COURT OF APPEAL FOR ONTARIO
Rouleau, Wilson and Madsen JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Gerassimos Maniatis
Appellant
Adam Little and Brandon Chung, for the appellant
Patrick Quilty, for the respondent
Heard: April 27, 2026
On appeal from the decision of Regional Senior Justice Mark L. Edwards of the Superior Court of Justice, dated March 21, 2024, with reasons reported at 2023 ONSC 1682, allowing an appeal from the acquittal entered on August 18, 2022, by Justice David M. Gibson of the Ontario Court of Justice.
A. Overview
1In the early morning hours of December 15, 2019, the appellant was found in the driver’s seat of a vehicle that had struck a streetlight. His blood-alcohol concentration was in excess of the legal limit. He was charged with impaired operation under s. 320.14 of the Criminal Code, R.S.C. 1985, c. C-46.
2The trial judge found that, at the time the appellant was observed in the driver’s seat, his vehicle was inoperable and no longer presented any realistic risk of danger. He held that this rebutted the presumption of operation under s. 320.35. As the Crown could not make out its case without the benefit of the presumption, the appellant was acquitted.
3The Crown successfully appealed. The summary conviction appeal judge held that the fact that the vehicle was inoperable and no longer posed a realistic risk of danger could not rebut the presumption under s. 320.35 and ordered a new trial. The appellant appeals the decision allowing the appeal of his acquittal.
4This appeal involves the interpretation of s. 320.35, which provides that if an accused is in the driver’s seat of a motor vehicle, they are presumed to have been operating the vehicle unless they establish that they did not occupy the driver’s seat for the purpose of setting the vehicle in motion. The interpretive question is: can the court presume that an accused was operating a vehicle if that vehicle is in fact inoperable and presents no realistic risk of danger?
5I would answer this question in the affirmative and dismiss the appeal. The appellant was found in the driver’s seat of a motor vehicle, and absent proof that he did not occupy that seat for the purpose of setting the vehicle in motion, the presumption applied, regardless of whether the vehicle was inoperable or posed no realistic risk of danger.
B. Background
6On December 15, 2019, at approximately 4 a.m., at the intersection of Wellesley and Sherbourne Street in Toronto, the vehicle owned by the appellant struck a streetlight and came to rest. There were no witnesses to the accident, but passersby approached the vehicle after the impact; it was not running, the four-way flashing lights were engaged, and the airbags had deployed. The appellant was in the driver’s seat.
7The police were summoned and arrived at the scene. The investigating officer noted an odor of alcohol on the appellant, who also had a flushed face and red eyes. The appellant admitted that he had been drinking earlier that night, but told the officer that someone else had been driving the vehicle at the time of the accident. He said that this individual, whom he had met at a bar earlier that night, had fled after the accident, and that he had only entered the driver’s seat after it had struck the streetlight. The officer did not believe this story and, after collecting breath samples which demonstrated that his blood-alcohol concentration exceeded the legal limit, charged the appellant with impaired operation.
C. The Decisions Below
8It was an agreed fact at trial that the vehicle was inoperable at the time the appellant was found in the driver’s seat. The trial judge also found that, as the vehicle was largely off the traveled portion of the road, it presented no real hazard to drivers or pedestrians. The trial judge held that these facts served to rebut the presumption of operation under s. 320.35. In the absence of the presumption, the trial judge was left with a reasonable doubt as to whether the appellant had been operating the vehicle and acquitted him.
9The summary conviction appeal judge held that s. 320.35 cannot be rebutted by evidence that the vehicle is inoperable and poses no realistic risk of danger. He concluded that the appellant could only rebut the presumption by demonstrating that he was not in the driver’s seat for the purpose of setting the vehicle in motion. He granted the Crown appeal and remitted the matter to the Ontario Court of Justice for a new trial.
