# Care & Control/ Refuse to breathalyze



## SKY2BASE (23 Jan 2013)

NYE 2012 
Arrested for Care and control plus refusal to breathalyze with trail taking place in march. Guilty or not guilty, My contract ends in september. Since this alcohol misconduct is second offence from 2007; If found guilty of NYE charges, I could be looking at 5F but not guilty, My career continues and Im not completely confident both charges will be dropped. 
-Can I release now and avoid 5f under c&p? or release during c&p without a 5f record? :-[

During this entire process, I have been on TCAT for PTSD from post tour epidsodes; 
Can I still be released medically, or will the system keep me engaged on medical?
And, Will the combination of aforementioned circumstances ultimatley keep me grounded in CF through this prcesss? ???


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## McG (23 Jan 2013)

You cannot voluntarily release to avoid an admin review (the process to decide if you are kicked out under 5f), and you can still be released 5f if found guilty (because, in contrast to the criminal code, admin does not have the same standard of evidence and it works on a balance of probabilities).


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## Infanteer (23 Jan 2013)

Sounds like a complicated case.

If your TOS expire prior to any Admin Review for conduct, from what I understand the release item for complete TOS will be replaced by whatever is dictated in the AR.  I am not sure how the results from an Admin Review for conduct at DMCA and an Admin Review-MEL at D Med Pol interact though.


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## McG (23 Jan 2013)

Infanteer said:
			
		

> I am not sure how the results from an Admin Review for conduct at DMCA and an Admin Review-MEL at D Med Pol interact though.


It is messy.  The unit should ensure the two responsible DMCA desk officers are aware of the other AR, because they don't always catch that on thier own.  From the OP's profile, I am aware that his unit has recent experience with parallel ARs and so they should be familiar with the ins & outs.


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## 392 (23 Jan 2013)

OP - As per the CM brief you attended last Monday with the rest of CFSME, unless your VIE ends prior to March, you won't see a voluntary release prior to your trial (i.e. the CM was quite specific in that no release without an AR happening prior to the end of TOS will be entertained)


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## DAA (23 Jan 2013)

You can submit a request for a "4.c." release anytime after completion of 36 months of service or after completion of any period of obligatory service or be released 3.a. or 3.b. (Medical).  However, if prior to release an AR has already been initiated or there are circumstances which raise the requirement for an AR, then this process continues.  Once completed, it may or may not impact on your "release item".  So even though you may have been released as a "4.c." or item "3", that item can always be changed to a less than desirable release item (ie; 5.d, 5.f. etc) at the discretion of DMCA.


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## cupper (23 Jan 2013)

Perhaps the bigger question you should be asking is "Where can I get help?"

And no, I'm not being snide, sarcastic or an ass hat.


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## SKY2BASE (24 Jan 2013)

They are all relevant facts to case though March trial will determine the ultimate outcome of career and life.

What should I do in mean time? Is 4C possible at this point? or what is possbile now?
Who would be understanding enough to listen? 

I did have a CM interview last week without possibility of promotion or posting until Case settles. I'm number one for promotion to Mcpl in CFSME and number sixteen within Canada. 
If not guilty; I can be promoted/posted during 2014.

If guilty; Where do I go after release from military with a criminal record?
Will medical catorgy keep me in CF beyond COS and 5F?

This all stems from one silly wrong time & place incident NYE 2012. I lost my opportunity to attend SAR selection and Sapper Leader course, Both of which started one after another. It was a humble return to unit after leave. Only second day back, both courses got cancelled, cancelled flights at OR and signed AR form for Ottawa. Above SAR selection; They had no one to send for Sapper Leader until last moment and Apparently everyone argued the fitness preparation time before course and the Badge Glorification, but I was still ready to roll for both courses. 

Here I am, One year later, awaiting trial in march while sitting patiently on back burner from CoC and troops in the know. No other courses, involvement in dive courses or anyother opportunities at large through this past year. Every military goal and pride for military lifestyle has been ticking away. "has been" 

I found futher passion in family, friends, fitness, skydiving, BASE jumping and snowboarding through the wait but what happens after the fact? what can i hold onto from this wait besides my salary? The answer to obvious pointing to family, passion and criminal experience but damn, it hurts like a broken heart. 

During wait, I have been examining the possibilities of pursuing passion as we all must retire one day and this may be it for me. I have a daughter that resides four hours away whom I visit every other weekend with a car and license, family tweenty-two hours away whom I visit with a car and license but how can I tie everything together without a license and consequently a car? My one possible answer, Put my girlfriend through pilot school while I continue working towards skydive tandem rating and ultimately retire with a traveling lifestyle. But, reality is a dream until trial.

