An "interesting one". Failure to provide breath, not driving
Discussion
A hypothetical example. Say you and a mate are walking back to a car after a night out, you're hammered and your mate is driving you home. The police spot you both ask you for a breath test, you refuse as you’re not going to drive (car / insurance etc. in mates name) so you end up in court then you get banned?
If this is the case, I wonder how many people actually know it's the case
If this is the case, I wonder how many people actually know it's the case
Edited by Type R Tom on Tuesday 22 July 21:37
Type R Tom said:
A hypothetical example. Say you and a mate are walking back to a car after a night out, you're hammered and your mate is driving you home. The police spot you both ask you for a breath test, you refuse as you’re not going to drive (car / insurance etc. in mates name) so you end up in court then you get banned?
Who has the keys / is in charge of the vehicle? If the mate is then you're not going to get asked to provide a sample for analysis. agtlaw said:
If statutory warning is absent then that would be a defence. In reality, they would charge the refusal at the cop shop (where there's CCTV and/or a MGDD/A record of refusal.
On a side-note, I was once told if someone refuses but you don't suspect alcohol then you should report on summons at the road side. Any experience of a case like this? Whats the score with Campers or roof tents when you need access to the vehicle? Admittedly it would be a hard faced copper who did you for that. I have slept in a van (with bed in the back) at my local (which was miles from anywhere) plenty of times when pissed up I did stumble in the back doors (oo-er) but legally was I in charge of a vehicle?
If depends if it's a dwelling. A camper van being used for camping is clear, a van with a bed in the back less so. But it would depend on the circumstances. You only need to prove it more likely than not (the balance of probabilities evidential threshold) you had no intention to drive (unless you refused to provide a sample). Having a bed in the back implies the intention was to use it, and not drive.
The "drunk in charge" law puzzles me.
Say I come home from the pub, pished, and the mrs is out with her mates. Legally speaking, am I considered "in charge" of the three vehicles whose keys are in my house (one being parked on the road, one on the drive and one in the garage)?
Or am I OK as long as I don't get in any of them?
It's a weird law, can't think of a circumstance where it would be genuinely useful to society without the drink-drive law applying as well.
Say I come home from the pub, pished, and the mrs is out with her mates. Legally speaking, am I considered "in charge" of the three vehicles whose keys are in my house (one being parked on the road, one on the drive and one in the garage)?
Or am I OK as long as I don't get in any of them?
It's a weird law, can't think of a circumstance where it would be genuinely useful to society without the drink-drive law applying as well.
Jonny_ said:
Say I come home from the pub, pished, and the mrs is out with her mates. Legally speaking, am I considered "in charge" of the three vehicles whose keys are in my house (one being parked on the road, one on the drive and one in the garage)?
You may be in charge, but you're in a dwelling so don't fall within the scope of the drink and drive law. Jonny_ said:
Or am I OK as long as I don't get in any of them?
You can do what you want on your private property. The law only applies when on a road or public place. A public place can be private property the public have access to, like a supermarket car park, for example. Jonny_ said:
It's a weird law, can't think of a circumstance where it would be genuinely useful to society without the drink-drive law applying as well.
For people about to drink and drive who don't make it to actually drive before being stopped. For people slumped across their wheel too drunk to drive, but when they become slightly less drunk they will. La Liga said:
On a side-note, I was once told if someone refuses but you don't suspect alcohol then you should report on summons at the road side. Any experience of a case like this?
This is correct. The power of arrest in relation to failing to provide a preliminary specimen (RTA 1988 s.6D(2)) only applies where a Constable reasonably suspects a person has alcohol in their body. If there is no suspicion they should be reported for summons. Cat
La Liga said:
Jonny_ said:
Say I come home from the pub, pished, and the mrs is out with her mates. Legally speaking, am I considered "in charge" of the three vehicles whose keys are in my house (one being parked on the road, one on the drive and one in the garage)?
You may be in charge, but you're in a dwelling so don't fall within the scope of the drink and drive law. Jonny_ said:
Or am I OK as long as I don't get in any of them?
You can do what you want on your private property. The law only applies when on a road or public place. A public place can be private property the public have access to, like a supermarket car park, for example. Jonny_ said:
It's a weird law, can't think of a circumstance where it would be genuinely useful to society without the drink-drive law applying as well.
