SafeRoads v. A.W.

(Notice of Administrative Penalty, Calgary - Impaired Driving/Roadside Sanction). AW was issued a roadside sanction for having care or control of a motor vehicle while impaired by alcohol. "Care or control" means that the recipient was not actually "operating" or "driving" the conveyance, but was seated in the place ordinarily occupied by the driver (driver's seat) in circumstances in which the vehicle could be put into motion and endanger the public. As the Supreme Court of Canada has held, the risk or danger to public must be realistic, not merely "theoretical" (see R. v. Boudreault, 2012 SCA 56).  

In AW's case, the police came upon a person who was seated in a parked vehicle, with the door open and legs out, vomiting on the ground. The police made an approved screening demand (ASD) for the person to provide a sample of breath into a roadside screening device. AW ("the recipient") complied. The test registered a fail. The first problem with AW's case concerned the reliability of the breath test. To that end, police are trained to wait 15 minutes from the time alcohol was last consumed so as to diminish the likelihood of a false positive test on the screening device. When a person is vomiting, that means that the person's mouth is very likely being re-coated with mouth alcohol that can dramatically inflate breath alcohol and thus can render a false positive fail on an approved screening device.  

A second major issue is that AW was not actually driving the vehicle and had no intention to drive. The explanation for the recipient's presence in the vehicle was very important and could not be overlooked. AW stated that friends (including a boyfriend) were returning and that the vehicle was only being used a temporary shelter. AW deposed to being ill and needing to come outside -- where it was chilly -- to wait for the others. AW had arranged transportation home with friends and planned on leaving the vehicle properly parked.

While it's true that police might be sceptical about such explanations, their cynicism does mean the plan or explanation is untrue.  Therefore, it is important to investigate.  A central feature to care or control cases is whether the person under investigation has a credible alternate plan to driving. In other words, though it may not be wise to use a vehicle as a temporary shelter while impaired by alcohol, it is not illegal. In AW's case, the police ignored the recipient's explanation and did not make any inquiries with AW's friends or boyfriend who arrived on scene while the investigation was underway. AW's vehicle was not started or running. AW also was not occupying the driver's seat in a manner consistent with how a driver would occupy such a location (legs were outside the door).

 Despite all of these issues, AW's roadside sanctions were cancelled because the police failed to properly inform the recipient of the right to a roadside appeal. That is to say, AW was not provided with the right to take a second test in writing and was not aware of the right. AW won the case.

David Chow is more than an Alberta Roadside Sanctions Lawyer; he is a full service Calgary criminal lawyer with extensive experience defending all criminal cases, including criminal driving offences (such as DUI, dangerous driving), crimes of violence (including homicide and domestic assault), property crimes (theft, fraud, possession of stolen property) and other Criminal Code offences. David offers a one-time free initial telephone consultation. This consultation is used for David to conduct an assessment of the accused/recipient's case at the initial stages.