The Short Version:
a. You can be charged with a DUI even if you were not actually driving.
b. Whether or not you were in care and control depends on the specific facts of your case.
The Long Version:
Although most people think of a “DUI” or a “DWI” as relating to actual driving, in Canada, there is a related charge of being “in care and control” of a motor vehicle. If you are found to be “in care and control” of the motor vehicle, then it does not matter if you were not actually driving. There are a couple of things to keep in mind about “care and control” charges:
a. If you are found in the driver’s seat of the motor vehicle, then section 258(1)(a) of the Criminal Code creates a presumption that you are in care and control.
For example, if the police find you eating a hamburger in a parking lot while sitting in the driver’s seat, then you could be found to be in care and control of the motor vehicle.
b. It is possible to rebut the presumption under section 258(1)(a). If you lead evidence that you were not sitting in the driver’s seat for the purpose of putting the car in motion, and if the trial judge accepts this, then the crown will not be able to rely on the presumption.
c. However, even if the crown does not get the benefit of the presumption under section 258(1)(a), they may still be able to prove that you had care and control of the vehicle on the facts of the case. If this occurs, you would still be found to be in care and control of the motor vehicle.
The test for care and control is whether or not the accused did some act or series of acts involving the use of the motor vehicle, it’s fitting, or equipment whereby the vehicle may unintentionally be set in motion. For example, if you are found sleeping in the driver’s seat, you may be able to rebut the presumption (because you did not intend to drive) but could still be found in care and control (meaning you would be convicted). Of course, this doesn’t mean that you would automatically be convicted. Depending on the facts, the trial judge might well decide that you were not in care and control.