Many people are unaware that it is not necessary to actually drive a vehicle in order to be charged with a drink driving offence. Someone who is intoxicated, and has control of a vehicle, can be charged with the offence of 'drunk in charge of a vehicle ' even if the car is not being driven at the time.
Whilst not as serious an offence as 'Driving or attempting to drive while above the legal limit or unfit through drink' it is still a criminal offence carrying a mandatory 10 penalty points, a fine of up to £2500 and other potential penalties including imprisonment for up to 3 months. Disqualification from driving is, however, at the discretion of the court, and not mandatory.
In order to be convicted a defendant has to be over the limit, and in charge of the vehicle; which must be in a public area. Unfortunately the term 'in charge of the vehicle' is open to a wide range of interpretations. However, there is a defence if the accused person can prove, or show beyond reasonable doubt, that there was no intention of driving the vehicle, then an acquittal should follow.
The Road traffic act 1988 section 5 states:
“The defendant must prove that it was more likely than not that he had no intention of driving whilst the level of alcohol in his breath, blood or urine remained above the prescribed limit in which case, he is not considered to be in charge”. Unfortunately, this act also states that, rather than the usual assumption that a person is innocent until proved guilty, in this case the onus is upon the accused person to convince the court that there was no likelihood of the car being driven.
This has led to people who have fallen asleep in their car after a little too much to drink being convicted.
It is therefore up to the court to decide whether or not the person concerned was likely to drive, and to help them do this they will probably consider, amongst others, the following factors:
- Where the defendant was sitting
- What the defendant was doing at the time
- Where the car keys were
- Whether or not any other person was in the vehicle
- Whether or not the defendant owned, or normally had control, of the vehicle.
Since this offence is so vaguely defined, there is more chance of accused persons getting acquitted than if they were charged with 'driving whilst under the influence'. Once again, the advice of properly qualified and experienced lawyers may prove invaluable!