Vancouver criminal defence lawyer shares rights of drivers

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What should you do if the police pull you over? Can the condition of your tires be brought up in court if you crash on the Sea to Sky Highway this winter without appropriate winter tires? And what can impact a breathalyzer test? 

While many of us have been driving for years, these are the questions most of us don’t have the answers to. We know the laws, perhaps, but not our rights and obligations.

Therefore, The Squamish Chief sat down with Acumen Law Corporation criminal lawyer Kyla Lee, popular on TikTok as @kylaleelawyer, to ask her some of our pressing questions about driving law. 

What follows is an edited version of that conversation. 

First, what drew you to law in general? And then why driving law? 

I always wanted to be a lawyer ever since I was a kid. One of the last stories my grandma ever told me before she died was that when I was 10 or even younger than that, I was walking with her to church and I said, “I’m going to be a lawyer when I grow up,” and she said, “OK. That is nice.” 

The idea to be a lawyer came from reading the Nancy Drew books. Nancy’s dad was a lawyer and I was really fascinated with his work.

And why this type of law was a bit of happenstance. 

I always wanted to do either criminal law or Indigenous law. And then I realized that with Indigenous cases, it would likely mean one case, probably my entire career. So I applied to criminal law firms, and I got hired at Acumen and the firm specializes in driving cases. So it’s just good luck, but I love it.

What do you love about it? 

Every day is different. But also, this is one of the very few areas in the justice system where the average person is going to have contact with the court system. Otherwise, most people go their entire lives and they don’t deal with lawyers unless they’re making a will or buying a house. A ticket or a driving charge — that can happen to anybody. And so I like the idea that I’m sort of helping the Everyman.

@kylaleelawyer Should you call a lawyer if you are detained? What advice can a lawyer give you? #police #traffic #kylalee #duilawyer #drivinglaw #underarrest #arrested #bcpoli #canadianlaw #lawyersoftiktok #lawyer #fyp #legaladvice ♬ original sound – Kyla Lee

In the Sea to Sky, you have to have winter tires to drive the highway in the winter. Have you seen the condition of tires come up in cases for you?

It definitely does, especially if people end up charged with dangerous driving. 

To be charged with the offence of dangerous driving, it only requires you to drive in a manner that’s a marked departure from the standard of a reasonably prudent driver. That includes the condition of your vehicle and the condition of the tires. You could also get a ticket for having bald tires. So don’t do it.

Lots of folks, especially in the Sea to Sky, install dash cams in their vehicles, but you see this as perhaps being more harmful than good for drivers, correct?

A lot of people think that when they have a dash cam, it’s going to be evidence that’s going to exonerate them. But in my experience, that’s not been the case.

Oftentimes, when they’re involved in an accident and end up under police investigation, the police seize the dash cam. And then, police use the information from the dash cam to convict the drive. The video may show you maybe not driving perfectly leading up to the collision or even if what you are doing wrong didn’t cause the accident but was sometime before, it can be used against you. 

And if you have a dash cam, ICBC will usually require you to disclose that to them. And if there’s anything that shows on the footage that you said something maybe not accurate to ICBC — whether intentionally or mistakenly because you genuinely believe that is how things happened — that can actually impact your insurance as it is seen as providing a false statement case.

What about the laws around where you can have your phone while driving? I saw you did a TikTok about that and was surprised by your answer. 

You’re allowed to have your phone on your seat or in your cup holder, provided you’re not using it. So, if you are taking a call and speaking on it hands-free, then you have to have the phone mounted securely to the vehicle. There’s one case that said that it’s OK to have it in the cup holder if it’s playing music provided again, the music is started before you commence driving so that you’re not touching the phone. The phone can’t be on your lap or tucked under your leg. Anywhere making physical contact with your body is essentially considered holding it under the law.

What about with GPS going into the city or something and you’ve got your phone mounted,  can you touch it to adjust to the changes on the map? 

No. You are not allowed to touch it. If you’re using GPS, it has to be directions programmed before you start driving. And then you’re not allowed to touch it.

If you are in a crash, the police can take your phone, correct? 

Oftentimes, now the police will, if you’re in a crash and they suspect that you’re involved in criminal activities or criminal driving behaviour.  They can seize anything related to the arrest without a warrant. So they can take your phone. The Supreme Court of Canada, a couple of years ago, said that with an arrest, the officer can seize a phone. You can’t go beyond the screen of the phone without a warrant, but you can take the phone. So if you have your phone visible somewhere in the car, the police are going to take that because it’s potential evidence. 

They can get a warrant to compel you to turn over your password.

They can also get a warrant to get all the data off the phone.

And a lot of people don’t realize that there are apps on your phone creating logs of where you go. So with Google timelines, for example, it shows where you were, how many minutes you were there, and what route you took to leave. It is tracking your every movement and police can get all of that data and then they can find other information. For example, if you were out at Cactus Club before you got in the crash, the police can then go get that data off your phone, and then go to Cactus Club, get any surveillance footage, get the receipt, interview the server, get information about what you drank, what you ordered, how long you were there, and that information can be used against you in court.

What should you do if you’re pulled over for some reason? 

Do produce your license and insurance. And you’re required to state your name, your address, and the name and address of the registered owner of the vehicle. So make sure that you do all of those things if you’re asked, because you can get ticketed if you don’t. You could get arrested for obstruction if you don’t provide your identification to the police. 

