People often ask me how they can be arrested for impaired driving when they weren't even driving their car.

Usually, this is a result of a police officer happening upon an individual sitting in the driver's seat of their car and investigating them after suspecting they've been drinking, or believing their ability to drive is impaired by alcohol. The end result often is the arrest of the person when they were just sitting in their vehicle, sometimes sleeping and other times listening to their favourite radio station.

Known as care or control, it essentially means that you have the ability to set your car into motion while under the influence. If you're sitting in the driver's seat, it's presumed you are in care or control of that car. It doesn't matter if the car is yours or that the keys weren't in the ignition or you were just waiting for your friend to come back. You could be arrested, charged and then face a burden at your trial to show you didn't sit in that seat to drive the car. I find it comes as a surprise to many.

Some people, whether through past experience, talking to friends,or consulting with a lawyer at a dinner party, have learned the above legal lesson and determined that should they ever find themselves on the side of the road or in the parking lot of a watering hole at 3 a.m. and not in a condition to drive, that they would make their way to the backseat of the car, take their shoes off and get some sleep. After waking up from this restful slumber, they would determine how to get home. Home free right? Not exactly.

Just because you're not sitting in the driver's seat doesn't mean you can't be arrested (and possibly found guilty of a criminal offence). Care or control can be established when there is a risk of danger in relation to the occupant and the vehicle; either the danger that the vehicle will be set into motion or some other kind of danger.

The recent Court of Appeal case of R. v. Smits deals with one such danger: that the occupant who decided not to drive will change their mind and drive while impaired.

The accused in Smits was found on the side of a rural road in the rear seat of a motor vehicle sleeping after a neighbour called the police out of concern the occupant of the vehicle may be dead. When police investigated they saw the accused near-comatose in the backseat and in an intoxicated condition when he finally woke, the keys in the ignition and open alcohol in the car.

While Smits may have felt he was in the clear, the trial judge (eventually supported by the Court of Appeal) disagreed. The court clarified the test that for that risk of danger to be made out, the conduct of the occupant in relation to the motor vehicle must create a risk that the accused while impaired would put the car into motion and create a danger. Relevant conduct by the court included that the accused had not arrived home but intended to go there, that the keys were in the ignition, and that the accused was in a volatile mood by virtue of his significant impairment. As a result, that accused was found guilty of having the care or control of a motor vehicle while impaired by alcohol. The result provides a sobering lesson.

This case as well as others in this area of the law confirm the need for the exercise of caution for any individual in an impaired condition assuming a position of control in relation to a motor vehicle. Although it may seem to be a good idea to "sleep it off" in the backseat and arrange a ride to your final destination in the morning, that thinking may result in a trip to a destination not originally contemplated. Each case like this is decided on its own specific facts and the addition of some facts not found in this case, or the removal of others, may very well lead to a different result.

That said, and leaving aside whether you agree with the legal framework at play, it provides a cautionary tale for occupants found in similar circumstances.

This post originally ran on AdvocateDaily.com