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(Based on a scene from TV show - 'The Rookie') A woman who is clearly drunk is walking across the road towards her car. One officer sees and says "DUI" and the other correctly points out "not yet". They wait a little longer and swoop in once she unlocks the car and pulls the door open. My question is, from opening the door, to getting in, to starting the engine, to putting it in gear, where does the DUI occur? As it relates to the scene I'm referencing, I feel like that wouldn't have been a DUI yet, she could have simply been trying to get something out of the car.

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    I added a "California" tag because the referenced television show is set in Los Angeles, California.
    – ohwilleke
    Nov 17, 2023 at 0:20
  • I've also added the UK tag as that is where I'm from and so I would be interested in an answer based on my native jurisdiction.
    – Ethan
    Nov 17, 2023 at 0:26
  • The position you take to get stuff out of a car is very different than one you take to start the car. I would just lean in and grab it instead of sitting down.
    – Nelson
    Nov 17, 2023 at 0:36
  • @Nelson - yes, and in the scene I'm referring to, that is all that had happened. The woman had unlocked the car and only just opened the door when the cops pulled her aside.
    – Ethan
    Nov 17, 2023 at 11:21

2 Answers 2

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Assuming impairment or a blood-alcohol level above the prohibited amount can be proved, the complete offence is made out at least as soon as the accused occupies the driver's seat.

This is because prosecution of the offence of operating a conveyance while impaired (s. 320.14) is assisted by a presumption (s. 320.35):

if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

This particular wording has been in place since 2021, but it is just a rephrasing of the former presumption that had been around for decades.

Courts have interpreted this presumption to be triggered as soon the driver's seat is first occupied, not simply upon observation of the accused, nor by the presence of the accused in another location in the vehicle (R. v. Hatfield (1997), 33 O.R. (3d) 350 (Ont. C.A.)).

This presumption is an example of a true reverse onus that places a burden on the accused to establish on a balance of probabilities that they were in the driver's seat for some other purpose. The Supreme Court of Canada has recognized that this is an infringement of the presumption of innocence protected by s. 11(d) of the Canadian Charter of Rights and Freedoms, but has found it to be a justifiable infringement. See R. v. Whyte, [1988] 2 S.C.R. 3.

The offence may even be made out earlier, but if the Crown proceeded that way, they would not be relying on the above presumption and would have to prove "operation" — meaning "care or control" — in some other fashion. An accused has been found to be in care or control of a vehicle even when outside of the vehicle: R v. Rupolo (1970) [1971] 1 O.R. 632 (Ont. Sup. Ct.) (it seems the defence failed to put mens rea in issue, even though this is something the Crown normally needs to prove, so I am doubtful about the value of this example, but it does show that it is possible for the Crown to prove care and control even when the accused is not in the driver's seat).

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The relevant offences are under sections 4 and 5 of the Road Traffic Act 1988 in Great Britain. In Northern Ireland, sections 15 and 16 of the Road Traffic (Northern Ireland) Order 1995 are essentially the same as these.

For these offences, the question here hinges on whether the conduct described amounts to "driving", "attempting to drive", or being "in charge of" the vehicle, while it is on a road or other public place, and the person is unfit because of drink. If someone has just opened the car door but done nothing else then they are surely not driving, but we have the other conditions to consider as well.

An "attempt" to drive doesn't only cover somebody who is so incompetent that they aren't managing to drive in any real sense, but also "acts that are more than merely preparatory" to the offence. The assessment depends on the facts, but opening the car door is likely not enough to show an attempt to drive. However, being "in charge" is broader, and can cover circumstances like sitting in the driver's seat with the keys, even if they haven't yet been put in the ignition. As explained below, in the situation in the question, the woman is likely to be found "in charge" after opening the door, but she is likely not yet "attempting to drive" at that point.

"Driving"

We need to understand what "driving" is to know whether someone is attempting to do it. In Scotland, the test is whether a person is "in a substantial sense controlling the movement and direction of the car" (Ames v McLeod 1969 JC 1, at 3), whereas in England they must be "using the driver's controls for the purpose of directing the movement of the vehicle" (R v MacDonagh [1974] 2 All ER 257). Both cited cases involved somebody pushing a car on foot, while reaching through the window to move the steering wheel: the one in Scotland was convicted and the one in England acquitted. So the definition is somewhat broader in Scotland, covering a wider variety of ways that a drunk person might move a vehicle.

The idea of controlling or directing the movement of the car does not mean that it is actually moving. Someone who is sitting in the vehicle with the engine running can still be driving it, if they are exercising control to stop it from moving. This time, we have authority from both jurisdictions (Hoy v McFadyen 2000 SCCR 873 and DPP v Alderton [2003] EWHC 2917 (Admin)) where the facts on the ground were very similar - in Hoy the gear was not engaged and in Alderton the handbrake was on - and the conclusion in law was the same. The court in the latter case also said it did not matter if the handbrake had been put on, or was already on, as there would still be an intention to prevent movement.

Attempts and preparations

Opening the car door has been held to not necessarily be preparing to drive, in Mason v DPP [2009] EWHC 2198 (Admin), although the facts of that case are unusual. Mr Mason was (by his own account) about to drive his car while drunk, when he was robbed just after opening its door. The thief escaped with the car, and when Mason went to the police, he was arrested for attempting to drive while drunk. The High Court said that although Mason had intended to commit the offence, his actual acts were not enough to justify a conviction. Opening the door was not "part of the actual process of putting the car in motion", but turning on the engine would have been such an act. (For procedural reasons, he was not able to be convicted in the alternative of being "in charge" of the vehicle - somebody else in similar circumstances probably would have been.)

The nature of "attempt" is also illustrated by DPP v Moore [2010] EWHC 1822 (Admin), where Mr Moore's conviction was upheld. He was driving while drunk on a private road - in fact, part of the Atomic Weapons Establishment site at Aldermaston, which raises several eyebrows - and was about to go onto a public road when stopped by an MoD police officer. His actions were an attempt to drive on a public road while drunk, since he would have reached it had the officer not intervened.

"In charge"

In many situations, someone can be drunk and "in charge" of a stationary car. In DPP v Watkins [1989] 1 All ER 1126 it was said that "the circumstances to be taken into account will vary infinitely", but include:

  1. whether and where he is in the vehicle, or how far he is from it;
  2. what he is doing at the relevant time;
  3. whether he is in possession of a key that fits the ignition;
  4. whether there is evidence of an intention to take and assert control of the car by driving or otherwise;
  5. whether any other person is in, at or near the vehicle and, if so, the like particulars in respect of that person.

But in Scotland, the test is whether the person is "responsible for the control or driving of the car" (Crichton v Burrell 1951 JC 107), which is a little stricter. In that case, someone who was standing next to his car, with the key, was deemed to have not been in charge, because he was waiting for a friend to come and drive instead. In England, he would likely have been considered still in charge because the friend had not yet arrived to take control. So while the woman in the question (if in England) would have been already in charge of the car when she was confidently drunkenly staggering towards it with the key in her hand, the opening of the driver's door might make a difference in Scotland because it is a more definite step towards assuming actual control of the vehicle.

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  • What if someone was intending to pick up his/her jacket left on the front seat? It is cold and the person plans to walk home instead of driving. Nov 18, 2023 at 12:52

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