Advice needed -
Discussion
A friend has been a silly boy but I am trying to get some advice for him anonymously - he was standing outside his vehicle which was running the other night (parked up on the verge in the middle of the countryside) having a wee and the police decided to breath test him. He was 50mg on a breath test - which i understand is marginal but limit is 35m
Thing is he was not in the car at the time although engine was running.......
Any advice ?
I understand some may get heated at this but it is not in my intersest to serve and volley insults directed at him - just if anyone had any advice...you can see how low his measure was....
Thing is he was not in the car at the time although engine was running.......
Any advice ?
I understand some may get heated at this but it is not in my intersest to serve and volley insults directed at him - just if anyone had any advice...you can see how low his measure was....
206xsi said:
ie not even near the car!
I think you have to be in or around the car, but you don't have to be sitting in the driver's seat, and even giving the keys to someone in the passengers seat is not good enough to show your intention not to drive.
From what I understand, he was in the middle of the countryside, stopped for a wee. Anyone else in the car that could have been driving?
Did they take him down to the local nick and give him another breath/blood test 20 minutes later?
The only suitable advice I can think of, is to look into public transport options in your area.
Andy.
Your friend was in charge of the car. That is enough to be arretsed without even a roadside screening test. the engine is not required to run, just that there was evidence that there was a likelyhood of him driving. The onus of any defence to this is on the defendant to prove there was no likelyhood of him driving at that time. The circumstances you describe make that defence very unlikely for him to use.
Between 40 and 50 Ug% in breath, the accused has the option of replacing the breath specimen with blood. Unfortunately for him this is not the case as he blew 50 ug%
The only defence to this is that which I have stated. He needs a very good lawyer to pick through the paperwork which is his only hope of finding a glitch in procedure and a technical 'not guilty' on that basis.
Even sleeping in the car with the keys readily available is enough to get you arrested without screening test if you are drunk in charge
The situation is covered by Sections 4 & 5 Road Traffic Act 1988
Edited to add that the officer does not even need to be in uniform. CID officers can arrest for Drunk in charge.
>> Edited by madcop on Wednesday 10th September 17:24
Between 40 and 50 Ug% in breath, the accused has the option of replacing the breath specimen with blood. Unfortunately for him this is not the case as he blew 50 ug%
The only defence to this is that which I have stated. He needs a very good lawyer to pick through the paperwork which is his only hope of finding a glitch in procedure and a technical 'not guilty' on that basis.
Even sleeping in the car with the keys readily available is enough to get you arrested without screening test if you are drunk in charge
The situation is covered by Sections 4 & 5 Road Traffic Act 1988
Edited to add that the officer does not even need to be in uniform. CID officers can arrest for Drunk in charge.
>> Edited by madcop on Wednesday 10th September 17:24
madcop said:
Your friend was in charge of the car. That is enough to be arretsed without even a roadside screening test. the engine is not required to run, just that there was evidence that there was a likelyhood of him driving. The onus of any defence to this is on the defendant to prove there was no likelyhood of him driving at that time. The circumstances you describe make that defence very unlikely for him to use.
Between 40 and 50 Ug% in breath, the accused has the option of replacing the breath specimen with blood. Unfortunately for him this is not the case as he blew 50 ug%
The only defence to this is that which I have stated. He needs a very good lawyer to pick through the paperwork which is his only hope of finding a glitch in procedure and a technical 'not guilty' on that basis.
Even sleeping in the car with the keys readily available is enough to get you arrested without screening test if you are drunk in charge
The situation is covered by Sections 4 & 5 Road Traffic Act 1988
Edited to add that the officer does not even need to be in uniform. CID officers can arrest for Drunk in charge.
>> Edited by madcop on Wednesday 10th September 17:24
which makes the law a compleat
up go one holliday in a motor home parkup
go on the piss go home to bed in the bask
and thenicaly you can get done.
the laws an arss.
outlaw said:
Your friend was in charge of the car. That is enough to be arretsed without even a roadside screening test. the engine is not required to run, just that there was evidence that there was a likelyhood of him driving. The onus of any defence to this is on the defendant to prove there was no likelyhood of him driving at that time. The circumstances you describe make that defence very unlikely for him to use.
Between 40 and 50 Ug% in breath, the accused has the option of replacing the breath specimen with blood. Unfortunately for him this is not the case as he blew 50 ug%
The only defence to this is that which I have stated. He needs a very good lawyer to pick through the paperwork which is his only hope of finding a glitch in procedure and a technical 'not guilty' on that basis.
Even sleeping in the car with the keys readily available is enough to get you arrested without screening test if you are drunk in charge
The situation is covered by Sections 4 & 5 Road Traffic Act 1988
Edited to add that the officer does not even need to be in uniform. CID officers can arrest for Drunk in charge.