Please feel free to fill my boots with all the possible, relevant and helpful advice possible. I'm a great person involved in a bad circumstance. Career PERs, family and friend character opinions are proof. I have a lot to offer any where I am destine to travel but for now, I must be patient.

Sky High - Dive Deep
CHIMO


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## mld (24 Jan 2013)

SKY2BASE said:
			
		

> This all stems from one silly wrong time & place incident NYE 2012.



Actually, didn't you say that this was a second offense? You had another alcohol offense in 2007. You should probably take this as a sign that you have a problem, and that this problem is causing you to lose many things in life. Just wait and see what happens, accept the consequences and keep living life.


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## MARS (24 Jan 2013)

Actually, your initial post indicates that your NYE incident was your second offence of this nature, the first being in 2007, so it is a little more serious than a 'silly one time wrong place and wrong time' incident.  If you truly believe that, then you need to stop lying to yourself.  In the eyes of the military, and likely the rest of society, you have a problem with alcohol.  In deciding to drive while impaired, you are elevating the problem from one of simply hurting yourself to a problem of being a danger to the rest of society, specifically the other drivers sharing  the Road wih you when you drive drunk.  

What to do in the meantime?  I dunno, seek help maybe?  See what kind of AA/rehab programs exist in your area?  Keep your nose clean?  My 2 cents but I would suggest those are options to pursue.  Stop worryin about cancelled courses.  i dont see how that will help your predicament. But good luck with the whole pilot school/tandem skydiving thing.


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## SKY2BASE (24 Jan 2013)

MARS said:
			
		

> In deciding to drive while impaired, you are elevating the problem from one of simply hurting yourself to a problem of being a danger to the rest of society, specifically the other drivers sharing  the Road wih you when you drive drunk.



The situation stems from Care & Control (societys way of saying intent to DUI)
During arrest, I was 200m away from my hotel which required a credit card for deposit. The area has been googled mapped and the lack of understanding from arresting officer has been noted. On this occasion, I did not carry my credit card and I needed to retrive it from my vehicle in parking lot. However, I did spend extra time gathering stuff from my vehicle, but before I knew it, I eneded up being part of a routine drive-up, and Long behold, I was arrested for c&c. The solo black cop probably did not like the fact I was with a black girl at time of arrest. My lawyer is suggesting racsim and harresment. From the arrest to booking, I refused a breathalyzer which was my second charge and ultimatley, The one charge that can not be dropped. I refused the breathalyer because it was not my intent to drive and only a intent to retrieve my credit card plus belongings and retreat back to hotel. The police arrested me with Only my debit card and license in possesion which further backs my case and intent not to DUI. I actually did not get my wallet back until I found my car in impound yard with the rest of my belongings.


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## SKY2BASE (24 Jan 2013)

mld said:
			
		

> Accept the consequences and keep living life.


The very existence of a previous alcohol related incident did not cross my mind until I spelled it out but It has been five years; I was tweenty-five when the first situation occurred and it does not affect me nearly as much as current circumstance. Things change Between 25yrs and 30yrs; Now its daughter, and family time on regular basis. 

I have always maintained a clean body, mind and spirit besides random acts of alcohol consumption(rare).
Its the very reason I have always been ready for challenges presented by CoC and my aspiring career in SAR and Clearance diving. My performance speaks for its self though this entire circumstance has halted my career in a administrative way.

Its above my radar at this point though being a alcoholic has not dawned on my existence. I do not give myself time to drink with all other activities. On the regular week(seasonal), I coach boxing, exercise, snowboard and visit my girlfriend, and two daughters during weekends. 

Your quote has furthered my passivity and view of circumstance. Thank You


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## GnyHwy (24 Jan 2013)

Be very careful with asking and answering questions on this forum, and discussing the events that took place, especially about potential evidence.  Your original question does not ask about advice on how to win your case, but I see the conversation going that way.  Your questions and answers could become binding and you should not be talking about anything that may be considered evidence or mitigating circumstances. 

I have a couple of questions and potential ideas for evidence that could hinder a guilty conviction and help prove your intent.  I will refrain though, because if you couldn't answer them then I would say you're FUBR'd.

Be careful, and keep the thread to your original questions about military admin procedure.  


Edited to add:  I had 2 specific questions I was going to ask that would help prove your innocence, but decided against it just prior to hitting the send button because of the reasons mentioned above.  If you want, PM me an email address and I will ask you there.


