Unfit To Drive/drunk In Charge Of A Vehicle

[The Dark Knight]

This subject cropped up on another forum I use and I thought it might make interesting discussion as it did on there. Many people are familiar with the offence of driving whilst over the alcohol limit (laymans terms) but you can be convicted just for being in charge of a vehicle whilst over the limit.

I have informed Clive of this post so that he can monitor discussion and provide answers as well as me. I know about the statute and case law in this regard and Clive just knows everything :D

So, discuss and ask questions if you wish!

[Stoney871]

(Well, not quite everything ;) )

[Philf1]

My understanding is that if you are over the limit and just sat behind the wheel even if not attempting to drive you can be charged. Personally I don't drink any more than an odd half pint occasionally. More often than not I just stick to soft drinks, its just not worth the risk of loosing your licence.

[Stoney871]

The offence is 'drunk in charge', even sleeping off drink in the back is bad if you have the keys.

[The Dark Knight]

Washing the car even. I believe though, that something would need to give rise to suspicion for police to intervene (Clive will know real world examples).

I suppose if police were driving down a street in the summer and saw several people all washing their cars but one of those people was downing a can of Fosters, this may make the police think that he or she may go on to drive that car whilst drunk. They are in some form of control of the car presumably and could be over the limit.

[Stoney871]

Discretion does apply unless they're Traffic Officers.

[The Dark Knight]

Just to play Devils advocate here, perhaps some members on here have de-frosted the car for their other half one morning so she can go somewhere but you aren't going anywhere yourself as you are suffering from heavy drinking the night before. You could still be over the limit but did it occur to you that you could be drunk in charge?

[GrahamJC]

I seem to recall that some yeas ago there was a court case where the driver, who had been drinking, left his car keys with

friends and slept in his car. When he was breathalysed and subsequently taken to court for being drunk in charge of the car

the court decided that as he did not have the car keys with him, he was not drunk in charge. Clive may be able to confirm or comment on this!

[Stoney871]

That is correct.

[Stoney871]

To put it into context-

You give your drunk mate a lift home.

You stop at a shop on the way home leaving the key in the ignition with the engine off.

Your mate stays in the car while you go to the shop.

Technically your mate is now DIC.

[The Dark Knight]

Here is a section of a post lifted from the other forum I mentioned (not my post though):

There is no legal definition for the term "in charge" so each case will depend on its exact circumstances and facts. Generally, a Defendant is "in charge" if he was the owner/in possession of the vehicle or had recently driven it. In charge can include attempting to gain entry to the vehicle and failing, having keys to the vehicle, having intention to take control ofthe vehicle or even "being near the vehicle".

[The Dark Knight]

Just as an aside, when dealing with theft for example, there are 2 separate elements within the offence:

Dishonestly appropriates property belonging to another - Actus reus (guilty act)

With the intention of permanently depriving the other of it - Mens rea (mental element/guilty mind)

In Latin: Actus non facit reum nisi mens sit rea (In simple terms: An act is not necessarily a gulity act unless it is accompanied by a guilty mind)

The point of mentioning the above, is I wonder if and how people think it applies when dealing with this offence. On the other forum, there was much discussion on this idea and how exactly the offence is proved. I would like to see what people think to this. (Not Clive initially though as he will know already lol :P )

[Stoney871]

Awww...

[Ianb]

Interesting topic, I was actually quite aware of this, as a youth I probably took a few risks such as crashing out in the car after a drinking - in fact we all used too, sleeping AT a friends in rooms with no locking doors was always dangerous - (we were very kind to people that passed out) so it was often the case that when someone was calling it a night they'd go to their car and lock the doors, that way remaining safe! - not from the law of course.

Actually an incident where a friend had parked his car in town and we'd gone out drinking, 3 of us and him went back to his car after everything closed to listen to music, I suppose with the view to going home in a taxi afterwards. His car had to have the key turned in the ignition in order to play music; which was not good!, the police did turn up and had us all out, breathalysed him etc etc, long story short the police officer was as good as gold and told him off and told him to get as far away from the car and not come back until the following afternoon! I think my friend needed a new pair of underpants afterwards but he was so relieved. He genuinely wasn't going to drive the car or move it, or even start the engine. Actually I recall the policeman looked fairly 'seasoned' so I'm guessing he was very good at picking truth from BS!

