Open Alcohol - In The Trunk, out of reach

So as I start, first I'd like to say that I paid the ticket, just wanted your opinion on the matter.

So labour day weekend, I went clubbing with my girlfriend. I had A LOT to drink, she had nothing (designated driver/responsible one out of the two of us). Anyways, I was drinking in the parking lot, and had half a bottle of vodka left over, so put it in the trunk, under the fake floor beside the spare tire.

Driving home we went through a ride checkpoint where my girlfriend was approached by two Toronto police officers. They asked her if she had anything to drink, which she responded no. They asked why it smelled of alcohol in the vehicle, which I replied to "I had fun tonight". So they told us to pull aside and asked her to search the vehicle. I told her to let them, itll be easier for both of us and we could get home faster. I forgot about the bottle in the trunk and they found it. They asked the two of us who's it was, and I replied mine. They confiscated it and told us to sit in the car. One of the officers came to the car and said that they could bring the breathalyzer to the car and check both of us, but he wasn't going to and just issued a ticket for "Care and control of a mother vehicle - alcohol readily available" under LLA.

Now the vehicle is registered in MY name and I CLAIMED the bottle as mine. However, the ticket was issued in her name. Just curious on why that was. Also I thought it had to be readily available, that was a mission to get to.

Just looking for opinions here!

Here is the law on the matter:

http://www.ontario.ca/laws/statute/90l19

Conveying liquor in vehicle, boat

32. (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. R.S.O. 1990, c. L.19, s. 32 (1).

Exception

(2) Subsection (1) does not apply if the liquor in the vehicle,

(a) is in a container that is unopened and the seal unbroken; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. R.S.O. 1990, c. L.19, s. 32 (2).

The ticket was issued to your girlfriend because as the driver she was the person who had care and control of the vehicle, doesn't matter if the liquor wasn't hers. That having been said, I think you could have probably beaten that ticket in court. The law says that you can transport open liquor as long as it is not readily available to any person in the vehicle, I think you could argue that under the floor in the trunk is not readily available. Also I'm not sure why the officer was talking about getting you to take a breath test, as far as I know the passenger in a vehicle is under no obligation to give a breath sample.

I agree with Daggx. I would certainly argue in Court that it's lawful to have open alcohol in the trunk as it's in no way readily accessible to the driver. Too bad you didn't take it to Court, I imagine the Crown would have simply withdrawn the charge.

In future, I would also suggest you don't consent to a search in those circumstances. Police already have a legal authority to search your vehicle under the Liquor Licence Act, so if they actually thought you were doing something wrong no permission is needed.

As for providing a breath sample, asking the driver to provide one in your scenario would most likely be lawful (only a reasonable suspicion is required). You, as a passenger, are certainly NOT required to provide one nor do I see any reason why they would even want you to. I might provide one simply to see how high I can blow (jk).

So first of all you should have said NO to the search. I don't understand why people give up their rights so easy.

Second, you paid the ticket already which means she already plead guilty to it, so it is now on her driving record and may affect her insurance for the next bunch of years, and there is nothing you can do about it. She got the ticket because she was driving.

With that said, for future reference, was it section 32(1) that she was charged under? If so 32(2)b says there is exception if it "is not otherwise readily available to any person in the vehicle". Clearly if it was in with the spare tire and locked in the trunk it was not readily available to her or anybody else in the vehicle and given there were two of you that could both testify to that, you could have easily gotten the charge dropped.

Thanks for all the input. I knew that we could have properly gotten it dropped, but she was paranoid and paid it off the next day.

Also, jsherk, I thought because it was an LLA offense, it wouldn't show up on her drivers abstract (32(1)). At least that's what her co-worker told her (She works as a Lawyers assistant at a Law Firm handling Insurance Fraud Cases).

Anyways, we both are on the same policy (Policy in her name, same address on both licenses). So either way, if her or I got the ticket, our insurance "might" go up?

I can't edit my previous post. But for clarification, she paid it, then took the money from me if people are wondering.