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## 392 (24 Jan 2013)

SKY2BASE said:
			
		

> The situation stems from Care & Control (societys way of saying intent to DUI)
> During arrest, I was 200m away from my hotel which required a credit card for deposit. The area has been googled mapped and the lack of understanding from arresting officer has been noted. On this occasion, I did not carry my credit card and I needed to retrive it from my vehicle in parking lot. However, I did spend extra time gathering stuff from my vehicle, but before I knew it, I eneded up being part of a routine drive-up, and Long behold, I was arrested for c&c. The solo black cop probably did not like the fact I was with a black girl at time of arrest. My lawyer is suggesting racsim and harresment. From the arrest to booking, I refused a breathalyzer which was my second charge and ultimatley, The one charge that can not be dropped. I refused the breathalyer because it was not my intent to drive and only a intent to retrieve my credit card plus belongings and retreat back to hotel. The police arrested me with Only my debit card and license in possesion which further backs my case and intent not to DUI. I actually did not get my wallet back until I found my car in impound yard with the rest of my belongings.



Have you actually asked your WO and Capt to inquire about the possible ramifications of these two charges, if you are not found guilty? AR or not, you should have been counseled on the outcomes either way. I might be wrong (and I don't for one second pretend to be a lawyer) but let's say you beat the Care and Control charge, I personally think that the refusal of a breathalyzer charge could be fought to be removed (random people walking down the street aren't normally breathalyzer'd, even when visibly very drunk) as it *should* be tied to your "attempt" to DUI; and if it is found there was no attempt to DUI, why would you need to submit a breath sample? Even if it were to proceed through, something is telling me that you would not be released for failure to supply breath sample for a dismissed charge. Again, this is not legal advice in any way shape or form, simply the musings of someone sitting behind a computer screen.


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## Container (24 Jan 2013)

SKY2BASE said:
			
		

> The situation stems from Care & Control (societys way of saying intent to DUI)
> During arrest, I was 200m away from my hotel which required a credit card for deposit. The area has been googled mapped and the lack of understanding from arresting officer has been noted. On this occasion, I did not carry my credit card and I needed to retrive it from my vehicle in parking lot. However, I did spend extra time gathering stuff from my vehicle, but before I knew it, I eneded up being part of a routine drive-up, and Long behold, I was arrested for c&c. The solo black cop probably did not like the fact I was with a black girl at time of arrest. My lawyer is suggesting racsim and harresment. From the arrest to booking, I refused a breathalyzer which was my second charge and ultimatley, The one charge that can not be dropped. I refused the breathalyer because it was not my intent to drive and only a intent to retrieve my credit card plus belongings and retreat back to hotel. The police arrested me with Only my debit card and license in possesion which further backs my case and intent not to DUI. I actually did not get my wallet back until I found my car in impound yard with the rest of my belongings.



You had been drinking and were trying to get a hotel after the fact....with your personal affects in your car....but werent drinking and driving that evening...

and the black police officer didnt like you because you were with a black female? hmmmm

Care and control and refusal are different things. Refusal is the easier charge to prove in court- all that needs to happen is a lawful demand and then an informed refusal.

Care and control- occupying the car with the keys while impaired by drug or alcohol. You can argue the intent of your being there at trial. But the demand for breath is still in play- the refusal to provide is pretty cut and dry. The breath demand doesnt say anything about you or your intent to operate a vehicle it says that the officer believes that you have enough alcohol in your blood that you SHOULDNT operate one. Nor is giving a breath sample an admisison of your intent. Moreover- he only has to believe reasonably that you committed the offence of impaired driving within the preceeding three hours. 

If I found a person, with keys on their person, in their vehicle looking for their credit cards so they could check into a hotel I would suggest that in the absence of other details explaining the circumstances it wouldnt be unreasonable for me to beleive you have driven to the hotel while having consumed alcohol. Especially given you were sitting outside of the hotel in your vehicle that had gotten there SOMEHOW.

I dont know much about the inner workings or releases and AR's. However- I think you might be being a little dishonest with yourself about your situation and should you avoid criminal conviction if someone looks at your circumstances on a balance of probabilities you will not come out favorably.

I do however wish you luck- and Ive been wrong in court lots. All police officers have.  So you may yet get a third chance.


