Grabbing a jacket from your car outside the pub? May as well be driving

If it wasn’t clear that BC’s impaired driving laws are overly restrictive, the courts have determined that you aren’t even allowed to grab an item from a car after a few drinks. So did you arrive at the bar in the late afternoon and now it’s getting chilly after dark? Better wait until you’re sober before you grab that jacket you left in the car. Forgot the cigarettes in the cup holder, too? Well, unless you want to risk an Immediate Roadside Prohibition for impaired cigarette-grabbing, it’s probably best to leave them alone. Oh, what if you forgot your wallet in the car? We’re not saying it’ll work, but it might just be a good excuse to not pay the tab! (Until you’re sober, anyway.)

You can’t make this stuff up. These were the comments from an actual BC Supreme Court decision in February 2017:

“In the present case, the officer was dealing with a realistic risk that presented itself to him. There was no realistic chance the petitioner was going to drive after he had stopped her and evaluated the situation … The situation in the present case is that the petitioner, in a position to move the vehicle, was stopped and responded to the demand. Whether she had the intention of putting the car in motion was really secondary to the fact that she was in the driver’s seat.”

As lawyers, we really do not like laws that punish people because they could potentially break the law, even if they had no intention to do so. That’s like ticketing a person waiting at the curb of a street for jaywalking, to prevent the possibility that they may jaywalk at some point in the future.

Woman and friends who left their jackets in the car, was given an IRP

The case in question happened in March 2016 in Nelson, BC. An officer saw a group of people get into a vehicle and saw the brake lights of the car come on and off. There was no evidence suggesting that the person in the driver’s seat had her keys in the ignition, nor was there any evidence that she had any intention to drive. In fact, it was raining at the time, and the group had intended to grab their jackets from the vehicle before leaving the car parked overnight. The group had also just witnessed some sort of fight or altercation, and were in the middle of a chat about it when the officer rapped on the window.

When the prohibition was reviewed, the woman also suggested that no consideration was given to whether anyone in the vehicle had snapped their seatbelts on, which would have shown the officer whether she intended to drive or not. The court also accepted that the woman was cooperative with police from the outset, not resisting in the slightest way. In other words, this was a person who did not intend to break the law.

The grounds to uphold an Immediate Roadside Prohibition are very low

So why would the law punish someone for an offence they had not committed, when there was no evidence to show that they had intended to commit the offence? In our view, it’s a trust issue. It’s established that people who are intoxicated have “impaired judgement,” and the court sort of uses this to say, well, we can’t trust you not to drive, since you’re already drunk. (Never mind the four friends also in the car that could drive for you).

From a cited BC Supreme Court case on the matter:
“Impaired judgement is no stranger to impaired driving, where both are induced by the consumption of alcohol to drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case.”

It’s the risk of driving while impaired that the courts seem concerned about – which applies to just about anyone in the province over the age of 19 with a driver’s licence. We are all able to drive, and able to consume alcohol. It follows that we are therefore all able to commit the offence of impaired driving. So it’s probably not too much of a stretch to say that if we were in the same situation as the woman in this case, we’d also be accused of an offence we didn’t commit.

So. Leave the smokes in the car. Stay cold and wet. Don’t pay the barkeep until you’re sober. Whatever you need to do. These are the rules we live with.

But if you find yourself in a situation like this, call us. 604-685-8889. We know impaired driving law and we’ll do our best to help.