Drinking & Driving??
- Thread starter Xieron
- Start date
He didn't have open alcohol in the car. Well-I guess he did to begin with but once he had his 2 shots he through the bottle in the trash. Didn't feel well and sat in his car.
I still think the cop going to the guy's house and saying stuff to his mom and kids is out of line. Plus questioning them on his whereabouts....an 80+ woman and 2 little kids.....
I still think the cop going to the guy's house and saying stuff to his mom and kids is out of line. Plus questioning them on his whereabouts....an 80+ woman and 2 little kids.....
shawnbg said:
Actually, they don't have to prove that. If you are in the seat normally occupied by the driver, the legal presumption is that you have care and control of the vehicle and intend to drive. The obligation is on the accused to prove that he did not intend to drive, and that can be pretty difficult to do. Not having the keys on you is a good way, but beyond that, it can be pretty tough. But again, the onus is on the accused to prove that he or she did not intend to drive the vehicle, not on the Crown to prove that he or she did. (Section 258(1)(a) of the Criminal Code).
Xieron said:
if he had the keys on the "outside" of the car ie: tail pipe, or behind a wheel.
the cops couldn't have done anything....
but i take it he had the keys with him..inside the car...
thompo69 said:
This is Criminal Law remember, the legal presumption is that you're innocent until proven guilty. The obligation is on the Crown to prove beyond a reasonable doubt that you intended to drive while intoxicated. Plenty of case law regarding "Care and Control" here.
http://www.lawyers.ca/private/Impaired2000/issuesresults.asp?IssueNo=10
DUI is under the HTA whis only applys to Ontario road ways. If he was given a ticket that was not on public property, it can be thrown out in court.
shawnbg said:
I think you might be missing the point I was trying to make. My point is that the Criminal Code states that if the Crown proves that a person occupied the place normally occupied by the operator, it is sufficient to presume that the individual had care and control. I'm not suggesting that on its own it is sufficient for a conviction. However, having met the standard for the presumption, the accused is under an obligation to rebut that presumption, thus, to a certain extent, shifting the burden of proof to the accused. If the accused can reasonably rebut the presumption (which he does not need to do beyond a reasonable doubt), the burden shifts back to the Crown who must then prove beyond a reasonable doubt that the accused had care and control of the vehicle. If the accused is unable to rebut the presumption, then that element of the offence stands.
The cases you cited appear to involve incidents of an accused succesfully rebutting the presumption. I never said it was impossible to do, but the presumption is in fact there. None of the cases cited strike down section 258(1)(a) which establishes the presumption.
thompo69 said:
I don't currently have access to the Criminal Code, but if I understand you, I disagree with the presumption that "care and control" only implies being drunk and occupying the drivers seat. Falling alseep in the car drunk without the keys in the ignition doesn't break any laws and the cops will rarely bother doing anything beyond giving your a 12 hour suspension, because they know they can't convict you of anything.
shawnbg said:
Okay, I think we're both misunderstanding each other, and making arguments about different parts of the offence, but essentially saying something not far from the same thing.
First, the Criminal Code is clear, in black and white, in section 258(1)(a):
"where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be..."
This establishes the presumption. However, it does not necessarily establish the offence. The accused has an opportunity to rebut that presumption, as the section continues:
"...unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;"
What this means is that, unless the accused can demonstrate that he or she did not occupy the seat for the purpose of driving, the court presumes that they had care and control, and the Crown can use that to establish offence -- ie. the burden of proof is on the accused. Now, in rebutting the presumption, the accused has to meet a much lighter burden. They do not have to prove it beyond a reasonable doubt, but on a balance of probablities. If they can do this, the Crown must prove beyond a reasonable doubt the accused had care and control. The decision you cited reflects the burden of proof on the Crown after an accused has succesfully rebutted the presumption.
I think essentially, I am arguing about the inital obligation faced by the Crown (which is none), whereas you're arguing about the ultimate obligation assuming a reasonable defence (which is huge). And, in fairness, I haven't really addressed your main point which is: would the police bother with charging someone they found asleep at wheel without the keys in the ignition. The answer: maybe. If the keys weren't in the ignition, but were in the individual's hand when he passed out, and the parking brake was off, the accused would have a much more difficult time rebutting the presumption of care and control by saying "I was only going to sleep it off." It all comes down to do they think this person was a risk.
You're in the car, you have keys, you're drunk, you're DUI. Take away the keys, you're just drunk. Tip I got years ago from a friend going to be a cop. If you have a standard, put the keys under the tire and roll the car onto the keys, if you want to pass out and not drive....other tip....don't drink and drive.
The towing and suspension make sense - giving him ample time to sober up before he gets behind the wheel again. It's the going to his house part that seems like an invasion of privacy, I mean, it sounds like something a cop would do if they found a sixteen year old drinking, not a grown man. Telling his mother?? Come on..