*edited*


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## Cdnleaf (24 Jan 2013)

Agree with the above; also I don't get the sense that you realize your jeopardy and/or have accepted any responsibility for your actions, both of which will not bode you well in court.  You're a recent addition to army.ca and your profile reads like it was written by someone very immature for 30 years old:  _"Started out of high school at tweenty-three after several years of life experience off mommys nipple and Now, Im on military salary. Not much of a difference....."_  Good luck with your situation :


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## SKY2BASE (25 Jan 2013)

Thank you for everyones unbiased opinions in this matter; This forum is defiantly severing purpose towards a successful trial and military career. My friend referred me to this site for basic advice and career avenues. 
All this experience and political talk can really help any soldier on career path from recruit to veteran. 

Evidence and conversation are contrast to actual result but I believe in people and their suggestions.  :yellow:


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## Bruce Monkhouse (25 Jan 2013)

Good luck and, no matter how it goes, keep us informed. [if possible,...gag orders et al]


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## SKY2BASE (25 Jan 2013)

Bruce Monkhouse said:
			
		

> Good luck and, no matter how it goes, keep us informed. [if possible,...gag orders et al]



I'm really attempting to resolve this case and my innocents. When the trial takes place, It will be 14mths since incident. Back 14 months, If I wanted a guilty plea; I could have walked away with two convection's, a thousand dollar fine and breathalyzer machine in vehicle. The administration process through CMP would have been alot faster and my one year probation would have been finished last week. Lawyers told me at time that my case is strong and Now its more like, You will have one charge of refusal. 

I'm thinking now, I should have pleaded guilty since One charge or two charges is same consequence in civil world and CF but Both would have conflicted with Civil and military life. 

Civil: Criminal record, lack of world travel, license probation, custody issues etc The list goes on. 
Military: I'm sure everyone is aware of routine. C&P, possibly release, ceased career and career courses etc.. But here I am a year later with same consequences in CF but My opportunity for sustaining a civil life is success in trial. 

Any further unbiased information and additional referrals would be appreciated.
There is nothing to hide on here. 

100% commitment to success in life, military, family comrades, and living out life of fallen friends.

It was a wrong place and time; my practice of rare social drinking. We all know and understand the difference between right and wrong though a simple NYE with friends is harmless.

I had several options that evening including a simple evening with my mother and stepfather whom invited me but I said, "thank you for invite but I'm going to meet friends from Tour with my GF for a evening dinner and bring in NYE at hotel" BTW: I got picked up before New year. However, I corrected my path from last year and spent NYE with entire family; Including my mother and Stepfather. 

It did not all happening for a reason but I did make changes to adapt and strengthen future with net of military salary. I have since became a Skydive Coach/jump master, Can-fit pro Personal trainer and Scuba Instructor among daily health & fitness routines. Situations do change us for better and When you as low as I felt that evening, The only way is up!


Anybody can contact me via PM


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## Kat Stevens (25 Jan 2013)

Back then, why didn't you just blow and deal with the single charge of C and C?  Refusal is an automatic charge, and an impossible one to beat, that doubled your shit sandwich ration.


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## wesleyd (26 Jan 2013)

You are clearly in denial. If you were having a social drink you would have planned ahead, or just taken the breathalyzer. 
Seek help through counseling. Get your supervisor involved let him know you have a problem and need help.
This is not a wrong place wrong time issue. You made a choice now you have to deal with the consequences.
Sounds cold but just talk to any member of MADD. Cost of membership is extremely high.
Best of luck in you trial but I think seeking help through your CoC should be priority. 
Whatever happens on the admin side is now beyond your control.


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## Drag (26 Jan 2013)

wesleyd said:
			
		

> You are clearly in denial. If you were having a social drink you would have planned ahead, or just taken the breathalyzer.
> Seek help through counseling. Get your supervisor involved let him know you have a problem and need help.
> This is not a wrong place wrong time issue. You made a choice now you have to deal with the consequences.
> Sounds cold but just talk to any member of MADD. Cost of membership is extremely high.
> ...



+1
As a supervisor who has a subordinate in a similar legal predicament I have zero sympathy for the OP as he is clearly not taking responsibility for his actions and looking for scapegoats.  My guy at least took responsibility, sought counseling, resolved his issue and we worked to keep the impact to his career as limited as the regulations allow.

As an aside, I have a friend who was charged with a DUI after being found passed out in the middle of an intersection with his car still on and in gear.  His lawyer assured him that he had a very strong case and was more than happy to take $5K to represent him.  The results was that my friend was still convicted but had an additional $5K in costs that he wouldn't have had if he resolved the case in a different manner.


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## cupper (26 Jan 2013)

A former girlfriend of mine is a lawyer, and her advice was always blow unless you were involved in an accident where someone was injured or killed.


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