Since key was in ignition and engine running there was realistic risk of danger

GROUNDS

Since key was in ignition and engine running there was realistic risk of danger

Appeal by accused from his conviction for having care and control of motor vehicle when his blood alcohol level was above legal limit. Accused claimed that there was miscarriage of justice. Police investigated noise complaint at house party. Accused, who was 18, sat in driver’s seat of his car, which was properly parked on road. Girl, who was 15 and who was drunk on vodka, sat in front passenger seat. Two males sat in backseat and one of them was drunk and other was sober. They were sitting in car to avoid altercation. Accused testified that his engine was not running and he waited for police to arrive. He had key turned to accessory to listen to radio. Police officer saw that accused had red, glazed eyes and she detected alcohol on his breath. Accused was slow to respond to questions and it took him some time to find his documents. Officer testified that engine was running. Trial judge did not accept testimony of accused’s friends as being credible since most of them were intoxicated. She did, however, accept officer’s testimony. Appeal dismissed. Since key was in ignition and engine was running there was realistic risk of danger. There was no miscarriage of justice for there was evidentiary basis on which judge could make findings that she did. She detailed her reasons for not accepting defence witnesses as being credible or reliable.

R. v. Summers (Oct. 2, 2013, Ont. S.C.J., M.J. Donohue J., File No. CR12-341-0000AP) 109 W.C.B. (2d) 344.