Drunk in Charge of a Vehicle

What is the Offence of Drunk in Charge 

It is an offence under section 5(1)(b) of the Road Traffic Act 1988 to be “drunk in charge” of a vehicle on a road or other public place.  Assuming you are over the legal limit for driving, you do not need to be driving your car to commit an offence. To give a very basic example:

• a person’s car is parked in the street outside their house
• that person has been drinking alcohol in the house and would be over the legal limit for driving
• He/she has an argument with their spouse and decides to sleep in the car
• They take their car keys, open the car door, get into the back seat and promptly fall asleep
• In the eyes of the law, that person is (a) drunk and (b) by virtue of being in the car and having the keys is in charge of a vehicle. If the police came along and knocked on the window, that person could be arrested and ultimately prosecuted.

What Qualifies as Being “in charge” of a Vehicle?

This may not always be clear and each case turns on its own facts and circumstances. Some cases of being “in charge” could include:

• sitting in the driver’s seat
• being asleep in the rear seat and in possession of the vehicle’s keys
• being in the passenger’s seat and in possession of the vehicle’s keys

However the particular facts of these examples could likewise lead to a finding that the person was not in charge. The broad test to be applied is some measure of de facto control over the vehicle but even that is fact-sensitive. In many cases, where a person is found to be in charge in the narrowest possible sense, the defence of no likelihood of driving will usually be much easier to establish.

Other less obvious cases of being in charge include:

• Supervising a learner driver
• Sitting in a broken-down vehicle waiting to be towed

In short whether a person is in charge will sometimes be obvious. Sometimes will be less so. And it will always be a mixed question of fact and law.

Penalties for being Drunk In Charge

• Either 10 penalty points or discretionary disqualification from driving
• Fine of up to £2500
• A prison sentence of up to 3 months is competent but very unusual

Source:

• Road Traffic (Offenders) Act 1988, schedule 2

Will I be Disqualified?

Unlike the penalty for drink-driving or driving while unfit through drink or drugs, disqualification for being drunk in charge is discretionary rather than obligatory. It is open to the court to impose 10 penalty points albeit this may bring many drivers up to 12 points or more where the totting-up provisions come into play.

Periods of disqualification are usually the default position of the court but, as with other sentencing decisions, the precise facts of the case and the circumstances of the offender will be taken into account. It is fair to say that the higher the level of alcohol the more likely it is that disqualification will be imposed. Similarly the level of alcohol is likely to have a bearing on the length of the disqualification. Therefore legal advice and assistance is absolutely essential even if pleading Guilty.

Drunk in Charge Statutory Defence – No Likelihood of Driving

The prosecution will have a sufficiency of evidence to prove you are drunk in charge of a vehicle if:

• a person is found – awake or asleep – in their car or even getting into or out of their car;
• while that car is on a road or other public place;
• in circumstances which mean the person is “in charge” of the vehicle
• and that person is over the legal limit for driving

The prosecution does not need to prove that the person was attempting to drive the car. There is no requirement for the car’s engine to be switched on (but it can assist with a defence). The defence must prove that there was no likelihood of driving while the person remained over the legal limit. In effect the person has to prove their innocence by proving there was no likelihood of driving while still over the limit.

Some Crucial Elements of the Defence

• The burden of proof lies with the defence on a balance of probabilities.  It has been made clear judicially that it is not enough to prove that the accused would probably not have driven. On the other hand the accused does not have to exclude the possibility of driving altogether.
• The test for no likelihood of driving is judicially recognised as a “formidable hurdle” to the defence. It is hard to disagree with this as essentially the defence is being asked to prove a negative. It is therefore crucial that expert legal advice is sought and that the case is well-prepared.
• A crucial question is when the accused would have fallen below the prescribed limit. This is not an exact science but, nevertheless, a toxicology report from a recognised expert will be important As a general rule of thumb, the sooner one falls below the prescribed limit, the stronger the defence although that cannot be described as an absolute rule.
• Although it is not necessary to lead supporting evidence, it can prove crucial in establishing credibility and thus the defence.

