You can be arrested in Ontario for driving under the influence (DUI) of alcohol and/or drugs due to a wide variety of circumstances. All it takes is for police to believe that one’s motorized vehicle operation has been combined with the ingestion of impairing substance(s). DUI charges cannot be validated absent either common denominator of the impaired substance(s) or a motorized vehicle — any type of motorized vehicle.
That said, a third factor that is often highly important in proving or disproving DUI guilt in Ontario courts is defining what constitutes the “operation” of a motorized vehicle. Many people mistakenly believe that you cannot get arrested for DUI unless the vehicle is actually moving. That’s why when Toronto-area residents ask the DUI criminal defence lawyers at Mass Tsang whether they can get a DUI for being asleep while drunk in their car, the answer is a resounding yes!
Getting a DUI while asleep may feel unjust, but such charges can be laid because Canada’s Criminal Code defines the operation of a motorized vehicle in part as “to have care or control of it.” In fact, “care and control” DUI is a distinct criminal charge in Ontario. Police do not have to prove that you were actually driving a motor vehicle while impaired, but only that you were in a position within the vehicle in which you could have driven it while impaired. A conviction for care and control DUI results in the same penalties handed down for other DUI categories, such as over 80 mg, impaired driving, and refusing a breathalyzer or blood sample.
While someone who is actually driving a motor vehicle is clearly “operating” it, a person’s care and control of a vehicle are much less clear. Thus, the Supreme Court of Canada clarified the interpretation of care and control under the law in a 2012 DUI while asleep ruling. In R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, the high court upheld a lower court’s acquittal of a man charged with DUI while asleep, reversing the court of appeal’s decision to convict him. As the issues of impairment and being in a motor vehicle were not in dispute, the case revolved solely on the subject of care and control.
The primary factors of the case are clear-cut. After drinking all night with a friend,
Donald Boudreault recognized that he was too drunk to drive home the following morning and asked his friend to call a taxi. The friend called the taxi service and requested a cab with two drivers, one to take Boudreault home and the other to drive Boudreault’s car home. Boudreault’s friend, who wanted to go to sleep, suggested that Boudreault wait for the taxi in his car, which he did. Due to bitterly cold February temperatures, Boudreault started the vehicle, turned up the heat, and subsequently fell asleep.
When the taxi drivers arrived approximately 45 minutes after the initial call, they summoned the police instead of trying to awaken Boudreault. When the police arrived, they roused Boudreault from his sleep and placed him under arrest for care or control of a motor vehicle while impaired. A subsequent breathalyzer at the police station indicated that Boudreault’s blood alcohol concentration was about three times over the legal limit, so Boudreault was also charged with over 80 mg DUI.
In a 6-1 decision, the Supreme Court of Canada agreed with the trial judge that, based on the evidence, a “ realistic risk of danger” was absent from the intended meaning of the care and control provision of DUI law. In its ruling, the high court emphasised that the applicability of care and control under the law requires three elements:
The Supreme Court focused on the third element of whether the circumstances of Boudreault’s case created a “realistic risk” rather than a theoretical risk or remote possibility of causing risk. In assessing risk in this case, the justices agreed that a realistic risk of danger can arise even without any intention on the intoxicated person to drive. An intoxicated person who does not initially intend to drive, may change their mind later. Or an inebriated person might accidentally put the vehicle in motion.
Based on this, the justices tended to agree that the risk element of care and control is usually present in most cases where an inebriated person is found behind the wheel of a stationary vehicle. However, if the accused can produce “credible and reliable evidence” that proves there is no realistic risk of danger in context with their specific circumstances, care and control does not apply.
Examples given by the justices included evidence that the vehicle was inoperable or positioned in a manner that made it impossible to pose a risk of danger. One of the justices also noted that the “use of a vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.”
In Boudreault’s case, the high court found that he had provided credible evidence that he was escaping the cold while waiting for his taxi ride. Boudreault’s plan to get a taxi ride home, along with the more important fact that he had implemented that plan, served as enough evidence to prove that there was not a realistic risk that he would have put his vehicle in motion.
It should be noted that the dissenting justice vigorously disagreed with the majority’s opinion, arguing that the inherent risk should override Boudreault’s evidence that he was not at risk of putting the vehicle in motion.
If you are arrested for DUI while sleeping in your vehicle, contact a skilled DUI defence lawyer. An experienced DUI defence lawyer, such as those at Toronto-based Mass Tsang, will typically challenge such charges with a “reasonable doubt” defence. The concept of “beyond a reasonable doubt” is crucial in establishing a conviction in DUI cases. DUI lawyers can dispute care and control charges by raising doubts about the defendant’s intent to drive and/or ease at which they actually could take control of the vehicle.
The criminal trial lawyers at Mass Tsang are dedicated to securing acquittals, withdrawn charges, reduced charges, or otherwise favorable outcomes for those charged with DUI in Ontario. Mass Tsang lawyers have successfully defended thousands of Toronto-area DUI cases and have a stellar record of securing positive results for their clients.
If you or someone you know is facing DUI charges in the greater Toronto area, the expert lawyers at Mass Tsang today for a free consultation.
