Impaired Care & Control

Care and control while impaired happens when the police find a person sitting in, stopped in, or even standing near a motor vehicle, and determine they have the care and/or control over the motor vehicle while they were impaired by alcohol or drugs.

The penalties for impaired driving care & control are serious and are the same as if you were arrested for impaired driving:

• a criminal record for life
• jail for serious or repeat offences
• a fine of $1000 to $2000 dollars
• immediate 90 day licence suspension
• upon conviction an additional one year license suspension
• driver licence reinstatement fees of 600 dollars
• mandatory Ignition Interlock installed in any vehicle
• insurance rates of over $10,000 per year for 5 years
• possible loss of employment

A conviction for impaired driving can cost over fifty thousand (50,000) dollars in increase insurance rates, fees and fines over five (5) years.

In Canada, being charged with impaired driving means you were actually driving a vehicle while impaired, while impaired care and control means you were in a position to drive (like sitting in the driver’s seat with the keys nearby) even if the car wasn’t moving.

The key difference is whether you were actively operating the vehicle or just had the ability to operate it. Here’s the quick breakdown:

• Impaired Driving: You were driving — even a few feet — while impaired.
• Impaired Care and Control: You weren’t driving, but you had control over the vehicle and could have driven.

Both charges are treated equally seriously, with the same penalties like fines, driving bans, a criminal record, and insurance increases.

Even just sitting behind the wheel while impaired can get you convicted — so it’s critical to understand how the law applies even if you didn’t think you were “driving.”

Everyone is entitled when charged with a criminal offence to defend themselves in court. You may feel that if the police have arrested you for impaired driving that you’re automatically guilty, which is wrong.

For every impaired driving charge there are issues and defences available.

For the police and the crown attorney impaired driving care & control can be proven by:

• use of the vehicle, or
• the vehicle was able to be put in motion,
• that the driver intended to drive the motor vehicle
• the driver had the ability to drive and operate the vehicle

Showing that the accused’s ability was impaired by physical symptoms, e.g. unsteady on feet, slurred speech, strong smell of alcohol with results of a breathalyzer test would be used as evidence.

Impaired driving care and control defences can include issues such as:

• right to speak with a lawyer in privacy
• have the police done everything properly
• right to have your trial in a reasonable period of time
• collection of evidence against the accused. e.g. breathalyzer tests
• have documents been properly submitted and prepared at the court
• can the prosecution prove the case beyond a reasonable doubt

There are defences to impaired driving charges, and at Charitsis Law we know the law on drinking and driving.

The accused thought they were doing the right thing by sleeping in the vehicle rather than driving while impaired.

Many people believe they are doing the right thing by avoiding driving after drinking.

They may try to “sleep it off” or wait for the effects of alcohol to wear off — but if they remain inside their vehicle, they can still be charged with care and control while impaired.

Courts in Canada take the position that simply sitting in a motor vehicle gives you care and control of it.

If your ability to drive is impaired by alcohol or drugs, there is a real risk you could unintentionally set the vehicle in motion, which creates a danger to the public. As a result, even if you had no intention to drive, you can still face a criminal charge for impaired care and control.

When the police collect evidence for a care and control while impaired charge, including a breathalyzer test, there are strict rules they must follow. Breathalyzer tests must be conducted properly and legally, and any improperly collected evidence can provide a strong defence against an impaired care and control charge.

To use breathalyzer results in a care and control while impaired case, the police must ensure:

• The test is taken within the legally required time limits.
• A qualified breathalyzer technician administers the test.
• The breathalyzer test is usually completed within two (2) hours of the alleged offence.
• Proper notice of the breathalyzer demand is served on the accused.
• Breathalyzer results are properly reported and entered into court evidence.

At trial, the Crown must prove that the breathalyzer test was conducted correctly.

Either the breath technician or the arresting officer must testify to confirm the proper collection and handling of the breath samples.

Breathalyzer evidence is highly technical, and police must follow strict procedures when laying care and control while impaired charges. If mistakes are made — such as missing time limits, failing to properly serve notice, or incorrectly administering the test — the evidence may be ruled inadmissible. In many cases, these errors can lead to your charges being dismissed or “stayed” by the judge.

Proper legal representation can make the difference when challenging breathalyzer evidence in impaired care and control cases.

Breathalyzer tests must be done properly and legally. If there is a mistake or your rights have been violated, the proper remedy for the judge to do, is to dismiss or “stay” the charges

The accused did not received their right to counsel or a lawyer.

In Canadian law, the Canadian Charter of Rights and Freedoms says that:

• if you are charged with a criminal offence then it is your right to speak to a lawyer
• the call must be done as soon as possible.
• you have the right to speak to the lawyer in privacy without anyone or a police officer being present.
• you have the right to speak you a criminal lawyer of your choosing, and
• the police must make reasonable steps to put you in contact with that lawyer.

Where your rights as a Canadian citizen have been violated, the proper course of action for the judge hearing your case is to dismiss or stay (withdraw) the charges.

As a Canadian citizen if you are charged with an offence in Canada you have a right to have your case heard by a judge within a reasonable period of time.

The time that is considered reasonable for a criminal matter is about eighteen months (18) months.

If your case takes more than eighteen months (18) months to come to trial as your lawyer I can file a complaint to the judge to have your charge dismissed.

This is called an 11b Application under the Canadian Charter of Rights and Freedoms.

The police officer is under strict rules for arresting a person for impaired driving.

The officer has to properly:

• place the driver under arrest
• read the driver your rights to counsel
• read the driver a breathalyzer demand
• ensure the driver understands what they have been told
• ensure that the breathalyzer test is taken as soon as possible
• ensure that all evidence is collected properly and legally
• ensure that the case is prepared for trial and that all documents are properly prepared

This is partial list of requirements upon the police in arresting and charging the accused; there are many more issues that can arise at trial.

The testimony of the police officer a impaired driving care and control trials can be in issue.

Many times police officers are able to write out the report, but when the case comes to trial months later the officer may have issues regarding what actually happened.

In a trial for impaired driving, the police have to prove that you are guilty beyond a reasonable doubt. This means that the police have to prove to the judge that you are 100% guilty of the charge.

For example should the judge say that they are 90% sure the accused committed the offence but they have a 10% doubt in their mind, then the judge should dismiss the charge.

Where there is a tie, a tie goes to the accused.

In trial for impaired driving, the police and prosecution have to prove these five (5) things:

• where did the incident happen?
• what happened, that an offence was committed
• who did the deed, the identity evidence, who did it?
• when did the incident happen? there are time limits
• how did the incident happen?

If the police and crown attorney cannot prove any of these issues, the case can fall apart and the charges maybe dismissed or withdrawn.

Speak to a Lawyer About Care and Control While Impaired

If you’re facing a care and control while impaired charge, call us at 416-731-7113 for a free, private consultation — no fee and no obligation.

You’ll speak directly with Toronto Criminal Lawyer Nicholas Charitsis, who will listen to your case, review any police documents you send (please use the form on this page), and give you a clear opinion about your situation, including:

• defences to your care and control while impaired charge,
• legal arguments that may apply, and
• steps you can take to strengthen your defence.

If you decide to retain our services, we’ll meet either at our office or by Zoom to plan your defence and prepare for your first court date. We ask for a reasonable deposit of 10–25% to get started.