Successfully Defending a Charge of “Care and Control” Impaired Driving
That impaired driving is a criminal offence that can lead to severe consequences (including a criminal record, fines, license suspension and even jail) is known to everyone. That one can face a charge of Impaired Driving or DUI when found actively driving a motor is also well known. What is less well known is that actively driving a vehicle while impaired is not the only circumstance that can lead to a charge of Impaired Driving.
Under Canadian law an individual can be charged with Impaired Driving, not just when they are actively driving the vehicle, but also when they are in “Care and Control”. Importantly, the potential consequences are the same as for driving while impaired: a criminal record, fines, license suspension and even jail.
In order to better understand this area of impaired driving law, we will review the legal definition of “care and control”, the legal issues that arise in such cases, and the common defences to a charge of impaired driving while having “care and control” of a motor vehicle.
Impaired Driving – Three Ways to Prove
The driver of a motor vehicle can face a charge of impaired driving in three circumstances:
(1) Active Driving of a Motor Vehicle
The most straightforward and common means for a prosecutor to establish the offence of impaired driving. For example, during a traffic stop or a RIDE program.
(2) Being Found in the Driver Seat
If a person is found seated in the driver’s seat of a motor vehicle (whether the vehicle is on or off), the Crown Attorney can rely on the presumption under s. 320.35 of the Criminal Code, which states the accused is presumed to have been operating the conveyance, unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.
(3) “Care or Control”
“Care and control” refers to a situation in which a person has the ability to operate a vehicle while impaired, even if they are not currently driving. As outlined by the Supreme Court of Canada in the decision of R. v. Boudreault, [2012] S.C.J. No. 56, the essential elements of “care or control” are:
- an intentional course of conduct associated with a vehicle;
- by a person whose ability to drive is impaired or whose blood alcohol level exceeds the legal limit; and,
- in circumstances that create a realistic risk (as opposed to a remote possibility) of danger to persons or property
Accordingly, the legal definition of care and control goes beyond merely sitting in the driver’s seat. Courts examine whether the person had the means, opportunity and ability to operate the vehicle, and the risk they pose to the public. This interpretation is meant to prevent impaired individuals from posing a potential risk, even if they had no intention of driving.
What is a realistic risk of danger?·
The principle behind impaired driving “care and control” being a criminal offence is that an impaired driver can pose a risk in situations beyond the actual operation of a motor vehicle.
The most obvious being proof of an intention to set the vehicle in motion (by example, a suspected impaired driver admits to the police it was their intent to drive the vehicle), which plainly would create a risk of danger to persons or property.
Courts have also found that an impaired individual may present a risk of danger as a result of other possible outcomes. For example, an impaired driver, who initially does not intend to drive, may change their mind and proceed to do so or through negligence set the vehicle in motion.
The Risk of Danger Must be Realistic
However, importantly,the risk of danger must be realistic, not simply theoretically possible. As stated by the Supreme Court, the law “does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle”
Legal Implications
The legal implications of care and control are serious. A care and control conviction carries the same penalties as impaired driving. Courts evaluate whether the accused had the ability to start and move the vehicle and whether there was a risk to public safety. Even if the car is parked, the law presumes that an impaired individual in care and control poses a danger because they might change their mind and attempt to drive.
Each case is fact-dependent. Factors such as the location of the keys and the person’s position in the car can influence how the courts interpret care and control. Given the complexities involved in such cases, seeking advice from a DUI lawyer is highly recommended for anyone facing such charges.
Read more: The Role of a DUI Lawyer.
Scenarios Constituting “Care and Control”
Occupying the Driver’s Seat
One of the most common scenarios leading to care and control charges is when an individual is found impaired while sitting in the driver’s seat. Even if the car is stationary, the courts may determine that the person could easily drive.
Even if the individual has no intention of driving, simply being in the driver’s seat while impaired may be interpreted as having control over the vehicle. Courts assume that sitting behind the wheel suggests an ability to operate the car, making this a legally risky situation.
Possession of Vehicle Keys
Even if a person is outside the vehicle, possessing the keys while impaired can lead to a care and control charge. The courts may see this as an indication that the person had the ability to drive.
Having the keys while impaired suggests that the individual could start the vehicle, even if they were merely waiting for a friend or planning to sleep in the car. Law enforcement officers typically assess the location of the keys and whether any steps were taken toward operating the vehicle.
Sleeping in the Vehicle
Many individuals believe that sleeping in their car is a responsible choice if they are too impaired to drive. However, if they are found in the driver’s seat or with access to the keys, they may still be charged with care and control.