D. Legislative scheme
1. Impaired operation
10The appellant was charged with two counts of impaired operation under ss. 320.14(1)(a) and (b) of the Criminal Code. Section 320.14(1)(a) makes it an offence to operate a conveyance while impaired. Section 320.14(1)(b) makes it an offence to have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol per 100 ml of blood, within two hours after ceasing to operate a conveyance.
11“Conveyance” is defined in s. 320.11 as including a “motor vehicle”. “Operate” is also defined in s. 320.11 as meaning, “in respect of a motor vehicle, to drive it or to have care or control of it”.
12Here, given that the trial judge had a reasonable doubt about whether the appellant was driving the motor vehicle prior to the accident, we are concerned solely with the “care or control” aspect of operation.
13It is not immediately obvious what it means to have “care or control” of a motor vehicle, other than it must mean something other than driving. Parliament first created the offence of having care or control of a motor vehicle while intoxicated in 1925: An Act to amend the Criminal Code, S.C. 1925, c. 38, s. 5. Parliament’s objective in creating this offence was to prevent a risk of danger to public safety that inherently arises from the “mere ‘combination of alcohol and automobile’”: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, at para. 40, quoting Saunders. v. The Queen, 1967 CanLII 56 (SCC), [1967] S.C.R. 284, at p. 290.1
14For this reason, the Supreme Court has held that a “realistic risk of danger” is an essential element of care or control: Boudreault, at para. 33. Parliament only intended to criminalize conduct that creates a “realistic risk of danger”, and conduct that presents no such risk accordingly falls outside the ambit of the offence: Boudreault, at paras. 32, 40; see also The Queen v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, at p. 126; R. v. Penno, 1990 CanLII 88 (SCC), [1990] 2 S.C.R. 865, at p. 877.
15By contrast, an intention to set the vehicle in motion is not an essential element of the offence: Boudreault, at para. 36; Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231, at pp. 248-249. An impaired individual who does not have an intention to set the vehicle in motion will not necessarily escape conviction. This is because such an individual may nevertheless present a realistic risk of danger in at least three ways. First, an impaired individual who does not initially intend to drive may change their mind. Second, an impaired individual may set the vehicle in motion by accident. Third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property: Boudreault, at paras. 41-42.
16An example of this third scenario can be found in R. v. Vansickle, [1988] O.J. No. 2935 (Dist. Ct.), aff’d [1990] O.J. No. 3235 (C.A.). In that case, the accused was found impaired while in the driver’s seat of a stationary vehicle. The vehicle was straddling the centre lane of a highway during a snowstorm while it was dark out. The vehicle was damaged and immobile under its own power, and so the accused and his companion decided to wait out the storm inside the car by listening to music and drinking beer. The court concluded that this scenario created a situation of danger, even though the vehicle was immobile. For example, the accused could accidentally turn off the headlights, leaving the car completely unobservable to other drivers while in the middle of a highway during a snowstorm.
17To summarize, having care or control of a vehicle requires a realistic risk of danger, but a realistic risk of danger can arise even where a vehicle is “stationary or inoperable” and the accused has no intention of putting it in motion: Boudreault, at paras. 33, 41-42.
2. The presumption of operation set out in s. 320.35
18This appeal is about the interpretation of the presumption of operation found in s. 320.35. To assist in this interpretation, I (a) set out the legislative history and purpose of the presumption; (b) summarize the basis on which the presumption has been upheld as constitutional; and (c) discuss how it has been interpreted by this court and lower courts.
a. Legislative history and purpose
19The creation of the care or control offence in 1925 caused some problems. In particular, the fact that the accused was often highly intoxicated led some judges to enter acquittals on the basis that the accused was incapable of exercising care or control: see R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3,at pp. 23-24, referring to Rex v. Butler, 1939 CanLII 214 (AB SCAD), [1939] 4 D.L.R. 592 (Alta. C.A); Forbes v. The King, 1943 CanLII 292 (ON HCJ), [1943] 1 D.L.R. 683 (Ont. Co. Ct.); Rex v. Armstrong, 1943 CanLII 302 (ON HCJ), [1944] 1 D.L.R. 233 (Ont. Co. Ct.).
