Our client was charged with Care or Control of a Motor Vehicle while Impaired by Alcohol. On a Sunday evening, a homeowner called 911 to report that across the street from his house, someone appeared to be passed out in the driver’s seat of a car with loud music playing on what was normally a quiet residential street. The homeowner claimed that he was concerned that the occupant of the vehicle may be suffering from a medical condition. Firefighters and police arrived on scene and, after some effort, were able to wake up our client who was observed to be showing signs of intoxication. The police arrested our client for impaired care or control of a motor vehicle. At trial, our client and his wife testified that they had gotten into an argument that evening due to the fact that our client had been home drinking all day. They both testified that our client had been home all day with his family and that he had been putting furniture together (and drinking beer). Our client testified that because he wanted to keep drinking and did not want to continue arguing with his wife, he brought a beer with him to his car that was parked on the street around the corner from his house. Although the homeowner who called police claimed that the engine was running, the firefighter who had woken up our client testified that had taken the key out of the ignition and that it was in the auxiliary mode so that the radio had power but the engine was off. The judge rejected the evidence that the engine was running because of the contradictory evidence from the firefighter and because it was unlikely that anyone would have heard the engine if it had been running because of how loud the music was. We successfully rebutted the presumption set out in section 320.25 of the Criminal Code as the judge accepted that our client had intended to sit in his car and drink beer while listening to music and that he had not intended to drive anywhere. The judge also had a reasonable doubt on the issue of there being a realistic risk of danger because the car was parked safely at the side of the road, the car was in park and there was no realistic risk that our client would accidentally put the car in motion. The judge also found that there was no realistic risk that our client would change his mind and decide to drive because he had nowhere to go and was so close to his home. The charge against our client was dismissed.
