RSBC v. MAK — IRP APPEAL – SUCCESSFUL – DRIVER FOUND ASLEEP IN CAR BY AMBULANCE DRIVER WHILE PARKED ILLEGALLY ON ROADWAY NEAR HOSPITAL – DRIVER PRODUCES ASD FAILS ON TWO SEPARATE ASD TESTS – ON APPEAL DRIVER FOUND TO BE NOT IN “CARE AND CONTROL” OF VEHICLE OR A “DRIVER” WITHIN THE LEGAL MEANING OF THE LEGISLATION — PROHIBITION REVOKED
Facts: At 3:12 am on December 4, 2014, an ambulance driver (EHS) noticed the driver, MAK, asleep in his car stopped “southbound facing a stop sign” at a major intersection with the engine running. Police were alerted and attend moments later finding MAK asleep at the wheel. MAK was alleged to have slurred speech, strong odour of liquor on his breath, red and hazed, and could not spell his name correctly (3x) when requested by the police. When asked he said he last drink was at “7:00 pm”. Police demand a breath sample of MAK who provides two “FAIL” RESULTS of two different ASDs. MAK is served with an IRP driving prohibition. MAK appeals his IRP with the help of counsel. At the IRP oral appeal MAK files an Affidavit wherein he swears that he had parked at a spot directly across the hospital in an illegal parking spot. The intersection was described as a quiet T-intersection so that vehicles could only turn right from the stop sign. MAK swears he was visiting his ailing mother at the hospital, left her at the hospital at 11:00pm, walked over and ate at a nearby bar/restaurant where he consumed 2 pints of beer before returning to visit his ailing mother after 12:30 am. As his mother was in perilous condition he decided to stay at the hospital just in case things got worse. As he could not find anywhere comfortable to sleep he re-attended his vehicle, turned the ignition on so that the heater could be engaged, put his seat back and used his jacket as a makeshift blanket. He slept in the illegally parked vehicle with the intention of checking on his mother’s condition and being with her in the morning if she made it through the night. He was awakened by the police and indicated in his Affidavit that he advised them he was not planning on driving anywhere. He disputed that he told the officer that he last drank at 7:00pm contesting that he said “11:00pm” and that the officer made a mistake. ON the IRP oral appeal hearing MAK’s lawyer, Jamie Butler, argued that though MAK was legally drunk and the ASD results were accurate, that MAK had no intention of driving anywhere while he was under the influence of alcohol and was using his vehicle simply as a sleeping vessel. It was argued that he was not a “driver” as he was not in “care and control” of the vehicle. Caselaw regarding the legal issue of “care and control” was presented at the IRP oral appeal. The adjudicator agreed. Decision: “Having considered the evidence before me, I am not satisfied that you were a driver within the meaning of section 215.41(1) of the Motor Vehicle Act”. Driving prohibition revoked, no fines imposed, towing and storage fees paid by the RSBC. (December 2014).
