The Ontario Court of Appeal may have narrowed a common defence in drinking-and-driving cases when it ruled yesterday that a Georgetown woman who was found standing beside her car in a steep ditch off Airport Rd. had "care and control" of her vehicle.

The prosecution of Connie Banks was one of scores of "car in the ditch" cases and her conviction yesterday, said her lawyer, offers little hope for anyone charged with having care and control of a vehicle while their blood alcohol level is over the legal limit.

"I think the court is sending a message that they're going to interpret the current law as it relates to these cases so narrowly," said defence counsel John Collins, "that ... really, the only safe option for any citizen now is to not operate a motor vehicle under any circumstances after they've consumed alcohol."

Banks veered into the ditch at about 12:45 a.m. on April 14, 2008, while driving home from a visit with one of her daughters in Brampton. During her 4 ½-hour stay, she said she had consumed four bottles of beer.

Banks later testified that she had assumed her car was damaged and was reaching for her cell phone to call a tow truck when an officer arrived at 1 a.m. The keys were out of the ignition and the lights were off as she stood outside.

Breathalyzer tests at 2:52 a.m. and 3:13 a.m. showed Banks had .120 and .119 milligrams of alcohol per 100 millilitres of blood — over the legal limit.

But because the Criminal Code required the tests be administered within two hours of a person being in "care and control" of a vehicle, the case turned on whether Banks was in control of her car as she stood next to it in the ditch — and whether she could have set it in motion, placing the public at risk.

A trial judge convicted Banks, saying even though she had planned to have her car towed, there was a possibility that after getting it pulled from the ditch, she might have decided to drive it anyway.

Last year, however, Superior Court Justice David Corbett overturned that decision and acquitted Banks. The Crown was required to prove Banks would have driven home but it didn't establish that beyond a reasonable doubt, he said.

Yesterday, Collins argued it was "fanciful" to think Banks might have continued on her journey after being pulled out by the tow truck.

That could only have happened, he told the court, if she had been able to persuade the tow truck driver to take it off the hoist and conduct a mechanical inspection, in fog and darkness on a busy road, to see if it could be driven.

Still, a three-judge appeal panel ruled yesterday it was open to the trial judge to have concluded Banks might have driven the rest of the way.

Loading... Loading... Loading... Loading... Loading... Loading...

"These are very hard cases," said Justice Michael Moldaver. "But, as you know in your heart of hearts, the best way to avoid these things is to not be in a position of being `over 80'."

The court reinstated an $800 fine that had been imposed on Banks by the trial judge. The conviction also carries an automatic 9-month license suspension, the prospect of high insurance premiums and a requirement that a breathalyzer be installed on her car ignition.