Can I be charged with impaired driving if I wasn’t actually driving?

Many people are surprised to learn that you can be arrested, prosecuted and convicted of impaired driving even if you are not actually driving a vehicle. For example, if someone goes to a bar and has one too many to drive, they might think they’re making a responsible choice to simply sit in their car and wait for the effect of alcohol to wear off. The reality is that many people have been arrested and convicted of impaired driving in exactly that scenario. Similarly, if a person is drinking at home, goes outside to their car to have a smoke and turns on the ignition to warm up, they can also be charged with impaired driving. Being arrested for impaired driving while sitting in your car in your driveway, a parking lot or on the side of the road is a more common occurrence than you might think. In the criminal justice system, it is prohibited for anyone to have care and control of a vehicle when they are impaired by alcohol or drugs.

What does care and control mean?

Legally speaking, there’s a presumption of having care and control of a vehicle when a person is sitting in the driver’s seat with access to the keys. Care and control can be proven by showing a person was either driving the vehicle or has taken an action that presents a risk of putting the car in motion, which is the situation I’m addressing in this column. The law addresses the risk of the vehicle being set in motion unintentionally, negligently, or intentionally where the driver changes his or her mind not to drive. Where an accused is found in a stationary vehicle, the Crown doesn’t need to prove that the person intended to set the vehicle in motion, but it must establish that he or she performed "some act or series of acts involving the use of the car, its fittings or equipment,” which may enable it to be set in motion. The central factor in the determination is the risk of setting the vehicle in motion and becoming dangerous. Even if an impaired person is sitting in the driver’s seat with the seat fully reclined, but the keys are in their pocket, they can be charged.

Working with experienced counsel is your best bet

Your best chance of defeating such a charge is by working with a lawyer who understands the intricacies of the law and how to negotiate with the Crown to minimize the impact of an offence. Impaired driving charges are very technical, with penalties assessed under both provincial regulations and the Criminal Code. They are increasingly complex in situations where the person is impaired, but not actually driving at the time of their arrest. As a criminal defence lawyer who has successfully represented clients charged with impaired driving, I have a deep understanding of the complexity of such matters. There are multiple pieces of the puzzle that require careful handling, including the federal Criminal Code, provincial Highway Traffic Act, police procedures, instruments used for testing impairment, and the experts who are called to bring evidence in such cases.

Penalties mirror impaired driving

Being convicted of impaired driving can have devastating consequences that can permanently alter the course of a person’s life. There are heavy penalties attached to impaired driving care and control, which I explained in a previous column. They are essentially the same as if you were convicted of impaired driving:

  • 90-day licence suspension
  • a fine of $1,000 to $2,000 dollars
  • a criminal record
  • jail sentence for serious or repeat offences
  • an additional one-year license suspension, if convicted
  • driver licence reinstatement fees
  • mandatory ignition interlock installed in the driver’s vehicle
  • increased insurance rates
  • possible limitations on employment opportunities

The burden of proof lies with the Crown

It’s important to remember that with a charge of impaired driving care and control, the burden of proof lies with the Crown attorney who must demonstrate beyond a reasonable doubt all of the following:

  • that the driver had actual care or control
  • that the vehicle was able to be put in motion
  • that the accused was in the driver’s seat for the purpose of putting the vehicle in motion
  • that the driver has possession of the keys, or they were easily obtainable inside the car.

In a recent case before the Ontario court, a man was charged with impaired care and control after he had been discovered sleeping or passed out in his car by a passerby. The police searched his vehicle and found what appeared to be drugs, which the officer believed might be crack cocaine or “crystal meth.” At trial, the judge acquitted the man based on the fact the police had breached his Charter rights in several ways, including by failing to provide him with a “further opportunity to consult counsel after a blood demand was made at the police station.” In her decision, Justice Susan C. MacLean said that while the evidence supported the possibility that the man was impaired by a drug when he was found passed out or asleep behind the wheel of his car in the middle of the road, it did not amount to proof beyond a reasonable doubt. “I am not reasonably satisfied that [the man’s] guilt is the only reasonable conclusion available on the totality of the evidence. The expert Toxicologist agreed that his condition could be due to other reasons, such as exhaustion. So, it is not speculative to draw an inference that his condition was due to fatigue. There is evidence that Mr. Brown continued to be tired at the hospital. This is one of the reasonable inferences which can be drawn in this case and it is a reasonable alternative to the conclusion that he was impaired by a drug,” the judge wrote in her decision.

Mounting a solid defence

I have defended numerous people facing impaired driving care and control charges, and how I approach each one depends entirely on the specific circumstances of the case. Under the law, if you’re in a vehicle with access to the keys, the presumption is you have care and control of that vehicle. If an accused says they planned to sleep it off, their testimony alone won’t be enough to rebut the charge. To properly defend charges of this nature, I conduct a thorough review of the Crown’s file as well as police reports and any witness statements, including an account of everything that happened from the accused. It’s not unlike a very technical puzzle, where I examine all the facts and check to see if the rules and procedures were followed correctly and whether the accused person’s Charter rights were breached in any way. It’s important to note that some cases don’t have the prospect of a solid defence, and a person’s only option is a guilty plea. Even in these circumstances, a skilled lawyer can negotiate with the prosecutor and the judge to ensure the sentence is within mandatory minimums and the lowest one possible. In a recent case, I represented a man charged with impaired driving after police found him sitting in a parked car in front of his home with the engine on. Although the vehicle was in park, the officer observed the man pushing on the brakes and revving the engine, evidence that convinced the judge that there was a potential that the vehicle could be set in motion. The Crown was arguing for higher fines because his Blood Alcohol Concentration (BAC) readings were high, but I was able to negotiate a mandatory minimum fine of $1000 and a one-year driving prohibition given it was a first offence. The outcome in another case I worked on was more favourable for a woman facing an impaired driving charge after a police officer observed her sitting in a running vehicle in a parking lot. After leaving a bar in the early morning hours, the woman and her friend walked around the small town they were visiting, trying to find an all-night restaurant or hotel. Before going out that night, they had formulated a plan not to drive if they had too much to drink. In the course of seeking shelter, my client’s cellphone battery died, so the pair made their way back to the vehicle to charge the phone. At the precise moment when my client’s phone was sufficiently charged, and she turned the car off, an officer spotted her, and she was subsequently charged with impaired driving. I successfully defended the charge, and she was acquitted because we were able to demonstrate to the judge that she had no intention of driving. Her vehicle was safely parked in an empty lot and she had the emergency brake on. Her testimony was clear and unequivocal: she did not want to drive that evening; she wanted somewhere warm and safe to spend the night, and the only reason she was sitting in the driver’s seat was to charge her phone. There was no reason to believe that she may change her mind.

Choose experienced legal counsel

Dealing with the police and the criminal justice system in cases involving impaired driving charges is a serious matter that requires a skilled and experienced legal advocate. I have successfully represented numerous clients by having the charges reduced or dismissed. If you have been charged with impaired driving, call me for a free consultation.

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Impaired driving