Sleeping in vehicles after a few drinks will likely result in an Immediate Roadside Prohibition if an officer comes up to tap on the window. It sort of makes sense. If you have the car keys with you and you’re drunk in a vehicle, the officer can’t tell whether or not you’re about to drive. After all, a car is generally a means of transport.
But sleeping in your car, even while over the limit, may be defendable.
Lee’s client was in the driver’s seat. She and her friend had stopped for the night and, wanting to save money on a hotel, slept in the car. They split a bottle of wine earlier in the evening. The keys were in the ignition to keep the vehicle heated, but the engine was not on.
When an officer knocked on her window, Lee’s client found herself with her vehicle impounded and a 90-day roadside suspension. The adjudicator on her case determined her appeal was not credible because she told the officer she was “waiting for a friend.”
Lee’s client appealed to the B.C. Supreme Court. The Supreme Court felt because the adjudicator ignored that vehicle had been parked for nearly five hours, the driver and her passenger were in their pajamas, and the cold justified keeping the heat on, the case should be remitted back to the Superintendent of Motor Vehicles.
When can you sleep in a vehicle after a few drinks?
You’ll be fine if you’re not over the warn limit of .05. The real question is when you’re able to sleep in a vehicle despite being over the limit. Generally, the answer is no if the prosecution can prove that you were in “care or control” of a vehicle. Ask yourself a few questions. Do you have the keys in the ignition? Are you in the driver’s seat? Can you reach the vehicle’s controls from where you’re sleeping? How long has the vehicle been parked? Are you dressed like you will be going back out? These are all factors that can affect whether you receive an IRP, and if you do, whether the IRP can be successfully appealed. We have even seen cases where someone was given an IRP for simply entering their vehicle to retrieve items in the car.
When these things are tested in court, one case often cited is R v. Toews, where an intoxicated man was found asleep in a sleeping bag, with keys in the ignition, albeit on private property. In the Toews case, ultimately it was determined that “care or control” of a vehicle must “involve some use of the car or its fittings and equipment.” The fact that the man in this case had a sleeping bag demonstrated to the court that the occupant meant to use the truck as a place to sleep. He wasn’t in the driver’s seat, either, and was unconscious at the time when police first arrived. There was also no evidence that the occupant placed the keys in the ignition – it was a friend who drove him to the location. The charge against him was dismissed.
If you’re planning to be sleeping in vehicles it’s a good idea to keep a few things in mind. Don’t sleep in the driver’s seat. Don’t keep the keys in the ignition. Where possible, put the keys somewhere out of reach, such as inside a bag or a purse. If you are forced to put the keys in the ignition, such as to turn on the heater in extreme cold, make sure you leave the driver’s seat. If you received an IRP even after making sure you were not in care or control of the vehicle, it’s a good idea to contact an IRP lawyer to discuss your options.
Victoria planning to allow drivers to sleep in vehicles
Whether you can sleep in a car while drunk is even more relevant, now that the City of Victoria believes letting people sleep in cars would be a good a plan to deal with homelessness. Like so many lawmakers before them, city officials are trying to come with novel and effective solutions to a housing crisis that has engulfed many communities in Canada. Their bright idea? To allow people to be sleeping in vehicles as if they were homes.
Thanks to the city’s Streets and Traffic Bylaw, sleeping in a vehicle overnight while parked on city property is currently illegal. The proposal has the support of the city’s mayor and is making its way through council. If approved, people will be allowed to be sleeping in vehicles on public streets while vacancy rates are low.
What the proposed amendment says:
Section 84(3) An exemption to the provisions of this section shall occur when the CMHC vacancy rate for Victoria is at 3% or lower. When the exemption is in place, people sleeping in their vehicles must not park their vehicles on any street for the purposes of sleeping before 7pm and must not remain parked on any street for the purposes of sleeping after 7am.
Here’s the question we have, though. If, for 12 hours a day, vehicles are essentially considered residences in Victoria, what does this mean for someone who has had a few drinks before sleeping off the booze in their car?
If the City of Victoria is all of a sudden going to allow people to overnight it in their cars, then it’s implied people sleeping in vehicles may not have any intention of going anywhere. They’re simply sleeping. In their homes. At a place they’re invited to sleep at by a lawful authority.
We believe this potential change to the bylaw is concerning. It directly conflicts what people should be allowed to do in their homes with what officers are asked to enforce in the name of safety. What’s even more troubling is that even though the laws will be in conflict, those given an IRP for sleeping in vehicles likely will not be able to use the bylaw change as a defence.
If you have been given an Immediate Roadside Prohibition for sleeping in a vehicle after a few drinks, give us a call. 604-685-8889. We’ll be glad to look at your case.