For people about to drink and drive who don't make it to actually drive before being stopped. For people slumped across their wheel too drunk to drive, but when they become slightly less drunk they will. Thanks La Liga, that makes it a lot clearer 
Wouldn't it make more sense to require evidence of intent to drink drive, e.g. sat in drivers seat with ignition on?
La Liga said:
or people about to drink and drive who don't make it to actually drive before being stopped. For people slumped across their wheel too drunk to drive, but when they become slightly less drunk they will.
This does make some sense, but doesn't cater for the many and varied situations where someone might otherwise legitimately return to their vehicle while drunk for reasons other than to drive it. To collect keys, a coat, make a phone call, get out of the rain, etc. Wouldn't it make more sense to require evidence of intent to drink drive, e.g. sat in drivers seat with ignition on?
Cat said:
La Liga said:
On a side-note, I was once told if someone refuses but you don't suspect alcohol then you should report on summons at the road side. Any experience of a case like this?
This is correct. The power of arrest in relation to failing to provide a preliminary specimen (RTA 1988 s.6D(2)) only applies where a Constable reasonably suspects a person has alcohol in their body. If there is no suspicion they should be reported for summons.Pit Pony said:
The law should be changed, so that you can only be charged if the wheels are turning.
Then you'll miss all the preceding risk , opportunities for prevention and have more drink-drivers on the road. You may be happy to accept that, I'm not, and neither is parliament. Jonny_ said:
This does make some sense, but doesn't cater for the many and varied situations where someone might otherwise legitimately return to their vehicle while drunk for reasons other than to drive it. To collect keys, a coat, make a phone call, get out of the rain, etc.
Wouldn't it make more sense to require evidence of intent to drink drive, e.g. sat in drivers seat with ignition on?
It's a good question and in a fashion intent 'is' proven, but not by the prosecution, which is unusual. Wouldn't it make more sense to require evidence of intent to drink drive, e.g. sat in drivers seat with ignition on?
If you're charged with drunk in charge / drink driving it then falls to you to prove you had no intention to drive. This is to a lower threshold of proof i.e. you need to show it was more likely than not you did not intend to drive i.e. greater than a 50% chance you weren't. This is a low threshold and things like not being in the driver's seat, asleep in the rear, perhaps putting the keys in the boot can make this quite achievable. If you're unable to do this then, practically, the inference is that you did - at least to a degree greater than 50%
Drunk in charge isn't a common offence and most I've ever seen are the "nailed on" ones i.e. sat slumped over the wheel with keys in the ignition. I can't recall one where some bloke has left a pub and been vaguely near his car.
agtlaw is much better placed than I to talk about how 'easy' it is to achieve the statutory defence (that you had no intention to drive) as he works in the court.
I dislike it because it's the kind of law that lots of people break without doing any harm, but if a policeman decides that he thinks you are up to no good you are caught bang to rights. It would make policing a lot easier if there was a "stepping on the cracks in the pavement" law which could be used against any ne'er do wells spotted behaving suspiciously, but of course that would be unreasonable. Of course the nice chaps who post here wouldn't use it unwisely, but coppers are just people as flawed as the rest of us. If that sounds as if I'm against police discretion, I'm not, it's just that I don't like something which is generally harmless being a serious offence.
I think that social attitudes towards drunk driving and the practical consequences of a conviction (and I don't think most people would differentiate between drunk in charge and drunk driving) have changed so much - and that's a good thing - that it's too serious an offence to risk pinning on an "innocent" person for the sake of more easily enforcing the law.
I think that social attitudes towards drunk driving and the practical consequences of a conviction (and I don't think most people would differentiate between drunk in charge and drunk driving) have changed so much - and that's a good thing - that it's too serious an offence to risk pinning on an "innocent" person for the sake of more easily enforcing the law.
otolith said:
I dislike it because it's the kind of law that lots of people break without doing any harm
Carrying a loaded sawn-off shotgun isn't doing any harm until it's discharged. It's about preventing harm. Many criminal laws are about prevention rather than taking action after the harm is done. otolith said:
but if a policeman decides that he thinks you are up to no good you are caught bang to rights.