Case Law:

• Ludriecus v Thomson 2008 SCCR 996: the legal test was not whether the accused was more likely to drive than not nor does the accused have to entirely exclude the possibility that he might drive. Whether there is ‘no likelihood’ of driving is
  matter of fact and circumstances. It  was clear that the test which Parliament had in mind was a high one.

The defence, as we hope is clear, is therefore all about preparation. As a dedicated, specialist firm, we have both the time and the expertise required to ensure that the case is properly prepared and professionally presented.

Why Instruct Us for your case?

Reason 1 – We Are The Pioneers

Other firms also claim this. But see when the domain was registered to see how long the firm have actually been online. Our domain was registered in 2001. We believe we were registered years in advance of any rival firm. We are invited, founder members of the Association of Motor Offence Lawyers.

Reason 2 – Our Statistics 

We base our success rate on 1000 independently analysed cases chosen at random. Other firms may claim even higher success rates. Do not simply accept them at face value. Ask them what their case sample size was. How do they define case success? We have successfully defended sports stars, famous personalities, peers of the realm, members of the Royal Family, fellow solicitors, advocates, leading QCs and police officers. We do not name names unless the case is already in the public domain but you can see some of our reported cases here.  As we helped them, so we can help you:

Drink Driving Case Results

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Reason 4 – Our Fixed Fee

We guarantee a Fixed Fee. It does not change no matter how often we need to attend court. There is no small print. There are no hidden costs.

Reason 5 – Nationwide Representation 

Although our offices are in Glasgow, we regularly defend motorists in every Court in Scotland. On any given month, our solicitors appear in courts across the country, including Aberdeen, Dumfries, Edinburgh and Paisley. Wherever your case is being heard, we have the experience and resources to represent you effectively.

Q: What are the prescribed limits for being drunk in charge?

A: These are identical to the current limits for drink driving. These prescribed limits changed in December 2014. They are 22ug in 100ml of breath, 50mg in 100ml of blood and 67mg in 100ml of urine. Although it varies from person to person, there is now a significant risk that one small glass of wine or one pint of beer will put a person over the legal limit to drive and therefore sufficient to establish the “drunk” element of being drunk in charge.

Q: I accept I was over the limit but I wasn’t going to drive?

A: The defence of no likelihood of driving will be relevant and we have discuss that in detail earlier on this page.

Q: I was sleeping in the back of my car. Why have I been charged??

A: This is where the law can appear so unfair. Legally this will be usually be sufficient to establish that you were in charge of the vehicle. It does not matter than you are sleeping. It does not matter that you are not attempting to drive the car. Nor does not even matter that the engine is switched off. However you can avail yourself of the defence of no likelihood of driving as discussed above.

Q: A pal gave me his car keys and asked me to get something from his glove compartment. I was opening the front passenger door when the police arrived. I have now been arrested.?

A: You are Not Guilty of the alleged offence. We would argue in these circumstances that you are not in charge of your vehicle. If this failed you would have an extremely strong defence of no likelihood of driving.

Q: I was parked in my own driveway/private car park/university grounds etc?

A: Although the precise facts will be crucial, on the face of it you may not be in a public place. As the onus of proof for this is on the Crown we would submit that you had no case to answer.

Q: Will I be disqualified if convicted?

A: Disqualification for being drunk in charge is discretionary rather than obligatory. It is within the gift of the court to impose 10 penalty points. Similarly it may be possible to persuade the court that only a short period of disqualification is appropriate. The level of reading, the other circumstances of the offence and your own personal circumstances will all be considered.

Q: Can I go to prison for being drunk in charge?

A: In theory, it is competent for an accused person to be sentenced to no more than 3 months in prison. In practice we have never had a client imprisoned for this offence. Moreover there is a presumption against imposing such short prison sentences. It is our opinion that only the most extreme case and/or that of a repeat serious offender that would carry even the remote risk of a prison sentence.

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