People are often surprised to learn they can be charged with a DUI offence (impaired and/or over 0.08) when they are sitting in a vehicle listening to music, passed out in the backseat or had been previously driving and then exited the vehicle.

“Care or control” within the meaning of s. 253(1) of the Criminal Code is: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. With respect to the third element, the risk of danger must be realistic and not just theoretically possible. Parliament’s objective in enacting s. 253 of the Criminal Code was to prevent the risk of danger to public safety that normally arises from the mere combination of alcohol and automobile. Conduct that presents no such risk falls outside the intended reach of the offence. Essentially, the concern that creates the criminal offence of care and control is the risk that the individual will put the vehicle into gear and drive.

The existence of a realistic risk of danger is a matter of fact. In the absence of evidence to the contrary, a realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of testifying to prove that no realistic risk of danger existed in the particular circumstances of the case. The trial judge must examine all of the relevant evidence and may consider a number of factors, including whether the accused took care to arrange an alternate plan to ensure his safe transportation home.

The penalties for being convicted of care and control are identical to that of impaired driving or driving over 0.08. If convicted, there is a mandatory one year driving prohibition and a minimum $1,000 fine.