Can I be charged with a DUI even if I wasn’t driving or the vehicle wasn’t moving (care or control)?
It is surprising to many people that in fact, you can be charged with Impaired Driving, and driving Over 80, even if the vehicle wasn’t moving. Technically, the charge is not “Impaired Driving” or “Driving Over 80”. Section 253 of the Criminal Code indicates that it is an offence to “operate” or have “care or control” of a motor vehicle while impaired/over 80. Even if the charge against you says that you are charged with Driving While Impaired/Over80, you can still be convicted of the care or control portion. This is because “Impaired Care and Control”, and “Care and Control Over 80”, are included offences of s. 253 under the Criminal Code.
Thus, even if you were not driving the vehicle, you can be convicted of Impaired Driving/Over 80 if you were in your vehicle and there was a reasonable risk that you might drive. Factors that the Court will consider in determining whether there is a reasonable risk include whether the vehicle was operational, whether the keys were in the ignition or in easy access of the occupant (you), whether you were located in the driver’s seat, etc.
In fact, if you were located in the driver seat, there is a presumption that you were in care or control of the vehicle. That presumption can be rebutted by establishing that you did not occupy the driver’s seat for the purpose of setting the vehicle in motion. But even then, the question reverts back to whether there was nevertheless a risk that the vehicle could become a danger because of your occupancy of it.
The minimum penalties for a care and control conviction are the same as if you were actually driving the vehicle, so equal effort must be put into a solid defence to these charges.
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