I was charged with drinking and driving “care or control”, but I was not driving!?

I was charged with DUI care or control, but I was not driving!? My car was stuck in the ditch!

ANSWER:

“Vehicle in the ditch” is a fairly common “impaired or over 80 mg care or control” situation. Assuming that the Crown does not rely on past driving as it usually would be too remote, the issues would be the same, namely: was the driver in his seat for the purpose of driving, and if not, was there still a danger to the public. The driver would likely have to take the stand and testify as to what his intentions were. If the judge accepts that the driver’s seat was occupied not for the purpose of driving (for example the tow truck was called and you decided to sleep in a warm car until the truck comes), you would still have to show that, among other things, you would not have changed your mind and decided to drive. Level of impairment is important in these cases, as judges do not tend to rely on a drunk driver having enough common sense to not drive if he or she were to wake up later.

If you cannot believe that you should be criminally prosecuted not for what you did, but for some future risk that might have been created by you, you are in good company. Some judges tend to accept an argument that “sleeping it off” was the right choice and that the risk has to be substantial and real in order to convict for care or control. Others are much less lenient. A recent Court of Appeal care or control case resulted in conviction, even though the accused was sleeping in the back of his van. In that scenario plan to return home becomes very important.

To sum it up, if you find yourself in a situation like this, contact a reputable drinking and driving lawyer and ask for a free consultation. These cases are extremely fact-dependent and you want your lawyer to look at your particular case in detail.