To minimize the risk of a charge, legal experts recommend sleeping in the back seat with the keys stored in a separate location, such as outside the vehicle. This could demonstrate that there was no intent to drive and can reduce the likelihood of facing impaired driving penalties.
Legal Consequences of “Care and Control”
Penalties
From a penalty stand point, there is no difference. The impaired driving penalties for a “care and control” conviction will be the same as for actual impaired driving. These consequences may include fines, license suspensions, and even imprisonment.
In many jurisdictions, a first offense may result in a significant fine and a temporary license suspension, while repeat offenses may lead to longer suspensions, higher fines, and possible jail time. Additional penalties such as mandatory education programs and ignition interlock device requirements may also be imposed.
Criminal Record
A care and control conviction can result in a criminal record, which can have lasting consequences. A record may limit employment opportunities and restrict international travel, making it essential to understand the legal risks involved.
Many individuals are unaware that a care and control charge can have the same long-term impact as an impaired driving conviction. This highlights the importance of seeking legal representation from a DUI lawyer who understands the complexities of DUI laws.
How can I Defend “Care and Control” Charges”
No Intent to Drive
One of the most effective care and control defences is proving that there was no intent to drive. If the accused was sleeping in the back seat with no access to the keys, this could serve as a defence.
Inoperable Vehicle
Depending the circumstances of the case, if the vehicle was inoperable—such as having a dead battery or missing essential components—it may be a valid defence against care and control charges.
No Risk of Danger
As discussed above, a person may also have a defence if they can prove that there was no realistic risk of the vehicle being set in motion. A few common circumstances are addressed below.
“Care and Control” – Waiting Inside Vehicle for a Ride Home
A common situation that results in a charge of “care and control” is when a person enters the vehicle while awaiting a ride home. There was no intention to drive the vehicle. Rather, the only reason they are seated inside the vehicle was to await a ride home.
If the police find someone in such a circumstance, they will likely face a charge of impaired driving since the offence of “care and control” deals, not just with the intention to actual operation of vehicle, but, as discussed above, the risk an impaired person will cause to the public who is in “care and control” of a vehicle.
The most important factor a court will examine in such a situation is whether there was a concrete and reliable plan to get home. That is, a plan that, rather than being one of mere hope or possibility, was a serious plan, one that in fact would have prevented the person from driving.
Accordingly, the key to successfully defending a charge of care in control will often turn on presenting evidence of the alternative plan to the court. For example, by calling witnesses (the friend that was coming to pick you up) or adducing documentary evidence (such as Uber receipts) that confirmed the existence of the alternative plan to get home.
“Care and Control” – Single Vehicle Car Accident
Another circumstance that results in a charge of “care and control” impaired driving is during the investigation of a single vehicle car accident. For example, the police respond to a car accident and someone (perhaps standing at the side of the road, sitting in a tow-truck or being treated inside an ambulance) is identified as the driver.
While proving that the accused had “care and control” of the vehicle may seem straightforward, it often is not. Some of the issues that arise include:
- Did the Crown’s witnesses actually observe who was driving the vehicle? Or are they relying on speculation or what someone else told them (inadmissible hearsay)
- If the Crown is relying on a statement made by the accused that he/she was driving, is the admission admissible? Was it obtained voluntarily or was there a violation of his or her rights under the Charter of Rights that should lead to its exclusion from evidence?
- Was there an intervening event that severed the accused “care and control” of the vehicle?
- Were there issues with the procedures that the police followed, including providing rights to counsel and ensuring the proper breath demand was read to the accused and police breath examination processes followed?
Protect Your Rights by Understanding “Care and Control”
Understanding care and control is crucial for avoiding unintended legal consequences. Even if a person is not driving, they can still face serious impaired driving penalties under the law.
To prevent impaired driving consequences, individuals should take proactive steps such as arranging for alternative transportation and avoiding any interaction with their vehicle while impaired. If you are facing a care and control charge, seeking legal advice is crucial. A DUI lawyer can provide the guidance needed to navigate your case and build the best possible defence.
If you have been charged with a DUI, don’t face it alone. Contact us today for a Free Consultation, and let us help you protect your employment and future. Request a Call Back to discuss your case with an experienced DUI lawyer who understands your situation and can provide expert legal support.
Richard Fedorowicz has over 20 years of experience in criminal defence and a proven track record of success. He will fully assess any elements of a criminal case that could help the most effective defence for each of his Greater Toronto Area clients.
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