20In response to this problem, in 1947, Parliament enacted the first version of the presumption now found in s. 320.35 of the Criminal Code: An Act to amend the Criminal Code S.C. 1947, c. 55, s. 10; R. v. Whyte, at pp. 24-25. Today, s. 320.35 reads as follows:
In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.
21Put simply, where an accused is found to be in the driver’s seat, they are presumed to have been operating the motor vehicle unless they can establish that they were in the driver’s seat for some other purpose, for example to keep warm, wait out the storm, or “sleep it off”.
22The presumption is one way the Crown can prove that the accused was operating a motor vehicle, but it is not the only way. Where the presumption is rebutted or not available on the evidence, the Crown can rely on actual or de facto care or control and prove the elements of the offence in the ordinary way: R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355, at paras. 47-49.
23The purpose of the presumption when it was first introduced was said to be to “clarify the content of the offence and make it difficult for an accused to avoid conviction for the care or control offence on the ground that he or she was too impaired to assume control of the vehicle.”: Whyte, at pp. 24-25.
24During the debates in the House of Commons, then Minister of Justice James Lorimer Ilsley made the following statements about the purpose of the presumption:
Before this amendment, if [an accused’s] state of intoxication were sufficiently advanced the courts in many of the provinces held that he did not have control of the motor vehicle. It is no longer open to an accused person to defend himself on those grounds. The early words in this proviso take that defence away from him. But they leave a defence to a person who, having got into the car for the purpose of setting it in motion, goes to sleep.
If persons accused of driving a car while intoxicated can go into a court and say, “I was too drunk to be guilty,” it shocks the public; indeed it shocks us all, I believe.
It should not be open to him to say “I was too drunk to be said to have the car under my control even though I was sitting behind the wheel.” It should not be open to him to be able to say that.
(Debates of the House of Commons, 3rd Sess., 20th Parl., Vol. VI, July 3, 1947, at pp. 5048-49)
25The presumption was enacted in response to this problem with proving the mental element of the offence. As the Supreme Court put it in Whyte, at p. 26:
On the one hand, it was repugnant to theories of criminal liability that a person could be convicted of an absolute liability crime, with no possibility of a defence based on the mental state of the accused. On the other hand, as the Minister of Justice commented, it is shocking to hear that an accused could be acquitted of an offence for which consumption of alcohol is a required element, because he was too intoxicated to be guilty. The presumption was added to resolve the problems caused by both of these alternatives. Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion. [Emphasis added.]
26Though the wording of the presumption has changed somewhat over the years, the presumption in s. 320.35 is substantively the same as the original such that these statements of purpose apply equally to the current version.
b. Constitutionality
27In Whyte, the Supreme Court held that the presumption (then set out in s. 237(1)(a)) infringed s. 11(d) of the Charter, but was justified under s. 1.2
28Section 11(d) of the Charter guarantees the right to be presumed innocent until proven guilty. The presumption of innocence requires the trier of fact to be convinced beyond a reasonable doubt of each essential element of an offence before convicting. Accordingly, a provision that permits conviction in spite of a reasonable doubt about an essential element of an offence violates the presumption of innocence: Whyte, at p. 16, referring to R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 656.
29The presumption under s. 320.35 requires the trier of fact to presume an essential element of the offence notwithstanding a reasonable doubt. A person can be in the driver’s seat without an intention to assume care or control – for example, to take shelter from poor weather, or to sleep. Therefore, the Supreme Court held that it infringed s. 11(d) of the Charter.
