A question of law and Drink Driving.
Discussion
We have been having a bit of a debate on how a driver stands in the following hypothetical situation, and would ask some of our Trafpol bretheren to point us in the right direction.
You drive home from the supermarket, loaded up with shopping, and park on the street outside your house. You get out, lock the car, and go inside, where you sit down with a friend or the wife and have a couple of glasses of wine or three.
You then go outside, and, keys in hand, unlock the car and start to remove the shopping.
The question is, could you be done for drink driving? Or more specifically, being drunk in charge of a motor vehicle?
It's remarkably similar to the situation of being done while sleeping it off in you car, while having the keys in your pocket.
I should add that this is to settle an argument, and none of us have such a case pending.
Any answers for this, Tonyrec, Gone, Silverback Mike, lawyers?
You drive home from the supermarket, loaded up with shopping, and park on the street outside your house. You get out, lock the car, and go inside, where you sit down with a friend or the wife and have a couple of glasses of wine or three.
You then go outside, and, keys in hand, unlock the car and start to remove the shopping.
The question is, could you be done for drink driving? Or more specifically, being drunk in charge of a motor vehicle?
It's remarkably similar to the situation of being done while sleeping it off in you car, while having the keys in your pocket.
I should add that this is to settle an argument, and none of us have such a case pending.
Any answers for this, Tonyrec, Gone, Silverback Mike, lawyers?
OK, this is much as I thought would be the case. Now, to stretch the point of law, at which point does one cease to be drunk in charge of a motor vehicle? Same scenario, but you don't go outside and unlock the car, but sit in the garden with the keys in your pocket, and the car 5m away over the fence. Do the same rules apply?
It is a case of common sense Jock. If you are in the garden, no where near the car, not operating any of the vehicles systems there is no reason to question you about the car, then to smell alcohol, then to form the opinion you have ingested alcohol, to require a roadside breath test.
If you wandered over to the car, say, to get a compact disc to play in the garden cd player, and BIB arrived as you were closing the door, you would (breath test depending) be arrested for drunk in charge.
From BIB point of view, you may have just driven the car untold distance.
Hope that makes it a bit clearer....ish...
If you wandered over to the car, say, to get a compact disc to play in the garden cd player, and BIB arrived as you were closing the door, you would (breath test depending) be arrested for drunk in charge.
From BIB point of view, you may have just driven the car untold distance.
Hope that makes it a bit clearer....ish...
Section 5 of the Road Traffic Act 1988 provides the offences of a person driving or attempting to drive or being in charge of a motor vehicle on a road or public place after consuming so much alcohol that the proportion of it in their breath, blood or urine exceeds the prescribed limit. It states:
5(1) If a person -
(a) drives or attempts to drive a motor vehicle on a road or other public place, OR
(b) is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
5(1) If a person -
(a) drives or attempts to drive a motor vehicle on a road or other public place, OR
(b) is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
One for the BiBs. I know you are going to say "But it's illegal" but what would the view be if you went out and were unexpectedly inebriated so decided to sleep it off in the car?
To me it seems like the right thing to do, but I expect you could end up in a heap of trouble.
Can you be in charge if you give the keys to someone else before you crash out?
To me it seems like the right thing to do, but I expect you could end up in a heap of trouble.
Can you be in charge if you give the keys to someone else before you crash out?
Drunk in charge, Section 5 RTA 1988 applies to roads and public places and to motor vehicles. It does not apply to vehicles parked in private premises.
If your car was on your driveway, then you went to get your shopping out whilst paralytic, then you would not be subject to arrest under Section 5.
If you had driven from the shop whilst pissed and got home. The Police had been given information about your driving whilst pissed would then have power to enter your premises by force if necessary to arrest for 'Having been in charge' (Section 4(6) Road Traffic act 1988)
So by all means, park your car on your private driveway and sit in it when you are pissed with the keys in you hand/ignition, engine running and be perfectly safe.
Do not under any circumstances do this if it is parked on a road or other public place as you will be well and truly nicked!
If your car was on your driveway, then you went to get your shopping out whilst paralytic, then you would not be subject to arrest under Section 5.
If you had driven from the shop whilst pissed and got home. The Police had been given information about your driving whilst pissed would then have power to enter your premises by force if necessary to arrest for 'Having been in charge' (Section 4(6) Road Traffic act 1988)
So by all means, park your car on your private driveway and sit in it when you are pissed with the keys in you hand/ignition, engine running and be perfectly safe.
Do not under any circumstances do this if it is parked on a road or other public place as you will be well and truly nicked!
ricardo g said:
For example. If I go away to a rally and am sleeping in the car but decide ot go to the pub to join in in the festivities and come back and sleep in the car... surely common sense would prevail?
If you were parked on on a road (Roads go from hedge to hedge and include verges adjacent to them), then you would fall within the scope of Section 5. If you were parked in a private field which had public access to be used as a car park for those attending the rally, then you would be subject to Section 5 RTA 1988.
Public places in traffic law are not just those which are solely public in the general sense. They can even be public if you have to pay to get into them.
If you were parked on a friends private driveway and sleeping in your car having walked to and from the pub and got pissed, then you would not be subject of Section 5.
mad jock said:
You drive home from the supermarket, loaded up with shopping, and park on the street outside your house. You get out, lock the car, and go inside, where you sit down with a friend or the wife and have a couple of glasses of wine or three.
You then go outside, and, keys in hand, unlock the car and start to remove the shopping.
The question is, could you be done for drink driving? Or more specifically, being drunk in charge of a motor vehicle?
There are two simple answers to this:
1) Get "'er indoors" to do the shopping (my approach).
