R. v. E.W. – Care or control not proven, Charge Dismissed

Our client was charged with Care or Control of a Motor Vehicle while Impaired by Alcohol. Shortly after last call, on a cold winter night, the police observed a motor vehicle parked in a parking lot outside a bar, with the engine running and the windows fogged up. The police knocked on the window and our client rolled down his window. It appeared to the officers like our client had just woken up. They smelled alcohol coming from his breath and observed signs of impairment. The police arrested our client for impaired care or control. At trial our client testified that he had been drinking at the bar with his friends and had originally planned to be the designated driver but then ended up drinking more that he should have. His friends called taxis while our client called his parents who had agreed to come and pick him up and drive his car home. Because it was a cold night, our client had turned on the engine of his car so he could have the heater on. The police arrested our client before his parents arrived. At trial, our client and his parents testified about the plan and we presented phone records to corroborate it. The judge accepted that the presumption set out in 320.25 was rebutted and had a reasonable doubt on the issue of there being a realistic risk of danger created by our client’s conduct in relation to the vehicle. The charge against our client was dismissed.