SafeRoads v. D.S.

(SafeRoads Alberta - Care or Control). In DS's case, police observed a vehicle running in a private driveway and when police approached, the occupant was sleeping. The vehicle was parked in the occupant's domestic partner's driveway. DS tried to explain that there had just been a domestic dispute and that there was no intent to drive -- only to use the vehicle as a temporary shelter. DS's domestic partner corroborated DS's version of events by providing a sworn affidavit in support of the case. 

A primary element to having care or control of a motor vehicle while impaired is something more than a theoretical risk that the vehicle could be set in motion. While everyone who occupies the seat ordinarily occupied by the driver is presumed to be in care or control, the mere fact of occupying a driver's seat is not necessarily determinative. The entire constellation of facts needs to be assessed. This includes the place where the vehicle is parked, whether keys are in the ignition, whether the vehicle is running and/or whether there is other evidence that the occupant presents more than a theoretical risk of placing the vehicle in motion and endangering the public. 

In DS's case, the adjudicator took a close look at the evidence and concluded thus: "While the Recipient was in the driver's seat, with the engine running, I consider the circumstances of this case, including that the Recipient had been in an argument with MB, was forced outside of the home with [the] dog and no leash and..sought shelter...[and] remained for over 20 minutes without moving the vehicle".  DS's roadside sanctions were cancelled. 

Impaired driving law can be quite complicated. While it is certainly not advisable to use a motor vehicle as a shelter while one is under the influence of alcohol, there are circumstances where a person may not have another choice. In these cases, it is important to retain the services of a qualified Alberta impaired driving lawyer who understands the nuances of SafeRoads law. While a Notice of Administrative Penalty (NAP) flows from the criminal law, the onus of proof, the rules of evidence, Constitutional application and adjudicative protections are not the same. David Chow is an experienced Alberta SafeRoads Lawyer who offers a free initial telephone consultation.