What constitutes impaired driving?

[Neil4Speed]

Me and a friend were chatting about this over wings a week ago. He mentioned that on BSD a few years back he came close to getting DUI as he had zero intention of driving but was cycling his car on and off to run heat while he slept in his car while intoxicated. Campus security forced him to leave his car, and if he didn't cooperate they would have called the police to charge him with intoxicated driving.

This does kind of make sense to me, seeing as the officer doesn't know the intention of the driver if the engine is running - seems straight forward

But this started a big can of hypotheticals, curious about anyone elses input on these.

1. But then we were talking about about if he was sleeping in the car but without the engine running - I would assume no, because the car isn't running, its just a 'box of metal' so to speak, but he said otherwise.

2. Drinking in the car but without the keys within reach, say he stashed them somewhere else (in a bush or something)

3. Drinking around a car which is not running, which you have the keys to, and have no intention of driving.

We were also saying that since he was in a parking lot (private property) and not a roadway, it would probably have some differences. Ie. What would be legality if you sat in your car in the garage, drinking a beer with the car off and the keys not within reach.

Just to clarify, I am in no way shape or form encouraging Drinking and Driving (this should be clear from the hypotheticals outlined, seeing as none of them involve the actual act of driving). Just curious to see how they enforce those rules.

[Euro_Trash]

I know of two people that passed out in the back of their vehicles with their keys in their pockets - both got 24 hour suspensions for "DUI"

Edit: both times the car was parked on a public road (in front of residential)

[lasimmon]

Easily fought in court. Numerous friends got off from this.

[sillysod]

They will give you a 24 hour, but you won't get an impaired driving charge and lose your license 3 months unless they see you behind the wheel, even then it would get thrown out.

99% of the time you will get a 24 hour suspension - even sleeping in the back seat.

if you have open alcohol in a vehicle (running or not) you are going to get a ticket for that too.

[gretz]

I was at a "campsite party" wayyy back when... Had a few too many and needed to crash. Went to my 1994 GTP and passed out with the car running, as the A/C was brilliant at the time.

Cops were called to the campground and were shutting down the party / asking people to tone it down... I was woken up by a flashlight and tapping on my window. I took one look at the cop (who was looking for the door handle), locked my door, and went "back to sleep." After a bit, they just left me alone...

I'm not sure if it was because we were on private property or they didn't feel like I was a threat... No DUI

Euro> How did that hold up in court? DUI = Driving under the influence, what driving was taking place while sleeping in the backseat? lol...

What it comes down to is a DUI can be up to the discretion of the officer > they can give you a DUI for whatever they want, you need to prove otherwise in court.

[Euro_Trash]

Originally posted by gretz
Euro> How did that hold up in court? DUI = Driving under the influence, what driving was taking place while sleeping in the backseat? lol...

What it comes down to is a DUI can be up to the discretion of the officer > they can give you a DUI for whatever they want, you need to prove otherwise in court.

Never heard if they took the tickets to court or not. Very curious now if that is sitting on their driving records

[shakalaka]

You may still be charged with impaired driving. Without getting into it too much, short answer is yes you can be charged with impaired driving even if you're just sleeping or sitting in the vehicle.

When you're caught actually driving drunk, you're usually charged with two offences. Namely; impaired driving and operating a motor vehicle over 0.8.

The fact that the motor vehicle, vessel, aircraft or railway equipment is not in motion is not a defence.

[phil98z24]

There is a shit ton of caselaw surrounding this issue, specifically regarding the vehicle not being in motion and people being in the vehicle with the keys in their possession, etc. It is not "easily fought in court" when it's been determined that there is reverse onus on the accused to prove they were not in care or control.

The section of the criminal code regarding impaired driving states the vehicle does not have to be in motion, that the person merely needs to have care and control of it - and in doing so, they could inadvertently set the vehicle into motion while they are impaired, whether they intended to drive or not.

Numerous people have been convicted of impaired when they are sleeping in the front seat with the keys in their possession, or sitting with the car on, or the keys in the ignition.

[sillysod]

Originally posted by gretz


I'm not sure if it was because we were on private property or they didn't feel like I was a threat... No DUI


Probably because the officer felt confident that you weren't driving and that you had no intention of driving. That being said I would send him flowers the next day. :rofl:

I know that I had something similar happen when I was in university with a buddy. It was january and we slept in the back of his minivan with it running. Officer came up, looked at us - informed us we could get a 24 hr and let us go back to sleep.