A court decides whether or not you're up to no good. The police gather evidence. There are few other areas of legislation which have the volume of case law and guidance as drink-driving to establish what and what doesn't meet the criteria. What percentage of people who carry a sawn-off are up to no good? What percentage of people who unlock their car while not in a fit state to drive it are?
Yes, the court will decide, but as you point out, the burden of proof is reversed. If the OP's friend had given a sample, how likely do you think it is that he would have been acquitted?
Yes, the court will decide, but as you point out, the burden of proof is reversed. If the OP's friend had given a sample, how likely do you think it is that he would have been acquitted?
otolith said:
What percentage of people who carry a sawn-off are up to no good? What percentage of people who unlock their car while not in a fit state to drive it are?
Who knows? Both present a risk that can be prevented. otolith said:
Yes, the court will decide, but as you point out, the burden of proof is reversed. If the OP's friend had given a sample, how likely do you think it is that he would have been acquitted?
I don't know the likeliness. agtlaw said:
Cat said:
La Liga said:
On a side-note, I was once told if someone refuses but you don't suspect alcohol then you should report on summons at the road side. Any experience of a case like this?
This is correct. The power of arrest in relation to failing to provide a preliminary specimen (RTA 1988 s.6D(2)) only applies where a Constable reasonably suspects a person has alcohol in their body. If there is no suspicion they should be reported for summons.Cat
Like I mentioned earlier there was a case of a protester at Barton Moss who was arrested and charged for failing to provide. The case was dropped. It is an absolute offence so why did the case get dropped? I would have expected the trial to go on and rhen the proteaester enter a defence as it is an absolute offence.
http://www.dailymail.co.uk/news/article-2553705/Fa...
Could it be because a video surfaced showing the policeman's version of events wasnt exactly accurate? Another case of video saves the day.
http://www.dailymail.co.uk/news/article-2553705/Fa...
Could it be because a video surfaced showing the policeman's version of events wasnt exactly accurate? Another case of video saves the day.
La Liga said:
Type R Tom said:
A hypothetical example. Say you and a mate are walking back to a car after a night out, you're hammered and your mate is driving you home. The police spot you both ask you for a breath test, you refuse as you’re not going to drive (car / insurance etc. in mates name) so you end up in court then you get banned?
Who has the keys / is in charge of the vehicle? If the mate is then you're not going to get asked to provide a sample for analysis. If you are in anyway near / linked to / inside a car regardless of how much you’ve drunk or your intention to drive or not it is always better to provide a sample than refuse?
Does you refusing to provide a sample need to be linked to proving there was an intention to drive? I.e. if you were stopped in the High Street on a night out (nowhere near a car) with your house / car keys and a policeman asks for a breath sample you can’t refuse?
Cat said:
La Liga said:
On a side-note, I was once told if someone refuses but you don't suspect alcohol then you should report on summons at the road side. Any experience of a case like this?
This is correct. The power of arrest in relation to failing to provide a preliminary specimen (RTA 1988 s.6D(2)) only applies where a Constable reasonably suspects a person has alcohol in their body. If there is no suspicion they should be reported for summons. Cat
otolith said:
I dislike it because it's the kind of law that lots of people break without doing any harm, but if a policeman decides that he thinks you are up to no good you are caught bang to rights. It would make policing a lot easier if there was a "stepping on the cracks in the pavement" law which could be used against any ne'er do wells spotted behaving suspiciously, but of course that would be unreasonable. Of course the nice chaps who post here wouldn't use it unwisely, but coppers are just people as flawed as the rest of us. If that sounds as if I'm against police discretion, I'm not, it's just that I don't like something which is generally harmless being a serious offence.
I think that social attitudes towards drunk driving and the practical consequences of a conviction (and I don't think most people would differentiate between drunk in charge and drunk driving) have changed so much - and that's a good thing - that it's too serious an offence to risk pinning on an "innocent" person for the sake of more easily enforcing the law.
If the court is happy you weren't going to drive whilst unfit or over the limit than you wouldn't have committed the offence (of being in charge). An officer facing a believable and reasonable explanation from someone suspected of being in charge should think twice before reporting.I think that social attitudes towards drunk driving and the practical consequences of a conviction (and I don't think most people would differentiate between drunk in charge and drunk driving) have changed so much - and that's a good thing - that it's too serious an offence to risk pinning on an "innocent" person for the sake of more easily enforcing the law.
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