Did you know that under Canada’s severe DUI laws, you can be charged with impaired driving even if you were not driving a vehicle?

As harsh as this may sound, if you are behind the wheel of your car (without actually starting the engine) and intoxicated, it might be enough for charges to be filed.

In such cases, a great deal depends on the interpretation of the situation by police officers. An experienced DUI defence lawyer like Alan Pearse may be able to show that events can be interpreted differently.

Given the potential consequences of a conviction, it is imperative to give yourself the best possible chance in court.

What is “care and control”?

Under Canada’s DUI laws, “care and control” means:

  • When a person has voluntarily assumed care or control over a motor vehicle, i.e., they are either in control of the vehicle or could set the vehicle in motion.
  • Where a person is presumed to be in care and control of the vehicle (there is a legal presumption that anyone occupying the driver’s seat is in care and control of the vehicle)

According to Section 320.14 of the Criminal Code, the fact that the vehicle does not have to be in motion is made clear (bold added):

  • Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

Impaired driving or Driving At or Over 08 charges will be filed if you are found to have care and control over a vehicle and are either impaired or have a blood alcohol concentration of over 0.08.

Examples of care and control cases

Care and control cases can be complex and each one depends on the precise circumstances. It doesn’t always involve a person at the wheel with a blood alcohol concentration above the limit and about to start the engine.

There are many cases where an individual had no intention of driving. Most commonly, Alan Pearse deals with the following types of cases:

“I was asleep in my car”

Many drivers are amazed when they awake from sleeping off a few drinks in the fully reclined driver’s seat of their car to face a DUI charge.

Generally, this is a difficult one for the prosecution to prove as they need to establish “care and control” through an intent to drive and show that there was a likelihood of the car being set in motion, e.g., the keys in the ignition.

There have been cases where the accused has admitted to having the intention to drive after waking up – which has been enough for the prosecution to establish care and control and to convict them.

In such cases, we look to prove that the defendant had no intention to set the vehicle in motion and that there was no realistic risk of danger.

“I was just listening to the radio”

Another common scenario is when someone is found by law enforcement in an intoxicated state in the driver’s seat of the car listening to the radio or accessing other operating apparatus.

Even if the parking brake is on, by putting the keys in the ignition you can still end up with a charge for driving at or over 08 or impaired driving.

Penalties for impaired care and control

If you are convicted of impaired driving due to having care and control of your vehicle, the penalties are the same as if you were driving your car:

  • 1st offence: Mandatory minimum $1000 fine; Maximum 10 years imprisonment
  • 2nd offence: Mandatory minimum 30 days imprisonment; Maximum 10 years imprisonment
  • 3rd offence: Mandatory minimum 120 days imprisonment; Maximum 10 years imprisonment
  • Fines increase according to the BAC level measured, with elevated levels above the legal limit of 0.08 incurring up to $2,000 in fines rather than the minimum $1,000.

There can also be an immediate license suspension and an additional license prohibition upon conviction.

You will also face driver’s licence reinstatement fees and a mandatory Ignition Interlock Device (IID) installed in any vehicle that you want to drive.

Longer-term, the permanent criminal record can impact employment opportunities, immigration status and travel to the US and you can expect sky-high insurance rates for the next five years.

Defences for care and control cases

The prosecution must prove the case against a driver beyond a reasonable doubt.

With care and control cases, this is no easy task because it must be proven that the defendant occupied the driver’s seat to set the vehicle in motion – and that this caused a risk of danger.

Often, we can raise doubt about the intention of the driver to set the vehicle in motion or assist in its operation – which brings into doubt whether he or she had care and control over the vehicle.

The defendant also has certain rights under the Canadian Charter of Rights and Freedoms. If officers make mistakes and these rights are not observed during the stop, arrest and charge process, the case can be dismissed due to evidence being inadmissible in court.

Do you need legal advice about an impaired care and control charge?

To end up with a conviction and a lifelong criminal record when not even driving your vehicle seems an unfair price to pay for a thoughtless mistake.

As such, you need to defend the charge vigorously. Arrange a free evaluation of your case to work out the next steps.