30However, the Supreme Court determined that the presumption was justified under s. 1. The presumption, along with related sections, is aimed at addressing the pressing social problem of impaired operation: Whyte, at pp. 20-21. There is “plainly” a rational connection between the proved fact (occupation of the driver’ seat) and the fact to be presumed (care or control) given that “[t]he driver’s seat is designed to give the occupant access to all the controls of the car, to be able to operate it.”: pp. 21-22. The presumption also impairs the right as little as possible, because, viewed in the context of the legislative history discussed above, the presumption “represents a restrained parliamentary response to a pressing social problem.”: at p. 26-27. Finally, the court held that the presumption strikes a proportionate balance. Although the presumption infringes s. 11(d), it also “in effect, affords a defence to an accused which could not otherwise be made available”, because intention is not a required element of the offence: at p. 27.
c. Interpretation in previous cases
31This court interpreted the presumption that is now found in s. 320.35 in R. v. Hatfield (1997), 1997 CanLII 2938 (ON CA), 33 O.R. (3d) 350 (C.A.).3 In Hatfield, the accused was found sitting in the fully-reclined driver’s seat of a parked car. He said he had been drinking at a restaurant and, after driving for a short distance, decided he was not fit to drive and pulled into a parking lot to sleep it off. He argued that the presumption was rebutted because at the time the police officers found him in his car, he no longer intended to put the vehicle in motion. This court disagreed and held that “where an intoxicated person is discovered occupying the driver’s seat of a vehicle, the presumption will apply unless the person can demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion.”: at p. 354.
32Hatfield did not decide the interpretive issue in this appeal; that is, whether evidence that a vehicle is inoperable and no longer poses a realistic risk of danger can rebut the presumption in s. 320.35. Many lower courts have considered the issue and have come to differing conclusions.
33A number of cases have held that inoperability and/or the absence of a realistic risk of danger can rebut the presumption: see e.g., R. v. Brienza, 2019 ONSC 5402, 381 C.C.C. (3d) 414, at para. 28; R. v. Coomansingh, 2014 ONCJ 560, at para. 35; R. v. Lanno, 2014 ONCJ 655, at paras. 28; R. v. Lu, 2013 ONCJ 73, at paras. 30-31; R. v. Rule, 2015 ONCJ 253, at paras. 54-56. There is also a line of cases reaching the opposite conclusion: see e.g., R. v. Smith, 2004 CanLII 34316 (ON SC), [2004] O.T.C. 26 (S.C.), at para. 25; R. v. Maslek, 2004 CanLII 6228 (ON SC), [2004] O.T.C. 710 (S.C.), at paras. 9-10; R. v. Ferguson (2005), 2005 CanLII 1060 (ON SC), 15 M.V.R. (5th) 74 (Ont. S.C.) at paras. 12-13; R. v. Danji, 2005 ONCJ 70, 16 M.V.R. (5th) 1, at para. 36.
34Other provincial appellate court decisions support this second line of authority. In R. v. Burbella, 2002 MBCA 106, 166 Man. R. (2d) 198, the Court of Appeal of Manitoba held that “[t]he presence or absence of danger will have no effect when the statutory presumption applies and is not rebutted.”: at para. 16. And, in R. v. MacAulay, 2002 PESCAD 24, 218 Nfld. & P.E.I.R. 312, the Appeal Division of the Prince Edward Island Supreme Court held that the fact that the accused did not have keys or any means of actually starting his car did not rebut the presumption because “[i]t is the purpose of the occupant, not his or her means or ability, that Parliament chose to address in [the presumption].”: at para. 22.
E. Positions of the Parties
35The appellant favours the first line of authority and argues that the presumption in s. 320.35 is rebutted here because of the trial judge’s finding that the vehicle was inoperable and posed no realistic risk of danger to the public. He makes three main arguments. First, he says that Parliament’s goal in creating the offence of impaired operation was to criminalize conduct that creates a “realistic risk of danger”: Boudreault, at para. 40. The purpose of the presumption is to facilitate proof of impaired operation, not to expand its scope. As a result, the presumption should not apply where there is no realistic risk of danger. Second, the appellant argues that the summary conviction appeal judge’s interpretation results in absurd consequences. For example, it would be absurd to convict an individual for drinking in the driver’s seat of a derelict and rusted-out abandoned tractor in a field. Third, the appellant argues that the summary conviction appeal judge’s interpretation risks unconstitutional results because if the presumption captures situations where the vehicle is inoperable and poses no realistic risk of danger, the s.1 analysis in Whytecollapses. The appellant also argues that this interpretation would likely run afoul of s. 7 of the Charter by capturing offenders in its scope who pose no realistic risk of danger.