>> Edited by madcop on Wednesday 10th September 17:24
which makes the law a compleat
go one holliday in a motor home parkup
go on the piss go home to bed in the bask
and thenicaly you can get done.
the laws an arss.
The framework for these offences is quite sensible really - the onus is on you to prove that you were not going to drive if in fact you were in charge of the vehicle. If you were innocent then there's no problem, if you were so pissed as to not know that fact then then you are a risk to anyone else on the road and so need to be stopped. The motorhome defence is not a bad one - especially if you had 'pitched' the motorhome on a proper campsite, walked to the pub and walked back - I reckon you'd get away with it - that's why the accused gets an opportunity to prove his innocence. Can't be fairer than that.
But better than this is the fact that you can drive to a club, park your car outside on the street, or on their car park, have your keys to the car on you, go in the club, get pissed and still technically be in charge of your car and therefore could be arrested..
Tivster
Got to prove likelyhood of driving. In the real world it's to cover the bloke that's so arseholed he can't start his car, or even get into it.
How many times have any of you been in a pub when the BiB have come in and said "Right - who's got a car outside?"
Right. So stop being silly
How many times have any of you been in a pub when the BiB have come in and said "Right - who's got a car outside?"
Right. So stop being silly
Let's put this myth to bed:
Smoking:
If you've smoked, then you'll have to wait for twenty minutes to take the screening roadside breath test. And wait you will, if you refuse to and the officer dealing with you has reason to suspect you have alcohol in your body (note no suspicion of being over the limit at this stage an important fact) you will be arrested for failing to provide a specimen.
Two persons in charge:
To be deemed to be in charge of a mechanically propelled vehicle (note the term this includes ANY such vehicle - ride on mowers, dumper trucks etc) you neeed to be in reasonable proximity e.g. p155ing nect to the car, asleep in the back seat, parked outside the pub you are in etc. You do NOT have to be driving, the engine doesn't need to be turned on etc.
Any officer (doesn't have to be in uniform)who suspects that a person is driving, is attempting to drive or is in charge of a mechanically propelled vehicle on a road or in a public place (includes car parks to which the public have access, whilst unfit to drive through drink or drugs, has a poer under Section 4 Road Traffic Act to arrest. The only defence is for the person to prove that there was no likelyhood of him driving whilst he remained unfit to do so. This offence does not require a roadside breath test.
And then there's Section 5 of the Road Traffic Act - that deals with the offence of Driving With Excess Alcohol and uses the roadside breath test as a screening test. This only relates to motor vehicles and is a narrower definition than mechanically propelled vehicles. Also applies to roads AND Public places....
Both Section 4 and 5 use a breath test analysis device at a police station to provide quantifiable evidence of the proportion of alcohol in your breath. Section 4 also applies to unfit to drive/in charge etc through drugs and if this is suspected then blood or urine can be demanded. Section 4 offences can be corroborated by other means ie witnesses regarding the drunken state of the offender etc.
Tivster
Smoking:
If you've smoked, then you'll have to wait for twenty minutes to take the screening roadside breath test. And wait you will, if you refuse to and the officer dealing with you has reason to suspect you have alcohol in your body (note no suspicion of being over the limit at this stage an important fact) you will be arrested for failing to provide a specimen.
Two persons in charge:
To be deemed to be in charge of a mechanically propelled vehicle (note the term this includes ANY such vehicle - ride on mowers, dumper trucks etc) you neeed to be in reasonable proximity e.g. p155ing nect to the car, asleep in the back seat, parked outside the pub you are in etc. You do NOT have to be driving, the engine doesn't need to be turned on etc.
Any officer (doesn't have to be in uniform)who suspects that a person is driving, is attempting to drive or is in charge of a mechanically propelled vehicle on a road or in a public place (includes car parks to which the public have access, whilst unfit to drive through drink or drugs, has a poer under Section 4 Road Traffic Act to arrest. The only defence is for the person to prove that there was no likelyhood of him driving whilst he remained unfit to do so. This offence does not require a roadside breath test.
And then there's Section 5 of the Road Traffic Act - that deals with the offence of Driving With Excess Alcohol and uses the roadside breath test as a screening test. This only relates to motor vehicles and is a narrower definition than mechanically propelled vehicles. Also applies to roads AND Public places....
Both Section 4 and 5 use a breath test analysis device at a police station to provide quantifiable evidence of the proportion of alcohol in your breath. Section 4 also applies to unfit to drive/in charge etc through drugs and if this is suspected then blood or urine can be demanded. Section 4 offences can be corroborated by other means ie witnesses regarding the drunken state of the offender etc.
Tivster
madant69 said:
Got to prove likelyhood of driving. In the real world it's to cover the bloke that's so arseholed he can't start his car, or even get into it.
