Under Canadian law, you can face severe impaired driving penalties even if your car is parked and turned off. If you are sleeping in your vehicle in Calgary with the keys nearby, police can charge you under the concept of “care and control.” To fight this, your lawyer must prove you had no intention to drive and posed no realistic risk of putting the vehicle in motion.
Imagine leaving a pub on Stephen Avenue in Calgary, realizing you have had too much to drink, and deciding to do the responsible thing: sleep it off in your parked car instead of driving home. 🚗 You recline the seat, put the keys in your pocket, and close your eyes. Hours later, you are woken up by a tap on the window from the Calgary Police Service, and suddenly, you are handed a severe Immediate Roadside Sanction (IRS FAIL) or criminal impaired driving charges. This scenario shocks many drivers who genuinely believed they were making a safe choice.
The Canadian justice system views impaired driving through a very broad lens. Under Section 320.14 of the Criminal Code, it is illegal to operate a conveyance while impaired, but it is also illegal to simply have “care and control” of a vehicle while impaired. The law assumes that an intoxicated person sitting in the driver’s seat might suddenly change their mind, start the engine, and cause a tragedy. If you have been penalized for sleeping in your parked car, you need to mount a specific legal defence to clear your name.
Step-by-Step Process to Fight a “Care and Control” Charge in Alberta
Defending a care and control charge requires overturning the legal presumption that you were going to drive. 📍 Whether you are fighting a provincial IRS FAIL through SafeRoads Alberta or a federal criminal charge in court, here is the process your lawyer will follow.
Step 1: Managing the Police Encounter
If you are woken up by police, do not panic and do not over-explain. Provide your licence, registration, and insurance. The police will likely demand a breath sample. You must comply; refusing a breath test carries the exact same penalties as failing one. Be polite, but clearly state, “I was sleeping and had no intention of driving.” Invoke your right to remain silent until you can contact a lawyer.
Step 2: Appealing the IRS FAIL Notice
In Alberta, a first-time impaired driving offence (including care and control) is usually handled provincially as an IRS FAIL. 📝 Your licence is immediately suspended for 15 months, and your vehicle is seized for 30 days. You have a strict deadline of just 7 days from the incident to file an appeal with SafeRoads Alberta. You must pay a $150 non-refundable fee to initiate this review process.
Step 3: Building the “No Risk of Danger” Defence
Your lawyer will build your defence around the Supreme Court of Canada’s ruling in R. v. Boudreault. To win, your lawyer must establish two things: first, that you had a clear alternative plan (e.g., proof you ordered an Uber or called a friend to pick you up before you fell asleep), and second, that there was no realistic risk that you would accidentally or intentionally set the vehicle in motion.
Step 4: The SafeRoads Hearing or Court Trial
If you are fighting an IRS FAIL, your lawyer will submit written arguments and evidence to the SafeRoads adjudicator. 🏫 If the police decided to press formal criminal charges (such as for a repeat offender), your lawyer will take the case to trial at the Calgary Courts Centre, where they will cross-examine the arresting officer about exactly where the keys were located and how you were positioned in the car.
How Much Does an IRS FAIL Cost in Calgary?
Even if you never moved the car an inch, an IRS FAIL brings devastating financial consequences. The province of Alberta designed this system to be highly punitive.
- Mandatory Fines: The standard provincial fine for a first-time IRS FAIL is $1,000 CAD, plus a 20% victim surcharge.
- Towing and Impound: A mandatory 30-day vehicle seizure will cost you approximately $1,200 to $1,500 CAD in towing and impound lot fees.
- Educational Courses and Interlock: To drive again, you must pay for the “Planning Ahead” course (about $300) and rent an Ignition Interlock device for a year, which costs roughly $1,500 CAD annually in installation and maintenance fees.
- Lawyer Fees: Hiring a law firm to fight the SafeRoads suspension typically costs a block fee of $1,500 to $3,000 CAD.
Care and Control: High Risk vs. Low Risk Scenarios
How you behaved in the parked car drastically impacts your chances of winning the appeal. 🔍 Here is how adjudicators view different scenarios.
| Scenario | Risk Level | Legal Outlook |
|---|---|---|
| Keys in ignition, engine running for heat | Extremely High | Very difficult to win. The law presumes an immediate risk of driving. |
| Sleeping in driver’s seat, keys in pocket | Moderate | Possible to win if you can prove you had a separate plan to get home safely. |
| Sleeping in back seat, keys hidden in trunk | Low | Strong defence. Proves you took active steps to prevent yourself from driving. |
How Long Does the Suspension Last?
An IRS FAIL results in a total suspension period of 15 months. It begins with an absolute driving ban for the first 3 months. After 3 months, you can apply to the Alberta Ignition Interlock Program. If approved, you can drive for the remaining 12 months, provided you blow into a breathalyzer attached to your dashboard. If you win your SafeRoads appeal within the first few weeks, the suspension is cancelled immediately.
Frequently Asked Questions (FAQ)
What if my car was out of gas or broken down?
If the vehicle was physically completely incapable of being put into motion (e.g., the engine was removed or all four tires were flat), your lawyer can argue that there was zero risk of danger to the public, which is a strong defence against a care and control charge.
Does sitting in the passenger seat protect me?
It helps, but it is not a guarantee. The law states that if you are in the driver’s seat, you are presumed to have care and control. Sitting in the passenger seat removes that automatic presumption, forcing the police to prove you actually intended to take control of the vehicle.
Will a parked car DUI give me a criminal record?
In Alberta, most first-time care and control cases are dealt with via the IRS FAIL provincial program, which does not result in a federal criminal record. However, if there are aggravating factors, the police can choose to charge you under the Criminal Code, which could lead to a permanent record.
Can I beat the charge if I called a taxi before falling asleep?
Yes, this is one of the best defences. If your lawyer can produce cell phone records showing you ordered an Uber or called a cab before passing out, it proves you had an alternative plan and did not intend to drive the vehicle.
Is it illegal to keep the car running just to use the heater in winter?
It is incredibly risky. Even if you only turned the car on to avoid freezing in a Calgary winter, having the engine running while intoxicated makes it extremely difficult to prove there was no risk of accidentally putting the car in gear.
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