Northern Ont. woman argues she didn’t start drinking until her vehicle got stuck

Ontario Provincial Police display a failed breathalyzer test in the file photo. (Source: OPP)

A woman from Thunder Bay, Ont., fought impaired driving charges by arguing that she didn’t start drinking until her vehicle was damaged and stuck in a roadway.

While she was in the driver’s seat, the woman insisted that she couldn’t drive it because the vehicle was stuck and too damaged to move. She did admit she put it in drive and reverse in an attempt to move it onto the roadway.

The incident took place on a warm day on Aug. 6, 2022, in the Township of O’Connor in the District of Thunder Bay.

The driver testified that on that day, she was having a major mental health crisis and left her Thunder Bay home “in brain fog, accompanied by irrational thoughts and a racing heart.”

She ended up on a country road where she stopped and fell asleep for a few hours.

“When she woke up, it was getting dark,” said the Ontario Court of Justice decision.

“That is when she ended up driving into the area where she got stuck. She testified that it looked like a secluded spot. She was not sure on what she got hung up. It was her evidence that her car ‘bottomed out’ in the middle of the road.”

She put her car in reverse and drive, but her tires would only spin around. It was getting dark by this time and she had no cellphone service and she said panic began to set in.

Beer in the backseat

At that point – around 9:30 p.m. -- she noticed her brother had left some beer in the backseat of the vehicle.

“In her distress, she drank four cans of beer in about 15-20 minutes to calm down,” the court decision said.

Not long afterward, she realized she could make a 911 call using her cellphone even without cell service. So she called 911 around 10 p.m.

When police arrived, the woman said she was crying. The officer asked her to put the vehicle in reverse, but the tires only spun around.

In his testimony, an Ontario Provincial Police officer said he arrived around 10:19 p.m. and found the woman on an old side road overgrown by grass in some areas.

There was a hump in the middle of one section and ruts on either side where the woman’s vehicle had gotten hung up.

“He observed that the accused was upset; she was crying, and she had dry lips, bloodshot and watery eyes,” the decision said.

“There was a smell of alcohol coming from her breath. She seemed confused and did not know where she was.”

He noticed the empty beer cans on the floor of the car and five empty cans in a plastic bag. The woman had trouble walking when she got out of the vehicle.

Registered a fail

When she provided a breath sample, the device registered a fail. She was taken to police headquarters where one test showed she had a reading of 148 mg of alcohol in 100 ml of blood.

She was charged with one count of impaired driving and one count of having a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood within two hours of ceasing to operate a conveyance.

The defence argued that the woman stopped driving the vehicle as soon as it became stuck – so she only began drinking after she stopped driving.

“It is further advanced that having consumed alcohol after ceasing to operate the motor vehicle, the accused could not have been impaired at the time of operating the motor vehicle,” the court decision said.

The defence also argued that the vehicle was “immovable and/or inoperable, eliminating any risk of it being put in motion.”

The judge in the case noted that the woman remained in the driver’s seat, including when she drank the beers.

And she admitted that she tried to get the vehicle unstuck even after consuming the beer and calling 911.

No plans to drive

The defence argued that she didn’t intend to drive anywhere, however.

“Her plan was to get the vehicle unstuck, get a tow truck and call her mother or someone else if her mother was not available to come and get her,” the decision said.

But the judge ruled that trying to move the vehicle was sufficient evidence that she was trying to operate it.

“Even if it was only to get it towed, it remains operating a motor vehicle,” the judge wrote.

“In order to rebut the presumption, the accused needs to satisfy this court that she did not occupy the driver’s seat for the purpose of putting it in motion.”

While finding her guilty of driving with more than 80 mg of alcohol in her bloodstream, however, the judge found her not guilty of impaired driving.

That’s because the signs of impairment police relied on – bloodshot and watery eyes and unsteady walking, for example – could have been “related to the state of panic that the accused found herself in.”

“It was clear from the evidence that the accused was upset and crying. Her watery and bloodshot eyes could be a result of her crying.”

And the “rough and uneven terrain,” could explain her unsteady gait.

“Any difficulty in walking could be the product of those conditions,” the judge wrote.

“I am not sure that the indicia observed as being signs of impairment were a result of alcohol impairing the accused’s ability to operate a conveyance. They could very well have been caused by the mental state she found herself in.”

So she was found not guilty of impaired driving, but guilty of driving with more than 80 mg of alcohol in her bloodstream.