Occupant in stopped Car is found ‘not guilty’ of DUI despite registering ‘over 80’

In a 2018 trial, R. v. Subramaniam, drunk driving charges were dismissed against a man who was under the influence of alcohol when he was discovered in the driver’s seat of a stopped car.  A tow truck driver phoned police when he came upon a disabled vehicle at the side of a Hwy 401 off-ramp in Toronto, containing a man and woman who he believed had been drinking.  The vehicle occupants were sitting in the driver and passenger seats of the stopped car which appeared to have been involved in a single-car collision and also appeared undriveable, based on damage to the front-left suspension. When the tow truck driver pulled up, the accused exited from the driver’s seat of the car and admitted that he had attended a Halloween party that evening and had called CAA for a tow truck.

When the CAA driver arrived at the scene, the tow truck driver told him that the accused was drunk, so the CAA driver refused to tow the car and left. The first officer at the scene arrested, and demanded a breath sample from, the man who had been sitting in the driver’s seat, after speaking to the accused and observing the smell of alcohol on his breath.  The officer also noted that the accused appeared to be slow and unfocussed when producing his documents and his eyes appeared red, glossy and bloodshot.  When the breath test registered a fail and because the accused was in the driver’s seat, the man was arrested on the charge of ‘over 80’. Two breath samples later indicated a blood alcohol concentration (BAC) of 150 mg and 140 mg, respectively, in 100 ml of blood.  Although the officer did not initially believe the accused was impaired, police subsequently charged the man with impaired driving (in addition to the ‘over 80’ charge) based on the breath sample evidence.

Some of the key evidence considered at the trial included the following.

• The vehicle was disabled; this was confirmed when the car refused to start when being towed after the arrest.  This fact supports the supposition that the driver was involved in a single car collision, likely within one hour of being discovered at the side of the road (based on the tow truck driver’s evidence that he did not see the car at the scene when he drove by one hour earlier).
• There was no direct evidence that the accused had been operating the vehicle before 2:00 a.m. when the car was discovered.  Nor was there evidence pertaining to the ownership of the car.
• Two sets of car keys were found: one on the front seat of the car and a second key in the accused’s pocket.
• There was another person in the vehicle.
• The accused had contacted CAA asking for a tow.

Based on the evidence, the judge decided that he could not conclude beyond a reasonable doubt that the accused was driving the car at the time of the accident. There was a reasonable possibility that someone else could have been operating the vehicle and the accused may have been a passenger.  Further, when the vehicle was discovered, the evidence supports a belief that the accused did not intend to drive the car – he was aware that the car was undriveable and had called for a tow truck.

In making his decision, Justice Silverstein referenced Justice Fish in R. v. Boudreault (2012), where the test for care or control requires: 1) an intentional course of conduct associated with a motor vehicle; 2) by a driver who is impaired or whose BAC exceeds the legal limit; and 3) circumstances creating a realistic risk of danger to persons or property.  Justice Fish noted that despite an accused’s intention to not put a vehicle into motion, a realistic risk of danger may arise if the inebriated person changes their mind and proceeds to drive, or unintentionally sets the vehicle in motion, or otherwise endangers persons or property through negligence or poor judgement.  Based on an examination of all the circumstances involved in this case, Justice Silverstein concluded that no intentional actions by the accused created a realistic risk of danger. The accused indicated he had no intention to drive – he had called for a tow and was awaiting the CAA truck. The only possible danger to passing motorists was due to the accident and the car’s position at the side of the ramp, and the driver did nothing to exacerbate any dangers.  Finally, even if the accused changed his mind, the car could not be driven.

Regardless, the circumstances of the accident were rendered irrelevant in this case since the evidence does not prove that the accused was actually driving under the influence of alcohol. There was also no evidence supporting the charge of impaired driving – the arresting officer testified that, at the time of the arrest, he did not believe there were probable and reasonable grounds to believe that the man’s ability to drive was impaired by alcohol. Given the absence of evidence of impairment and reasonable doubt whether the accused was driving under the influence, the accused was found ‘not guilty’ on all drunk driving charges.

Conviction on any drunk driving charge will result in serious consequences for an accused person. For a first offence, a convicted person faces a driver’s licence suspension of 1 year; a mandatory education or treatment program; a mandatory medical evaluation (which may result in further licence suspension); and the offender must use an ignition interlock device for a minimum of 1 year.  The penalties increase with each additional offence and may result in a lifetime licence suspension when convicted of 3 or more offences within 10 years. 

The Ted Yoannou criminal law team offers over 20 years’ experience successfully defending persons accused of DUI-related offences and you can be assured that we will apply our considerable resources and expertise in achieving the best possible result.