How many times have any of you been in a pub when the BiB have come in and said "Right - who's got a car outside?"
Right. So stop being silly
No you're wrong, the offence is one where the onus is on the DEFENCE not the prosecution to prove on the balance of probabilities, that there was little likelyhood of the defedant driving whilst he remained unfit to do so.
So if I come into a pub and ask the question to everyone inside - 'who's got a car in the car park?' theoretically all those that have their keys with them and are tanked up could be said to be in charge of their carsn and therefore could be subject to arrest under Section 4. The onus would be on each individual to prove their innocence.
Oh and I've used this offence dozens of time to arrest people driving, standing next to, asleep in the back of cars, including people who've mistakenly got into the wrong car or who are trying to start their car with their house key. All have been 'unfit'. So in the 'real world' it's a lot more useful than Section 5.
Tivster
>> Edited by Tivster on Wednesday 10th September 22:36
ok - so I have a few pints at home, and decide to retrieve my wallet or mobile phone from my car that is parked outside.
I go to the passenger side, and get item from glovebox.
Would I "be in charge" ??????? of course not, and why should I have to prove anything?
How utterly absurd. No wonder people lose respect for the law.
I go to the passenger side, and get item from glovebox.
Would I "be in charge" ??????? of course not, and why should I have to prove anything?
How utterly absurd. No wonder people lose respect for the law.
how can the british legal system make you 'guilty until proven innocent' of this 'crime'?
I thought the whole basis of our system was that the burden of proof was on BiB / Prosecution?
Also, wouldnt it be an infringement of your right to not self incriminate, given that you are assumed to have commited the crime, and so to disprove otherwise, you must accept that you are 'guilty until proven otherwise' ?
I thought the whole basis of our system was that the burden of proof was on BiB / Prosecution?
Also, wouldnt it be an infringement of your right to not self incriminate, given that you are assumed to have commited the crime, and so to disprove otherwise, you must accept that you are 'guilty until proven otherwise' ?
Tivster said:
Got to prove likelyhood of driving. In the real world it's to cover the bloke that's so arseholed he can't start his car, or even get into it.
How many times have any of you been in a pub when the BiB have come in and said "Right - who's got a car outside?"
Right. So stop being silly
So if I come into a pub and ask the question to everyone inside - 'who's got a car in the car park?' theoretically all those that have their keys with them and are tanked up could be said to be in charge of their carsn and therefore could be subject to arrest under Section 4. The onus would be on each individual to prove their innocence.
Tivster
LOL - I'd like to see you try THAT one - it would definitely make the nationals
It might be an idea to wait until you're eligible for your ill-health pension... 
>> Edited by madant69 on Thursday 11th September 08:39
[quote=tivster]Oh and I've used this offence dozens of time to arrest people .......asleep in the back of cars.......All have been 'unfit'. So in the 'real world' it's a lot more useful than Section 5. [quote]
That to me seems on the plain facts to be an abus of the law and for what purpose. If it is to prove that the BiB are the ones that hold the power over the motorist that is definetly the case. I cannot believe that the law was drafted to criminalise responsible
people and deprive them of their livelihoods.
I and I know many others have been in the situation of having one too many ( not necessarily plastered ) and due to factors such as being too far from home, no public transport, no bed at the inn etc of getting into the back of the car and sleeping overnight. Why should such people pose a risk ? Why should they be deemed to be in charge and arrested under the DD laws ? How is the public interest served ?
That to me seems on the plain facts to be an abus of the law and for what purpose. If it is to prove that the BiB are the ones that hold the power over the motorist that is definetly the case. I cannot believe that the law was drafted to criminalise responsible
people and deprive them of their livelihoods.
I and I know many others have been in the situation of having one too many ( not necessarily plastered ) and due to factors such as being too far from home, no public transport, no bed at the inn etc of getting into the back of the car and sleeping overnight. Why should such people pose a risk ? Why should they be deemed to be in charge and arrested under the DD laws ? How is the public interest served ?
Tivster said:
To be deemed to be in charge of a mechanically propelled vehicle (note the term this includes ANY such vehicle - ride on mowers, dumper trucks etc) you neeed to be in reasonable proximity e.g. p155ing nect to the car, asleep in the back seat, parked outside the pub you are in etc. You do NOT have to be driving, the engine doesn't need to be turned on etc.
Any officer (doesn't have to be in uniform)who suspects that a person is driving, is attempting to drive or is in charge of a mechanically propelled vehicle on a road or in a public place (includes car parks to which the public have access, whilst unfit to drive through drink or drugs, has a power under Section 4 Road Traffic Act to arrest. The only defence is for the person to prove that there was no likelyhood of him driving whilst he remained unfit to do so.
Like having already booked a taxi to take you home or aranging for someone else to give you a lift?
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