[Ianb]

Just as an aside, when dealing with theft for example, there are 2 separate elements within the offence:

Dishonestly appropriates property belonging to another - Actus reus (guilty act)

With the intention of permanently depriving the other of it - Mens rea (mental element/guilty mind)

In Latin: Actus non facit reum nisi mens sit rea (In simple terms: An act is not necessarily a gulity act unless it is accompanied by a guilty mind)

The point of mentioning the above, is I wonder if and how people think it applies when dealing with this offence. On the other forum, there was much discussion on this idea and how exactly the offence is proved. I would like to see what people think to this. (Not Clive initially though as he will know already lol :P )

On the guilty mind part I suppose the courts argue "ignorance is not an excuse" so doing something that you weren't aware was a crime is not an acceptable excuse (in most cases). Then as mentioned the definition of being in charge is potentially hazy, however if you and myself were standing together, I took out my phone and handed it to you for safe keeping; one would say that you were in charge of it. If we were to stand right next to my car and I handed you the keys, again people could argue that you are in charge of the keys, therefore, in charge of the car. As I mentioned in my previous post there is great room for discretion, which I suspect on the majority of cases actually means 'proving this will be difficult' (not in my friends case). But I suppose if I could be heard shouting "get lost, I'm too drunk to stay out, I'm driving home" whilst swinging my keys on my finger and walking towards the car, one could argue that it's a pretty clear cut case

[GrahamJC]

It is a long while since I covered criminal law but I am fairly sure drink/driving is almost a strict liability offence

together with speeding, ie the prosecution does not have to establish mens rea. In other words, it is no defence to say 'I

didn't know I was over the limit or speeding'!

[Stoney871]

Definitely no argument in court.

Ignorance of a law will not save you.

[The Dark Knight]

It is a long while since I covered criminal law but I am fairly sure drink/driving is almost a strict liability offence

together with speeding, ie the prosecution does not have to establish mens rea. In other words, it is no defence to say 'I

didn't know I was over the limit or speeding'!

AHA! The magic words of strict liability. Yes, you are correct, it is a strict liability offence. The Crown would need to prove that you were over the limit (police officer instructing you to carry out the breath test and you being over the limit) and that you were in charge of the vehicle. Being in charge, as discussed earlier, will depend upon the circumstances.

The defendant has a defence in law and is defined as follows in S.5 (2) of the Road Traffic Act 1988: It is a defence for a person charged with an offence under subsection (1) ( b ) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.

So, with the Crown having secured their evidence, the defendant has to prove on the balance of probabilities (not beyond all reasonable doubt) that there was no likelihood of driving.

Any thoughts on this?

[Stoney871]

Of course there is the fact that failing to provide a sample of breath either by the roadside or an evidentiary sample at a station and refusing to supply a sample of blood is an offence in itself and the penalties for such are exactly the same as providing a positive sample.

[The Dark Knight]

Of course there is the fact that failing to provide a sample of breath either by the roadside or an evidentiary sample at a station and refusing to supply a sample of blood is an offence in itself and the penalties for such are exactly the same as providing a positive sample.

Then there's attempting to drive whilst over the limit. On the matter of sentencing though, I have seen courts apply differing levels of punishment and one factor they will consider is how much over the limit the driver is. A driver who is 5 times over the limit should receive a harsher sentence than someone only just over the limit.

I wonder how the court would arrive at a decision when faced with someone who has refused to supply a sample. That person may be just over or 5 times over but they do not know for sure. Interesting...

[Stoney871]

Therein lies the problem.

You'll still get a ban and probably lose you job (if driving or commuting is a major factor) lose your house, break up relationships, be made to retake a driving test, pay steep insurance premiums etc.

About the only variations will be the length of ban and how severe the fine is.

[The Dark Knight]

I found the Magistrates Court sentencing guidelines in PDF format. The full details for sentencing for drunk in charge are too long winded to copy and paste here and the PDF won't copy and paste properly anyway.

It's at pages 145 & 146 if anyone wishes to find the document from google or I can email a copy.

[Stoney871]

Magistrates don't really wield the power anyway, it's the Clerk of the Court that knows the law and advises the Magistrates.

They just decide on how many times the chavrats can be let off with a warning before they do something even worse.

[gregers]

so if you were to sleep it off in your car,and you hid the keys in the boot under or in a case etc and you got pulled would the law still assume your dic?

or would a decent copper agree that you had no intention of driving said car and just give you a stern telling off?

[The Dark Knight]

Chavrats lol! I deal with Crown Court matters in my office. I'm support staff for the force, in criminal justice department.

On the other forum I mentioned, someone threw in a case from 2003 where a defendant appealed his conviction for this offence. The appeal said that the legal burden of proof imposed by the defence in the legislation (no likelihood of driving) was in breach of the defendants right to a fair trial under Article 6 of The European Convention on Human Rights.