PHNINE said:
you can be charged for impaired driving even without breath test...
check this... http://www.magma.ca/~fyst/appndxe.htm impaired driving section...
dondada said:
You could also be charged with impaired driving, from drugs (prescription or other) or even lack of sleep
thompo69 said:
Now I understand what you're saying after seeing the Criminal Code section. Thanks for the citation and explanation. You sound like a lawyer? I've always been in interested in Criminal Law, wrote the LSAT's once, but then decided to take another route.
I only look at it from the ultimate obligation (the bottom line or defendants perspective), because that's the only one that really matters to me, or probably anyone else, except for a lawyer. I think our conclusions are close to the same. IMO, while the legal definition of "care and control" may only constitute sitting in the car, the intent and possibility of moving the car is still what's necessary to obtain the conviction. And it sounds like we pretty much agree that this wouldn't be a very easy case for the prosecution to win in court if you were found sleeping in the car without the keys in the ignition and had a decent lawyer.
Cheers
thompo69 said:Okay, I think we're both misunderstanding each other, and making arguments about different parts of the offence, but essentially saying something not far from the same thing.
First, the Criminal Code is clear, in black and white, in section 258(1)(a):
"where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be..."
This establishes the presumption. However, it does not necessarily establish the offence. The accused has an opportunity to rebut that presumption, as the section continues:
"...unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;"
What this means is that, unless the accused can demonstrate that he or she did not occupy the seat for the purpose of driving, the court presumes that they had care and control, and the Crown can use that to establish offence -- ie. the burden of proof is on the accused. Now, in rebutting the presumption, the accused has to meet a much lighter burden. They do not have to prove it beyond a reasonable doubt, but on a balance of probablities. If they can do this, the Crown must prove beyond a reasonable doubt the accused had care and control. The decision you cited reflects the burden of proof on the Crown after an accused has succesfully rebutted the presumption.
I think essentially, I am arguing about the inital obligation faced by the Crown (which is none), whereas you're arguing about the ultimate obligation assuming a reasonable defence (which is huge). And, in fairness, I haven't really addressed your main point which is: would the police bother with charging someone they found asleep at wheel without the keys in the ignition. The answer: maybe. If the keys weren't in the ignition, but were in the individual's hand when he passed out, and the parking brake was off, the accused would have a much more difficult time rebutting the presumption of care and control by saying "I was only going to sleep it off." It all comes down to do they think this person was a risk.
Thompo69 you are dead on with all this. I work for lawyers who specialize in Impaired and over 80 charges. In fact, there was a recent decision that said if you are "impaired" and near your car with the keys, you can be charged and in this case convicted. A guy was convicted of "Care and Control" when cops found him stopped at the side of the road getting something out of his trunk. He had his keys on him, but his friend, who was sober and the one actually driving the car, had left for a few minutes to pee. We don't mess around with drinking and driving in this Province anymore. If you think you're even close to being over .080, don't go near a car with the keys.
Couldn't agree more w/ jeff; the legal discussion's been amusing but beside the real point of the story. The guy was not just a driver who drank, but a driver who equipped himself to drink in the car he was driving. He shouldn't be allowed to drive. If we want the cops to enforce the laws we make against guys like this, then they will—and do—interpret "care and contrrol" as in the examples cited. They may later be found in error by the courts; courts have the luxuries of time, comfortable premises, expert witnesses and trained advocates for both sides. And we can get our legislators to fix the laws that prove to be overly (or unduely) harsh.
But late at night, in the rain, at the side of a busy highway, I want the cops to protect me and my loved ones from guys who drink so many brandies in their car that they can't stay awake. A simple standard like 'being the sole occupant and possessor of the keys to the vehicle while apparently under the influence' seems to me appropriate for their needs and the law's intent.
If you must drink and drive, please make it a single vehicle accident before you reproduce.
But late at night, in the rain, at the side of a busy highway, I want the cops to protect me and my loved ones from guys who drink so many brandies in their car that they can't stay awake. A simple standard like 'being the sole occupant and possessor of the keys to the vehicle while apparently under the influence' seems to me appropriate for their needs and the law's intent.
If you must drink and drive, please make it a single vehicle accident before you reproduce.
Xieron said:
Isn't the law in Ontario is if you are driving and your blood alcohol is around .004 (I think ) which is below the legal limit, you can get your license suspended for 12 houre.
Not a criminal record, no charges are laid, no impact on insurance, but the suspension / towing is a hassle. It is used as a prevention against drunk driving later in the evening,
Maybe someone can clarify this - I had to pick up a friend about 10 years ago while at university because of this rule.
maurice93 said:
someone could have a blood alcohol level of .01 and be impaired even though the legal guideline is .o8.
Blood alcohol levels can effect some people differently and it is possible for you to be charge with impaired driving at levels less than .08
A person may have a drink after a couple of Tylenols or other medication, or maybe a couple beers and no sleep for a couple days... or maybe just no sleep for a couple days... all of these would have blood alcohol levels well under the legal limit, which could result in an impaired charge.
