You Don’t Have To Be Sober If You Are Sitting In The Passenger Seat

September 9, 2021

You Don’t Have To Be Sober If You Are Sitting In The Passenger Seat

Many people find it hard to let their teenage children with a driver’s permit drive if they are intoxicated. However, if you are under the influence of alcohol and don’t want to be charged with a DUI, this might be your best chance.

There is no legal authority to issue a driving prohibition to a passenger in a vehicle who has not been driving. According to regulation 30.071 of the Motor Vehicle Act Regulation, Class 7L drivers are not permitted to drive without a qualified supervisor in the passenger seat.

However, the law does not say anything about the passenger being sober. It only requires that the supervisor be at least 25 years of age or a licensed driving instructor. The supervisor must also hold a valid license and sit in the front passenger seat, next to the driver.

The Motor Vehicle Act

In the Motor Vehicle Act, there is no mention that the supervisor must be sober, or even awake. Legally it is enough to have a licensed adult in the passenger seat. Hence, if you are sitting in the passenger seat with a Class-L driver and you are under the influence, neither you nor the driver can receive a ticket. The only prohibited act is “operating” a motor vehicle without a supervisor.

However, the supervisor is supposed to care for and control the motor vehicle in case of an accident. A person with a blood alcohol concentration (BAC) greater than 100 mg% will find it hard to do so. Hence, if you are driving with a Class-L driver, it is advised that you don’t do so if you are highly intoxicated.

Does The Presence Of An Intoxicated Person Create A Risk?

In the motor vehicle act, the care and control are defined as an intentional course of conduct associated with a motor vehicle, in circumstances that create a ‘realistic’ risk that the vehicle may be set in motion.

Hence, the question that arises here is if you are intoxicated and you reach over to reach the steering wheel to guide the driver, are you creating a risk? This situation is not unheard of and in many cases, supervisors who were intoxicated helped Class-L drivers come out of threatening situations. However, does the presence of an intoxicated passenger create an inherent risk according to the law?

Considering the outcome of previous cases, the Supreme Court of Canada does recognize that an intoxicated person in a vehicle always poses a risk of driving. However, if the risk is not ‘realistic’ the police officer cannot take action or issue a ticket.

The ‘realistic’ nature of the risk can be rebutted by adducing or pointing to evidence to show the risk is mitigated. In most cases, just proving that an intoxicated person arranged a sober driver is enough to drop the charges.

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