It's been a surprise to many people over the years, but you don't have to be actually driving a motor vehicle when your ability to drive is impaired by alcohol or a drug to be convicted of that offence. Simply being able to set the vehicle in motion, engine running or not, may be enough for a conviction because you have care and control of the motor vehicle while you are impaired. If you are impaired, the best advice that I can give in most cases is to stay out of motor vehicles unless you have a sober driver that you are not supervising.
The situation is particularly risky if you are occupying the driver's seat, but it is not impossible to be convicted if you are in another of the vehicle's seating positions. Police will investigate as if you were an impaired driver of a moving vehicle and unless there is evidence to show otherwise, allege that you had the capability of setting the vehicle in motion.
The onus shifts to you to rebut this and then it is up to the court to decide who to believe. If you are not successful in convincing the court that you had no intention or capability to set the vehicle in motion and are convicted, the penalty is the same as if you were found driving. A fine, various prohibitions, 10 penalty points and a criminal record will result.
Another unique circumstance for care and control would involve an impaired instructor of a sober driver who requires the instructor as part of the Graduated Licensing Program (GLP). I have investigated and seen these people convicted of being in care and control while impaired.
You've all heard the slogan "If you drink, don't drive!" and we can now add "If you are impaired, don't park either!"
- Care and Control of a Motor Vehicle While Impaired - Section 253 Criminal Code
- R v Thompsett - Case Law Regarding Care and Control from the BC Provincial Court
- 24 Hour Prohibition - Section 215 Motor Vehicle Act
When you talk about an ‘impaired instructor’ are you referring to someone who is licenced by ICBC to provided driver instruction, or are you talking about anybody who meets the criteria under MVA 30.06?
The MVA does not specify that an accompanying adult meet any other condition that the appropriate class of licence. I am curious how someone can be charged as having care and control when they are not driving and when there is no legal expectation other than they occupy a seat either in front or directly behind and to the right of the driver???
Can you clarify?
Actually, it would apply to both the accompanying person required by a GLP driver under 30.06 MVAR and an ICBC licensed instructor when they are instructing a GLP driver.
It's the Criminal Code of Canada that places the responsibility on the instructor rather than the Motor Vehicle Act. They are in care and control because they have the responsibility of insuring that the driver of the vehicle does operate it properly. If they are impaired by alcohol or a drug in that situation they may be convicted and sanctioned in the same manner as an impaired driver.
I have personally pulled two impaired convictions out of a single vehicle in my service. One was the impaired learner driver and the second was the impaired instructor. Both were convicted, the driver for actually driving while impaired and the instructor for care and control while impaired.
The newspaper re-titled it on me, it was supposed to be "Care & Control of a Motor Vehicle While Impaired."
Unless you are supervising a learner or novice driver, a passenger is not in care and control of the vehicle, the driver is. So, a designated driver or taxi driver would be in care and control (as well as driving) and the impaired passenger would have been doing the right thing, not driving and not being in care and control of the vehicle. They would have no fear of prosecution.
I have taken the opportunity to amend the article so that the last sentence of the first paragraph reads "If you are impaired, the best advice that I can give in most cases is to stay out of motor vehicles unless you have a sober driver that you are not supervising." Hopefully this will make what I was trying to convey more easily understandable.