36The Crown emphasizes the text of s. 320.35. Section 320.35, on its face, provides only one way the accused can rebut the presumption: by establishing that they did not occupy the driver’s seat for the purpose of setting the conveyance in motion. Further, the Crown says that its interpretation does not lead to absurdities. A person drinking in the driver’s seat of a derelict tractor should be able to easily rebut the presumption by showing that they did not intend to set the tractor in motion. If the accused is unable to rebut the presumption, there is no absurdity in convicting them. A person who intends to set an inoperable vehicle in motion, not knowing that it is inoperable, is just as morally culpable as someone who intends to drive and is capable of actually doing so. Finally, the Crown argues the Charter cannot be used to interpret legislation unless it is ambiguous, and there is no ambiguity here.
F. Analysis
37The modern approach to statutory interpretation considers the text, context and purpose: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. Although all three must be considered, the text remains the anchor of this exercise: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, 498 D.L.R. (4th) 316, at para. 24
38In this case, the text strongly favours the Crown’s interpretation. For ease of reference, I reproduce s. 320.35:
In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.
39The presumption is of the form “If A, then B, unless C”. If it can be proved that the accused was in the driver’s seat, then the accused is presumed to have been operating the vehicle, unless they establish that they did not occupy the driver’s seat for the purpose of setting the vehicle in motion.
40The appellant essentially asks this court to interpret the presumption as though it said “If A, then B, unless C or D” – in other words, to read in an additional method of rebutting the presumption that is simply not in the text. Given that Parliament expressly set out one method of rebutting the presumption, the court can infer that the failure to mention another means of rebutting the presumption was the result of a deliberate decision to exclude it: R. v. Wolfe, 2024 SCC 34, 497 D.L.R. (4th) 62, at para. 35.
41In light of the plain text, the appellant’s interpretation relies heavily on the context and purpose of s. 320.35. He argues that s. 320.35 is an evidentiary presumption intended to facilitate proof of impaired operation. Given that Parliament did not intend criminal liability in the absence of a realistic risk of danger for the offence proper, it arguably would not have intended this via the presumption either.
42This argument has some force. However, the context and purpose cut both ways and, in my view, yield more support for the Crown’s position than for the appellant’s. I say this for three reasons.
43First, Parliament’s purpose in enacting the presumption was not just to facilitate proof of impaired operation. As the Supreme Court put it in Whyte, “Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion.”: at p. 26. There is still deterrence value in criminalizing the action of entering the driver’s seat of a motor vehicle while intoxicated, even when (unbeknownst to the offender) the vehicle is in fact inoperable.
44Second, Parliament intended to relieve the Crown from having to prove certain elements of care or control. This is so even – or maybe especially – in situations where those elements could not otherwise be proven. As the Supreme Court explained in Whyte, the presumption was originally enacted in response to a problem with proving the mens rea of the offence. Courts at the time were holding that intoxication itself raised a reasonable doubt about the accused’s ability to form the required mens rea. “The purpose of the proviso was said at the time of its introduction to be to clarify the content of the offence and to make it difficult for an accused to avoid conviction for the care or control offence on the ground that he or she was too impaired to assume control of the vehicle” (emphasis added): at pp. 24-25. In other words, Parliament intended that certain accused persons should be convicted even where some of the elements of care or control could not be established. It is consistent with this purpose that the Crown should also be relieved of proving that there is a realistic risk of danger, even when a realistic risk of danger cannot otherwise be proven or does not exist.
