart.
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.
