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 Decision of the Week
- DUI Decision of the Week
- Kyla’s Insight
1. Impaired Driving Defence Tip
In British Columbia impaired-driving cases, always reconstruct the Approved Screening Device timeline independently rather than relying on the police narrative. Map out, minute by minute, the time of driving, the time of the demand, when the ASD was first presented, each attempt to provide a sample, and any delays attributed to device readiness, subject non-compliance, or officer error. Especially now that there is body camera footage these times are easy to identify in most cases.
Then compare that chronology against the officer’s notes, the officer’s narrative, CAD timestamps, the administrative driving prohibition documents, and any reports from other officers.
Many cases turn on whether the demand was made immediately and small gaps are often obscured by boilerplate language in reports. When the timeline is laid out clearly, those gaps can become legally significant, particularly in fail-to-provide cases where Section 24(2) does not have to be engaged to exclude the evidence. This approach avoids abstract credibility disputes and instead demonstrates, precisely and persuasively, that the chronology does not support the claims being advanced by the officer.
2. IRP Decision of the Week
Prohibition Revoked:
After receiving an anonymous complaint of an erratic driver, the police pulled over a vehicle matching the description and licence plate the caller provided. Upon engaging with the driver, police noted gross symptoms of impairment including watery eyes, slurred speech, slow and erratic movements, and an odour of liquor on his breath.
An approved screening device demand was made. The suspicion was formed seven minutes before the demand was read. The applicant agreed to provide a sample.
Four attempts at obtaining a sample were made but no sample was obtained. Testing was concluded after ten minutes.
Kyla Lee argued the demand was not immediate, as there was no explanation for why there was a seven-minute period before reading the demand. The officer’s evidence of the refusal, despite spanning ten minutes, lacked detail about what the applicant was doing incorrectly or when the attempts were made, what direction was given, and whether the behaviour changed in response. The evidence of the police was so inherently weak it did not support the case for a refusal allegation.
The adjudicator agreed and the prohibition was revoked.
3. DUI Decision of the Week
An oldie but a goodie, especially as the theme of this week’s newsletter seems to inadvertently focus on approved screening device demands. In R. v. Boutin, 2010 SKPC 68, the Court considered the role in which information about the right to counsel informed whether a person had a reasonable excuse for not providing a sample.
In that case, the Saskatchewan Provincial Court reasoned that the unique circumstances meant that Mr. Boutin’s request for a lawyer and his belief that he was entitled to consult counsel did give him a reasonable excuse.
The court identified several circumstances suggesting that the timing of the right-to-counsel information played a significant role in Boutin’s refusal to provide a breath sample. Boutin was detained at the roadside for nearly 58 minutes before the demand was made. Even though the officer did not have grounds to make the demand earlier, the length of the detention was far longer than what normally occurs before an ASD request, which affected Boutin’s perception of the situation.
During that time, police searched Boutin’s vehicle while he sat in the police car. The search was lawful, but it took additional time and materially changed Boutin’s legal jeopardy. The discovery of cannabis in the vehicle escalated the seriousness of the situation and would reasonably have increased his sense that he was facing criminal consequences beyond a routine roadside stop.
The court also found it significant that police had decided to arrest Boutin on an outstanding warrant before formally announcing the arrest. Steps associated with that decision, including planning to impound the vehicle, prolonged the detention. When the arrest did occur, the officer correctly advised Boutin of the reason and of his right to counsel under section 10(b) of the Charter.
Immediately after being advised of his right to counsel and the police warning, Boutin clearly stated that he wished to speak to a lawyer and remain silent. This occurred before the ASD demand was made. Although the officer later explained that the right to counsel did not apply to the ASD test, the court found it highly unlikely that someone in Boutin’s position would understand the technical distinction between an ASD demand and a standard arrest or detention.
4. Kyla’s Insight
This case demonstrates several important principles. First, never abandon a legal issue simply because some cases have decided it the other way. Unique facts can often distinguish otherwise settled law.
Second, the right to counsel and its suspension in the ASD context is not absolute. While a violation of the immediacy requirement will engage that right, other forms of detention and investigative steps can also trigger section 10(b) protections before an ASD demand is made.
Although Boutin may appear factually unique, it is not uncommon for one investigation to unfold before ASD grounds are formed or for an arrest on an unrelated matter to occur before an ASD demand. Those circumstances arise frequently and can bring this reasoning into play.
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.
