By Jordan W. Charness

Laws against drinking and driving are getting tougher and tougher. This is probably a good thing, as deaths and injuries resulting from driving while intoxicated have seriously decreased over the past 10 years. However, just because you are arrested for a drinking and driving offence does not necessarily mean that you will be convicted, as the following story indicates.

As a little bit of background, you should know that there are several criminal code violations included in the general sections of driving while intoxicated. Aside from the obvious driving while drunk, there are also included related offenses like driving with a blood alcohol level higher than the law allows, refusing to blow into a breathalyzer after being ordered to do so by a police officer, and driving while your ability to do so is impaired by drugs or alcohol even though you may be below the legal limit of blood alcohol content.

Another included offence is having care and control of a motor vehicle while your ability to do so is impaired by drugs or alcohol, even if you are not actually driving the vehicle at the time.

This could mean that you could be arrested and convicted for simply opening a car door, or sitting in a car with the keys in your possession while you are drunk. Although there is a legal presumption that if you have the keys in hand you have the intention of driving, this presumption is considered rebuttable, which means that you have the opportunity to convince a judge that you had no intention of driving the car while impaired.

A recent case I saw had the following facts. Two police officers were patrolling the parking lot of a local bar at around 2 a.m. They noticed that there were two people seemingly asleep in the front seats of the car. Worried for their safety, the police officer knocked on the driver side window but failed to get the attention of the sleeping occupant of the driver’s seat.

Worried that perhaps the person in the front seat was not sleeping but possibly ill or injured, the police officer opened the driver’s door — which was not locked — and gently pushed on the sleeping occupant’s shoulder. This woke the occupant who was startled to see a police officer leaning over him in his own car.

The policeman asked him if he was all right and he replied that he was and that he had intended to just sleep in his car because he had had too much to drink. At the same time the cop noticed a clear smell of alcohol emanating from the man’s breath.

At that point the police officer asked him to blow into a roadside breathalyzer because he had reasonable grounds to suspect that the man had care and control of a motor vehicle while his ability to do so was impaired. This was bolstered by the fact that the keys were in the ignition even though the car was not running.

The man failed both the roadside breathalyzer test and the test at the police station. He was subsequently arrested and charged.

At his trial, the man defended himself by saying that he had absolutely no intention of ever putting the car into motion while he was inebriated because he had nowhere to go!

As it turned out his wife had just thrown him out of the house that evening and he could not go to his friend’s house (that would be the friend in the passenger seat) because the friend’s wife hated the sight of him and would never allow him in the door. His friend corroborated his story.

The judge ruled that there was reasonable doubt that the driver would have put the car into motion while drunk. In fact, he ruled that it was possible that the man’s story was credible and that he really was just sleeping in the car with no intention of ever driving while intoxicated. He was acquitted.

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