I could be mistaken, but I believe if you decide to sleep it off in your vehicle your best chance of getting let off is to put your keys in the trunk or somewhere that clearly shows you were not and will not running the vehicle. At that point you have to hope that the officer decides to let you off.

[Traffic_Cop]

There are 3 charges. Impaired operation, driving over .08 and care and control.

Your discussion relates to care and control. If you are passed out behind the wheel, keys in ignition and vehicle running, you can be charged. In fact if the keys are in ignition, and you are able to put vehicle in motion, then again you can be charged. Having said that, some common sense will prevail (hopefully) on the officers discretion. If you are hammered, passed out in the back seat, can you be charged?, yes!, will you be?, probably not. If you are charged, the officer will have to prove intent, and that you had full care and control. Most judges would toss it out, and many crowns will too, prior to it going to trial.

[Neil4Speed]

Haha, I was secretly hoping that you would chime in Traffic_Cop. Great to understand these rules a bit better.

Does it make any difference if its done on private property or not? Ie. say a underground parkade.

[phil98z24]

Originally posted by Neil4Speed
Haha, I was secretly hoping that you would chime in Traffic_Cop. Great to understand these rules a bit better.

Does it make any difference if its done on private property or not? Ie. say a underground parkade.

No, because it's a criminal charge.

[Traffic_Cop]

Originally posted by Neil4Speed
Haha, I was secretly hoping that you would chime in Traffic_Cop. Great to understand these rules a bit better.

Does it make any difference if its done on private property or not? Ie. say a underground parkade.

Im always lurking!!.

Nope not at all. Impaired driving falls under the Crim Code and is different from the TSA. A farmer who's ploughing his field, hammered on his tractor on his own property could be charged. Much like a CP train operator on CP rail property can be.

[Traffic_Cop]

Originally posted by phil98z24


No, because it's a criminal charge.

Haa haa!!! Great minds eh?

[Neil4Speed]

I just realized what an idiotic question the Private property question was. Criminal laws still apply on private property haha :facepalm:

Good to know guys.

[Bobino]

Originally posted by Traffic_Cop
There are 3 charges. Impaired operation, driving over .08 and care and control.

Your discussion relates to care and control. If you are passed out behind the wheel, keys in ignition and vehicle running, you can be charged. In fact if the keys are in ignition, and you are able to put vehicle in motion, then again you can be charged. Having said that, some common sense will prevail (hopefully) on the officers discretion. If you are hammered, passed out in the back seat, can you be charged?, yes!, will you be?, probably not. If you are charged, the officer will have to prove intent, and that you had full care and control. Most judges would toss it out, and many crowns will too, prior to it going to trial.

Traffic_cop:

In your opinion, what would be the "best" way to sleep in a vehicle while impaired? I'm sure most of us have been in a situation where we've done this. Would putting the keys somewhere outside the vehicle be a good way to go about this? Is sitting in the passenger seat acceptable? Back seat? Not trying to get away with anything here, but I would rather sleep in my car than try to pilot it home if I've had a few too many.:dunno:

[theken]

buy one of those anti theft locking devices for the brake pedal, sleep in the back seat, leave your keys somewhere not "accessible" take a cab, sleep in your trunk

[phil98z24]

Originally posted by Traffic_Cop


Haa haa!!! Great minds eh?

Lol, at least we know there are two of us out there who know what they are doing. ;)

[gretz]

Originally posted by theken
buy one of those anti theft locking devices for the brake pedal, sleep in the back seat, leave your keys somewhere not "accessible" take a cab, sleep in your trunk

A cop can still give you a ticket... it is their discretion... (minus the cab)

[spikerS]

Originally posted by Traffic_Cop


Im always lurking!!.

Nope not at all. Impaired driving falls under the Crim Code and is different from the TSA. A farmer who's ploughing his field, hammered on his tractor on his own property could be charged. Much like a CP train operator on CP rail property can be.

While I have found that this is the case, The officer still needs to have a reason to come onto private property, IE, visible from public road, phoned in complaint, reason to believe life or limb in danger ect. Police do not have the power to just enter private property on their whim.

[lasimmon]

I personally know 3 people who got DUIs for sleeping in the back with the keys in the ignition (one was in the passenger seat). All went to court, explained they were sleeping blah blah. All got charges dropped with no tickets or anything :dunno:

[dexlargo]

Originally posted by Traffic_Cop
There are 3 charges. Impaired operation, driving over .08 and care and control.It's actually still only two charges - impaired and over 80, but for both you can be charged as either driving a motor vehicle (while impaired or over 80) or having the care and control of a motor vehicle (while impaired or over 80).

