Deciding to Sleep It Off Isn’t the End of Avoiding Impaired Driving Charges

December 30, 2016

Unless you enjoy spending time in police cars, lawyers’ offices, and courtrooms, it’s safe to assume that you have an implied resolution to not pick up any drinking and driving charges in the New Year. You should already know how unwise it is, for the sake of your own legal jeopardy and for the sake of public safety, to drive anywhere if there’s any question in your mind as to whether you’ve had too much to drink. You should also know that police can conduct a roadside breath test if they suspect that you’ve had anything to drink recently, and that your licence can be immediately suspended even if your blood-alcohol concentration doesn’t quite exceed the criminal legal limit. However, there are a couple situations where you might think you’re doing the right thing and are being responsible, but which may nonetheless land you with an impaired driving charge -- and potentially a criminal conviction. These situations may seem like obvious legal hazards to some of you, but professional experience tells me that people are frequently caught up in them. A little basic information on how the law works can help you avoid such circumstances.

Sleeping It Off May Not Be Enough After a Big Night Out

The LCBO used to run anti-drinking and driving commercials showing people happily reuniting with their cars in the morning as the sun came up. The implication of these scenes was that the people drank the night before and got a ride home and left their car behind, and now that it was morning they could retrieve their vehicles and drive home. There was a very good reason for the LCBO to stop running these commercials: they gave the false impression that when you wake up in the morning after a night of drinking, you are automatically cured of the effects of alcohol and relieved of any concern about impaired driving.

When you wake up feeling terrible after a night of partying and boozing, you might assume that it’s just a hangover; that you have a pounding headache and a sick stomach, but that you can still drive. In reality, your Blood Alcohol Concentration (BAC) could still be well over 80 milligrams of alcohol in 100 millilitres of blood. Alcohol that gets absorbed into your blood after consumption gets eliminated at a specific rate over time, depending on your gender, size, body type, and a range of other factors. If three drinks is enough to put you over the limit, and your body eliminates the equivalent of one drink per hour, then it’s easy to calculate drinking a scenario wherein six hours of sleep after a night of consuming a large quantity of drinks would not be enough to bring your BAC below 80. If you then start driving in that state immediately after waking up, you’re committing a criminal offence.

Also be aware, as I’ve stated in other articles, that you can still be charged with and convicted of impaired driving even if your BAC is below 80. The separate charge of Impaired Operation of a Motor Vehicle is proven by the voluntary consumption of alcohol (which is legally presumed) and operating a motor vehicle while your ability do so is in some way affected by the alcohol in your system. Your BAC might be below 80, but if you crash your car in the morning and still smell like a distillery from the night before, telling the police that you just have a really bad hangover isn’t going to get you out of being charged.

On that note, be clear in understanding that it is no defence to a charge of Over 80 or Impaired Driving that you thought you were okay to drive because it was the next day after a night of drinking, or that you slept for several hours after your last drink. The law puts all the responsibility on you as a driver, and it is not a defence to the charge that you figured or calculated that you were okay to drive (this is the case even if you used a privately owned breath-testing machine before driving which said your BAC was below the legal limit). This isn’t to say that there won’t be any defences available or ways to defeat the charges at trial, but claiming that you thought you had waited long enough before driving isn’t one of them.

Rest assured that police are well-aware that people frequently get back on the road in the morning with too much alcohol still in their system, and that police have deployed resources in response to this. It’s not uncommon to see RIDE programs set up at 8:00am in some areas, or even in the afternoon. The police are out there looking for intoxication in morning drivers, whether at RIDE programs or routine traffic stops. If you get arrested at 10:00am for impaired driving, you won’t have to rouse from sleep that friend or relative who you have to call to give you a ride home from the police station, but they still probably won’t be too happy with you.

Sleeping it Off in Your Car Can Be a Big Risk

The driver’s seat of your car is a very bad alternative to a hotel room or crashing on a friend’s couch. Under the Criminal Code of Canada, you are presumed to be in care and control of a motor vehicle if you are occupying the driver’s seat. That means that to prove the “driving” part of any drinking and driving charge, you are as good as driving if you are sitting in that driver’s seat, whether the car is on or off, and whether they keys are in the ignition or not. This is sometimes referred to having “care and control” of a motor vehicle as opposed to being in “operation” of a motor vehicle, but they are equivalent in law and both lead to conviction for the same offence.

If the police find you sleeping in the driver’s seat, and you are drunk, they’re going to arrest you, charge you with impaired driving, and test your breath to determine your BAC. It may be that you only sat in that driver’s seat in order to sleep and had no intention of driving any time soon, but the burden will be upon you at trial to raise that issue and to rebut the presumption that you were in care and control of the motor vehicle.

Furthermore, rebutting the presumption is not quite as simple as explaining that you were just sitting there to sleep it off and that you weren’t going to drive until you were sober. In determining whether you were in care and control of the vehicle, the law instructs a judge to assess whether there was a realistic risk of the vehicle being put in motion. If such a risk exists, the presumption of care and control over the motor vehicle stands. Since drunk people are notoriously bad at determining whether they are sober enough to drive, a judge may find a realistic risk of the car being put in motion by an impaired driver where an accused person found drunk behind the wheel claims he wasn’t going to drive until he had sobered up. A realistic risk of putting the vehicle in motion could also be found if the circumstances indicate that the vehicle could be put in motion accidentally by the drunk person occupying the driver’s seat.

You may think that you can avoid this problem completely by sleeping in the passenger seat or in the back seat of the vehicle. Not so fast. If it’s cold outside (which it is at least half the time in most parts of this country) you’re probably going to want to turn the car on for heat. The fact that the car is running may be enough for a police officer to decide to charge you with impaired care and control of a motor vehicle. Worse still, if you go to sleep in the front passenger seat and end up slouching over onto the driver seat, the Crown may try to rely on that as presumed care and control of the motor vehicle! It may not be right, and the prosecution may not end up having a very strong case (unless you fail to exercise your right to silence and say something to the police that they can use against you), but you’ll still go through the embarrassment and hassle of being arrested and having your licence suspended, as well as incurring the expense of going to court.

The bottom line is this: if it’s the kind of situation where you can sleep in the backseat of your car, with the car turned off on and all of the parking brakes engaged, and with the keys locked up in the trunk, you might be okay. Aside from that, you’ll want to sleep somewhere else to ensure that you don’t end up sleeping in a cell.

I’ve successfully represented people in extreme examples of all of the above situations, and if you find yourself charged you should never make a decision based on your own opinion that a situation is “hopeless” without speaking to a lawyer qualified to deal with these kinds of cases. However, the last thing you want is to get charged with a crime when you thought you were making a responsible decision. With the above information, hopefully you can be a little smarter about being responsible.

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