Care and control of a motor vehicle while impaired

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 for impaired driving or receive an immediate roadside prohibition.

Simply being able to set the vehicle in motion, engine running or not, may be enough because you have care and control of the motor vehicle while you are impaired.

If you are impaired, the best advice I can give in most cases is to stay out of motor vehicles unless you have a sober driver.

The Criminal Code of Canada defines "care and control" of a motor vehicle as being responsible for a motor vehicle in circumstances that create a realistic risk of danger to people or property:

• If the person is impaired by alcohol or drugs

• If the person has access to the vehicle, such as having the keys

• If the person has the intention to drive

• If the person is able to drive

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 seats. Police will investigate as if you were an impaired driver of a moving vehicle and unless there is evidence to show otherwise, allege you had the capability of setting the vehicle in motion.

At your trial or immediate roadside prohibition review, it is up to you to show you did not intend to drive. If you are not successful, you may be convicted or the prohibition may be confirmed. The penalty is the same as if you were found driving.

If you are charged criminally, a fine, various prohibitions,10 penalty points and a criminal record could result (if convicted).

While an immediate roadside prohibition will not give you a criminal record, the costs include the vehicle impound, administrative and licence reinstatement fees and at least three days without driving.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.