DUI & Control of the Vehicle

I found the following posting below about a DUI conviction in Canada
citing "Control of the Vehicle".  I would like to know have there been
any states to repeal this "Control of the Vehicle" clause in the DUI
laws.  I am personally involved in a case in the state of Nebraska
where the constitutionality of this clause may be challenged.

Without giving the specifics of the case, the question is if the
clause is a preventive measure to stop potential DUI offenders vs.
drivers who have driven their vehicles while intooxicated and then
pulled over and fell asleep, the clause might be unconstitutional
since prosecution cannot be carried forward if the crime has not been
comitted.  Even if the defendent proclaimed his/her intent to drive,
which is not the case here, prosecution beyond a resonable doubt
cannot possibly stand if the crime was never comitted.

Has there been any challenges to this clause anywhere, and what were
the results?  Please cite any news releases or articles or incidents
that I may research.

eager 4 a reply



In article <[EMAIL PROTECTED]>, Larry Kolodney <[EMAIL PROTECTED]>
wrote:

>To convict you for DWI, the state must prove beyond a reasonable
doubt
>that you were actually driving while intoxicated.  There is no law
>that I'm aware of against being drunk in a car. 

In Canada it is a crime to be in "care and control" of a motor vehicle
with a blood-alcohol level of over .08. There is also a somewhat
complex
reverse onus provision that says once the prosecution proves beyond a
reasonable doubt that the accused was in the driver's seat, the
accused is
presumed to have been in "care and control" of the vehicle unless s/he
proves (on a balance of probabilities) that s/he did not enter the
vehicle
for the purpose of setting it in motion. The constitutionality of this
provision has been upheld by the Supreme Court of Canada (in R. v.
Whyte,
I believe).