No sooner was the festive season out of the way than we were encouraged by various charities to give up alcohol for January in the ‘Dryathlon’ and ‘Janopause’. Many congratulations to those that saw it through to the end, but as we start February, give alcohol and whether or not you intend to drive some thought before you tumble off the wagon………

Most of us know that a conviction for driving with excess alcohol will result in the loss of your driving license for aminimum of 12 months (which may be reduced to 9 months should you be offered and successfully complete the Drink Drive Rehabilitation Scheme) depending on the level of your reading and what the court considered to be ‘aggravating circumstances’….. but what if you weren’t driving? ….What if, have had a few too many, you chose to ‘sleep it off ‘in the car?

This is one of two common scenarios. The most common is the person who came into town for a night out, possibly with the intention of getting a cab home, and for a number of reasons can’t make it back. He or she decides to sleep it off in the car until the morning. The second scenario is the person who, having had a disagreement with a friend or partner is unceremoniously ejected from premises and, having no other reasonable option, decides to wait it out in the car.

It is an offence to be ‘drunk in charge’ of a vehicle on road or public place. There is no legal definition of what ‘in charge’ amounts to but the courts have held that a person is in charge of a motor vehicle if he acted in a manner which showed that he had assumed control of it or intended to assume control of it before driving it. The keys do not have to be in the ignition, you do not even have to be in the driver’s seat. Quite a few people draw attention to themselves because they have the engine on so that they can keep warm or listen to the radio.

Once the police can establish that you are (a) in charge of a vehicle (b) on a road or public place (c) you have consumed so much alcohol that the proportion in your breath, blood or urine exceeds the prescribed (legal) limits, you have committed the offence.

The Road Traffic Act 1988 provides that a defendant will not be guilty of the offence if he can prove (on the balance of probabilities) that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving whilst the proportion of alcohol in his body exceed the prescribed limits.

In R v Thompson the court held that more than just the defendant’s word that he would not have driven until he felt ‘alright’ was required to raise this defence.

Medical or other evidence will also be needed to establish the likely alcohol level at the time the defendant stated he would drive next.

If the arrest criteria are met, the onus would therefore be on you to convince the Magistrates that you had no intention to drive until you were under the limit – this involves being able to show when you would have been under the limit andwhy you would have not driven before that time ….bearing in mind you wouldn’t have known when ‘that time’ was as you drifted off to sleep………see the problem??!!

Of course, the answer is to always make sure you know how you’re getting home and to let your host win every argument, but life is never that simple….. If sleeping it off in the car is the last resort, it is in everyone’s interests that you perhaps hand the keys to someone else with the proviso that they do not give them to you for at least 24 hours (this does not guarantee that the police won’t consider you to be ‘in charge’ of the vehicle, but it may assist a defence) or that you make plans to get home the next day by some other means and don’t drive at all. Again, this advice may not prevent arrest, but it may assist you in making your point later on.

If you are convicted, the maximum penalty for being drunk in charge is a fine up to Level 4 (£2,500) on the standard scale or a maximum term of imprisonment of three months.

Disqualification is discretionary but endorsement of ten penalty points is obligatory. If you already have two penalty points or more on your licence, you will be disqualified from driving under the ‘totting up’ provisions

Road Traffic Act law is far from black and white. Our crime team realise that even the most minor traffic infraction can have a significant effect on your job, income and family. We will provide clear, honest, straight forward advice as soon as you come to see us. We will examine the facts and do what we can to ensure you receive the best possible outcome.

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