SafeRoads v. A.M.

(Alberta SafeRoads/Fort McMurray - NAP/Impaired Care or Control). AM was investigated for impaired care or control of a motor vehicle and ultimately issued a "notice of administrative penalty" (NAP) for impaired operation/care or control of a conveyance.  In the experience of this Calgary impaired driving lawyer, many people honestly believe that they can safely use a motor vehicle as a temporary shelter after having consumed alcohol or drugs. While this may be true, it is not uncommon for people using their vehicle for this purpose to do so while occupying driver seat. The lesson is, if you occupy the driver's seat after consuming alcohol, marijuana or other drugs -- even while your vehicle is parked -- and you are investigated by police, there is an extremely high likelihood that you will be criminally charged, roadside sanctioned or both for impaired care or control of a conveyance. 

The law with respect to care or control operates by way of a presumption; that is everyone who occupies the seat ordinary occupied by a driver is presumed to be in care or control of that conveyance. This means that even if a person does not have the intention to drive, it is still possible to be penalized for an impaired driving related offence. Of course, there are a constellation of objectively discernible factor that police, prosecutors, judges and adjudicators will consider when assessing care or control of a motor vehicle. This includes whether the vehicle was started, the position of the occupant in the motor vehicle (was the driver seat reclined?), evidence supporting an intention to move the motor vehicle (such as whether the peddles were engaged), the time for which the suspect had occupied the motor vehicle, other evidence to explain why the subject was occupying his or her position inside of the motor vehicle and whether there was evidence of an alternate plan to driving.

What this Alberta roadside sanctions lawyer has observed is that police almost automatically issue a roadside sanction in care or control cases. To that end, it appears the law enforcement view is to let the judge or adjudicator decide. Unfortunately, this creates serious problems for the person sanctioned; for even if that person is able to defend the case, they still suffer a temporary loss of licence, seizure of their motor vehicle and are susceptible to paying thousands of dollars in legal fees to defend the case. 

In AM's case, there was an expressed intention prior to using the vehicle as a shelter while waiting for a pickup that the vehicle was only to be used a temporary shelter in chilly conditions. When police arrived, AM had not moved the vehicle and was by all accounts, using the car to keep warm while waiting for a ride. AM was on the phone when police first approached. AM tried to explain the situation to police but those explanations went unheard. The police simply rejected those explanations without affording a reasonable amount of time for the sober driver to arrive. AM was roadside sanctioned and fought the case on grounds that there was not intention to set the vehicle in motion.  

While AM had a strong argument on this ground, it is not uncommon for adjudicators to simply reject this care or control defence. 

Fortunately, AM had an alternative argument. Specifically, the investigating officer failed to follow proper procedure with respect to AM's right to a roadside appeal. The adjudicator held that it was "...unclear from the police evidence that the recipient was issued the NAP".  The Alberta Court of Appeal has held that issuing the notice of administrative penalty is critical to the roadside appeal procedure because it is hard to imagine that a motorist will understand their right to roadside appeal until they understand the penalty that they are appealing.

In AM's case, the adjudicator agreed that AM demonstrated on the balance of probabilities a ground for cancellation based on the roadside appeal process. The care or control was not addressed. AM's roadside sanctions were cancelled. While AM was successful, there was nevertheless the natural penalty that followed between the time the sanction was issued by the officer to the time that AM received the adjudicator's positive decision. 

David Chow is a full spectrum Calgary criminal lawyer and Alberta impaired driving lawyer. While David often wins DUI cases, the best defence to a DUI or roadside sanction is simply to avoid drinking and driving or its related offences. The best way to do this is to stay away from the driver's seat of a motor vehicle after having consumed alcohol or drugs. Remember, impairment by drug does not necessarily illegal drugs only. "Drug" includes over the counter medications such as everyday cold and flu medications. Always check the label before driving. If you have been charged with a criminal impaired driving offence (or issued a notice of administrative penalty (NAP), there is wisdom in contacting an Alberta impaired driving lawyer for assistance. Keep in mind, any lawyer can advertise, not every lawyer can properly defend a case.