45Third, as the Crown points out, the appellant’s interpretation produces certain consequences that are difficult to reconcile with Parliament’s intent. On the appellant’s interpretation, an intoxicated individual who gets into a serious accident and destroys his car so completely that it is inoperable would be in a better position than an intoxicated individual who enters his car with the intention of driving and then changes his mind and decides to take a nap instead and never leaves the driveway. The latter individual would be convicted under the presumption, while the former individual could rebut the presumption on the grounds that his vehicle was inoperable at the time he was discovered in the driver’s seat. This interpretation does not sit easily with Parliament’s purpose which includes addressing “the dangers posed by a person whose abilities to reason are impaired by alcohol”: Whyte, at p. 26.
46Therefore, while there is some force to the appellant’s argument about the context and purpose of the presumption, in my view, the context and purpose, on balance, favour the Crown’s interpretation. They certainly do not provide a reason to depart from the plain text of s. 320.35, which is the anchor of the interpretive exercise.
47This is also a complete answer to the appellant’s second argument that the Crown’s interpretation results in absurd consequences. The presumption against absurd consequences applies where an interpretation, for example, frustrates the purpose of the legislation; creates irrational distinctions; leads to ridiculous or futile consequences; or is extremely unreasonable or unfair: Piekut v. Canada (National Revenue), 2025 SCC 13, 502 D.L.R. 4(th) 1, at para. 98. As explained above, the Crown’s interpretation is consistent with Parliament’s purpose of deterrence and of relieving the Crown of the burden of proving certain elements of impaired operation. Further, the Crown’s interpretation actually avoids what could be characterized as an absurd consequence, by treating an intoxicated individual who gets into a serious accident and renders his vehicle inoperable more leniently than the intoxicated individual who gets into his car with the intention of driving and then changes his mind and never leaves the driveway.
48Finally, in relation to the appellant’s third argument that this court should prefer the interpretation that better accords with the Charter, it is sufficient to say that I do not consider there to be any ambiguity in the provision. The text is clear, and, on the whole, supported by the context and purpose of the presumption. Absent ambiguity, there is no basis to interpret the presumption such that it avoids the Charter concerns raised by the appellant: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 61-66; La Presse inc. v. Quebec, 2023 SCC 22, 485 D.L.R. (4th) 652, at para. 24.
49It bears emphasizing that this appeal is not a constitutional challenge. The appellant does not ask this court to strike or read down the presumption on constitutional grounds. This appeal raises a question of statutory interpretation only.
G. CONCLUSION
50As I have explained, the trial judge erred in law when he concluded that the presumption under s. 320.35 could be rebutted by evidence that the appellant’s vehicle was inoperable and posed no realistic risk of danger. I agree with the summary conviction appeal judge that the presumption may only be rebutted by proof that the appellant did not enter the driver’s seat for the purpose of setting the vehicle in motion. Accordingly, I would dismiss the appeal and remit the matter to the Ontario Court of Justice for a new trial.
Released: August 6, 2026 “P.R.”
“D.A. Wilson J.A.”
“I agree. Paul Rouleau J.A.”
“I agree. L. Madsen J.A.”
Footnotes
- Prior to 2018, the offence of having care or control of a motor vehicle was set out in s. 253. In 2018, Parliament passed Bill C-46, which repealed s. 253 and replaced it with the current s. 320.14: An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments, S.C. 2018, c. 21, ss. 14-15. Bill C-46 subsumed “care or control” into the definition of “operate”. Bill C-46 also made a number of other changes to the offence of impaired operation that have no relevance to the issues in this appeal.
- At the time, s. 237(1)(a) provided that: “where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion”.
- At the time, the presumption was found in s. 258(1)(a) and provided: “where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle […] the accused shall be deemed to have had the care or control of the vehicle […] unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle […] in motion […]”