The other thing you have to do is if you’re asked to provide a sample into a roadside breathalyzer or perform any type of sobriety test, like walking on the line and standing on one foot. If you’re asked to do sobriety tests, you are required to participate in those. You cannot refuse. 

That’s one of the biggest ones that people don’t know because in the U.S. you’re allowed to refuse the breathalyzer. Since we get a lot of our legal information from the U.S., people honestly believe that they can refuse, but they can’t. 

So do all of those things. 

@kylaleelawyer Being pulled over by #police can be a stressful situation. Don’t make it worse by making the 3 biggest mistakes I see people making in #traffic stops. #kylalee #duilawyer #drivinglaw #ticket #trafficticket #dui #bcpoli #cdnpoli #canadianlaw #lawyer #lawyersoftiktok #fyp #legaladvice #DUI ♬ original sound – Kyla Lee

I know you get this question in your comments online: you defend folks who get DUIs — people charged with the crime of driving a vehicle while affected by alcohol or drugs. 

Obviously, drunk drivers could kill someone, and no one wants that. How do you justify defending those charged with such a crime as drunk driving?

You’re not going to find a person walking down the street who’s like, ‘Actually, drinking and driving is a good thing.’

I don’t think it’s necessary to add my voice to that chorus of voices, I think it’s implicit that you shouldn’t break the law. 

A lot of people who are charged with impaired driving are innocent. All sorts of things can go wrong when taking a breath or even blood, or urine samples. There are issues that can affect the reliability of the reading. And I think that when it comes to drunk driving, because there’s so much of a stigma around it and because it can cause so much carnage, the emotional reaction to the offence is very visceral. 

My role is to make sure that people who, usually on the worst day of their lives, get through an incredibly difficult, confusing system, in a process where their rights may be violated, with the best protection that they can get as is guaranteed under the Canadian Charter of Rights and Freedoms.

I have seen you say that DUI laws discriminate against folks. How so? 

The science relied on for creating impaired driving laws worldwide relies on the 0.08 blood alcohol content.

You can be impaired at 0.08, but you may not be impaired at that. 

The reason it’s discriminatory is that, in calculating what somebody’s blood alcohol level is, you look at a number of factors, including what they drink, the length of time they drink, the alcohol concentration in the drink, and their gender. So a man would have a blood alcohol level that is lower than a woman for an equal weight. So if you take two 150-pound people, one is male, one is female, and we give them two beers each, the woman will have a higher blood alcohol level by 1.17 times than the man. It’s a small amount, but it’s enough to go from being legal to not legal on the same consumption, the same underlying factors.

And so, all of the science was based on men and how alcohol impacts men. The standard was developed based on research involving white men in Europe between the ages of 20 and 50.

For people who are trans, you have to basically make a decision about which calculation you’re using. The law in Canada has never identified which one would be appropriate.

@kylaleelawyer Canada’s #DUI laws are discriminatory against women, trans people, and people with disabilities. Know your rights and know the science to protect yourself. #breathalyzer #drivinglaw #driving #lawyer #kylalee #canadianlaw #lawtok #bclaw #bcpoli #Canada #cdnpoli #canadianlaw #duilaw #drivingproblems #drivingprohibition ♬ original sound – Kyla Lee

You also talk about the breathalyzers themselves and how they may not always give an accurate reading based on things folks may have done right before they blow. Can you get into that?

Your body being in ketosis — you know, with this keto diet being so popular — that can actually cause your body to produce substances which can trigger false positives on breathalyzers. There are things like soya sauce and even large amounts of some bread products, especially really sugary bread, like Hot Cross buns, that can ferment, essentially with the saliva in your mouth very quickly as you chew them. Vapes can contain forms of alcohol ingredients. So if you vape within 15 minutes of the test, it can produce a false positive. Chewing tobacco and even mouthwash and cigarettes can cause a false positive.

I’m a terrible acid reflux sufferer, which can cause a false reading on the test.

What are some other misconceptions you would like to clear up? 

You don’t have a right to call a lawyer before doing a roadside breathalyzer. 

You can if you’re asked to blow into a breathalyzer at the police station, but not for anything at the roadside. So, you have to do it. And if you ask for a lawyer, that’s the same as refusing to blow, and you’ll end up charged.

The other thing is you don’t have a right to take a blood test instead of the breathalyzer. That’s refusing to do the breathalyzer, and you can end up charged with a criminal offence.

What would your advice be for a young person, a little girl, for example, who may want to follow in your footsteps in this career? 

It’s totally a cool thing to go into law. I heard this expression once from a lawyer, and I’m totally stealing it, which is, as a criminal defence lawyer, we’re the only lawyers in the constitution, which is super cool. Like, my job is a constitutional imperative in Canada. And it is really cool to get an understanding of the justice system and how it works and to be able to help people every single day, whether it’s helping my individual clients or providing information to the public. If one person has their rights better protected because of the information that I’ve given, then I’m happy, and I’ve done my job. 

@kylaleelawyer Can you get a #DUI in Canada even though you were not #driving? Canadian #law prohibits even just being in the #vehicle if you are intoxicated. Unless you have a concrete and reliable plan in place, you can still be considered “operating” the vehicle as that term is defined in the Criminal Code. #duilawyer #lawtok #lawyersoftiktok #cdnpoli #canadianlaw #law #legal #drivinglaw #kylalee #fyp #duilaw #impaireddriving #breathalyzer #bcpoli #bclaws ♬ original sound – Kyla Lee