When proving care and control, like all elements of an offence, the burden is on the crown to prove that the person had care and control of the vehicle.

There is one presumption that helps the crown with care and control, though. If the person is found sitting in the drivers' seat of a vehicle, he is presumed to have the care and control of that vehicle without further proof required to establish that element of the offence. This presumption can be rebutted though, for example by the Accused taking the stand and saying he didn't intend to drive, he intended to sleep. Once evidence has been called that is capable of rebutting the presumption, the crown would have to prove beyond a reasonable doubt that the Accused actually had care and control.

So what is care and control?

One good way of thinking about it is this - Is there any risk that the person could put the vehicle into motion, intentionally or not?

Applying this analysis, people have been convicted when passed out in the driver's seat without an intention to drive. The courts have said that there was a risk that even though at the time, the Accused didn't intend to drive (so the presumption of care and control was rebutted), the Accused had de facto care and control because there was a risk he might change his mind about that intention, or he might inadvertantly release the brake and allow the vehicle to move.

People have also been convicted for having care and control while outside of their vehicles - but this is much harder for the crown to prove. There has to be some strong evidence that the Accused was in the process of trying to get the vehicle into motion - this might be by the Accused stating that he's going to drive while approaching the vehicle with keys in hand, or as sometimes happens with vehicles that are stuck on the side of the road in a snowbank or a ditch or something, that the Accused had been taking steps to get the vehicle unstuck.

In my view, if a person is passed out in the back seat of a vehicle, it would be hard to prove that they had care and control of the vehicle, especially if the keys are not in the ignition. How could that person put the vehicle into motion?

[phil98z24]

Originally posted by gretz


A cop can still give you a ticket... it is their discretion... (minus the cab)

What ticket would this be, pray tell?

And while we are at it, we can't just hand out DUIs at will. There is a lot of evidence collection and an onerous process involving completely different officers who have no stake in the case, and samples from an Intoxilyzer, which cannot be made up. The charge still has to be proven by a Crown, because despite what some may think, we do not live under Napoleonic Code and there is a presumption of innocence until the evidence is presented and the person is found guilty.

[phil98z24]

Originally posted by lasimmon
I personally know 3 people who got DUIs for sleeping in the back with the keys in the ignition (one was in the passenger seat). All went to court, explained they were sleeping blah blah. All got charges dropped with no tickets or anything :dunno:

Apologies, I didn't mean to call you out or anything in your comment - I figured you were talking about different circumstances. Your scenario is very different than sleeping in the front seat. It is almost impossible to prove intent from the back seat and again, there is caselaw surrounding that issue too.

It's still a constantly changing area of law, and so much depends on the totality of circumstances. I'm actually surprised the person who was in the passenger seat didn't go to trial; as it is pretty easy for them to move and set the vehicle into motion - but even then, the evidence has to demonstrate that.

[gretz]

Originally posted by phil98z24


What ticket would this be, pray tell?



Lasimmon has 3 friends that have gotten tickets (or DUIs issued) for sleeping in the backseat... Not sure the exact tickets/charges, but it was at the officers discretion...

[Toma]

Had a friend. drunk, sitting with keys in ignition listening to radio while waiting for a cab.

Was charged, and it stuck because apparently, keys in the ignition constitutes "operating"

[Kavy]

What i love the most about this thread is people arguing the police officer (traffic cop) is wrong then others arguing the lawyer (phil) is wrong.

I tend to also believe dexlargo is in the trade as well as most of his posts on this forum have the proper legalese on the subject in question.

Bottom line, i don't give two shits if your mothers uncle brother sister neighbors babysitter got a ticket.

I care about what the law is because that what effects people.

Traffic phil and dex thank you for clearing it up.

[phil98z24]

Originally posted by Kavy
What i love the most about this thread is people arguing the police officer (traffic cop) is wrong then others arguing the lawyer (phil) is wrong.

I tend to also believe dexlargo is in the trade as well as most of his posts on this forum have the proper legalese on the subject in question.

Bottom line, i don't give two shits if your mothers uncle brother sister neighbors babysitter got a ticket.

I care about what the law is because that what effects people.

Traffic phil and dex thank you for clearing it up.

Thanks for the career upgrade, lol. I'm actually a police officer; I just happen to have a thorough knowledge of criminal law and some other types of law. :)

Anyways - you're welcome. I just want to be helpful, hopefully that is being achieved in some way!

[lasimmon]

No one is really disputing what they have said. Just stating experiences.

Everyone understands there are many circumstances to every occurrence which will always have an effect on what happens.