2) Get "'er indoors" to carry the shopping from car to house (also my approach).
The two are not mutually exclusive!
Streaky
There are two simple answers to this:
1) Get "'er indoors" to do the shopping (my approach).
2) Get "'er indoors" to carry the shopping from car to house (also my approach).
The two are not mutually exclusive!
Streaky[/quote]
Nice to read the age of male chivalry still exixts?
DVD
PS. U up early again - got out of a warm bed to go home?
>> Edited by Dwight VanDriver on Friday 18th June 07:21
OK First I should own up to starting this discussion with Mad Jock.
Seems it was as I thought; if I go to get my shopping from the car while over the limit I run the risk of being prosecuted.
Can't help but thinking though that the road traffic act is rather unclear on this one; I can't find a definition of "being in charge of a vehicle" but do note the possible defence of being able to prove that one had no intention of driving the vehicle, although how one shows one had no intention is unclear. Additionaly I can see the interpretation applied to the law in this case i.e. if you have your keys on a public road then you are in charge of the vehicle and this may be extended to private ground under certain circumstances. However it seems a pity that the converse is not also applied i.e. if no offence is commited in a private driveway then surely where no driveway exists in front of ones place of residence then for the purposes of this act cars parked in such a way could be viewed as being on private property. After all we're not all fortunate enough to posess a driveway.
Perhaps if I remove the wheels from my car before getting the keys to the boot I could be in the clear. Seems a little extreme though!!!!
Seems it was as I thought; if I go to get my shopping from the car while over the limit I run the risk of being prosecuted.
Can't help but thinking though that the road traffic act is rather unclear on this one; I can't find a definition of "being in charge of a vehicle" but do note the possible defence of being able to prove that one had no intention of driving the vehicle, although how one shows one had no intention is unclear. Additionaly I can see the interpretation applied to the law in this case i.e. if you have your keys on a public road then you are in charge of the vehicle and this may be extended to private ground under certain circumstances. However it seems a pity that the converse is not also applied i.e. if no offence is commited in a private driveway then surely where no driveway exists in front of ones place of residence then for the purposes of this act cars parked in such a way could be viewed as being on private property. After all we're not all fortunate enough to posess a driveway.
Perhaps if I remove the wheels from my car before getting the keys to the boot I could be in the clear. Seems a little extreme though!!!!
High Court in DPP v Watkins 1989 went some way to try and define what i/c is and declared that
where the driver is the owner and had recently driven then it was up to him to prove no longer i/c of the vehicle and no likelyhood of resuming control whilst still drunk.
Where not the owner and had recently driven it is up to the Prosecution to show defendant was in voluntary control of the vehicle or intended to become so in the imediate future.
Coming to a verdict Courts should consider three points
If defendant had keys for the vehicle,
Where defendant was in relation to vehicle at the time,
What evidence is there of defendants intention to take control of the vehicle.
DVD
where the driver is the owner and had recently driven then it was up to him to prove no longer i/c of the vehicle and no likelyhood of resuming control whilst still drunk.
Where not the owner and had recently driven it is up to the Prosecution to show defendant was in voluntary control of the vehicle or intended to become so in the imediate future.
Coming to a verdict Courts should consider three points
If defendant had keys for the vehicle,
Where defendant was in relation to vehicle at the time,
What evidence is there of defendants intention to take control of the vehicle.
DVD
A good friend of mine lost his license in pretty shity circumstances. He lived in the pub and had been drinking at lunchtime, the pub closed in the afternoon and was therefore no longer a "public" house, however the brewery made a delivery mid afternoon and he needed to move his car within the pubs carpark to allow access to the cellar, the pub is on a corner and the carpark has access from two roads, this means it used to be sometimes used as a bit of a rat run if the roads were busy, Woman on school run (late) rat runs through carpark and bang accident, plod, breathaliser, court, bus for a year, end of chat. IMO he was as good as on his own bloody drive and the woman was in the wrong as she had no right to be there, however technically he was bang to rights and got done.
This is a particularly silly bit of law. It hsould be incumbent upon the arresting officer to have reasonable grounds for suspicion that the suspect had either just driven the car or was about to drive it.
If I, after three glasses of wine, go out to get a CD out of the car boot and a passing Policeman smells alcohol, decides to call assistance with a breathalyser, I test positive, am arrested and banned form driving, tehn I will be more than a little upset.
If I, after three glasses of wine, go out to get a CD out of the car boot and a passing Policeman smells alcohol, decides to call assistance with a breathalyser, I test positive, am arrested and banned form driving, tehn I will be more than a little upset.
silverback mike said:But this isn't about common sense - common sense has nothing to do with the law....
It is a case of common sense Jock. If you are in the garden, no where near the car, not operating any of the vehicles systems there is no reason to question you about the car, then to smell alcohol, then to form the opinion you have ingested alcohol, to require a roadside breath test.
silverback mike said:I understand that this is the law, but it doesn't mean that it is a just law. This is yet another case where you are guilty until proven innocent. It should be nothing to do with the BIBs point of view, it should be up to them to prove that someone *had* driven the car, rather than could have or might do...
If you wandered over to the car, say, to get a compact disc to play in the garden cd player, and BIB arrived as you were closing the door, you would (breath test depending) be arrested for drunk in charge.
From BIB point of view, you may have just driven the car untold distance.
Hope that makes it a bit clearer....ish...
Even if it could be proven that someone *hadn't* driven, the fact that they might, still makes them a crim in this case - a thought crime if you will....
Although these laws might be good intentioned, they are just a drip drip drip erosion of our liberties on the way to an Orwellian state.
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