Drink Driving, Attempting to drive, In Charge

If you believe that raising a defence that you weren’t driving is likely to see you avoid conviction in a drink driving or drug driving related offence, this defence may not be as relevant as you may think.

In many cases, there must be proof of you having driven or attempted to drive to secure a conviction. That is except for the offence of failing to provide a specimen. The prosecution merely need to demonstrate that the police had a valid reason to require a specimen and that you failed to provide the specimen without reasonable excuse. The valid reason can be a suspicion of having driven or being in an accident.

Aside from this offence, there are a number of scenarios where you can be charged for being ‘in charge’ of a motor vehicle, driving or attempting to drive a motor vehicle so the police do not have to have actually seen you drive to secure a conviction for drink driving.

If you drive with any excess alcohol in your urine, blood or on your breath this will result in a prosecution for drink driving. Penalties for this offence are harsh and you could be facing up to six months’ imprisonment, a community order (usually unpaid work) or an unlimited fine. You will also be looking at a mandatory minimum driving disqualification of one year.

If you are a second-time offender, the situation becomes a lot bleaker for you. That mandatory ban that just made you wince deep inside rises to a staggering minimum of three years. There is no maximum length of disqualification.

If you try to argue that you ‘never made it out the parking lot’ or ‘didn’t really drive anywhere’. The law also caters for any attempt to move your vehicle whether you are successful or not. That does mean, that even if you merely turned your ignition on while under the influence, you may attract significant criminal liability. And yes, even if your car is an old rusty wagon from the 1900’s and just won’t start, you still may be charged! And in today’s CCTV littered world that we live in, the chances of this are very high.

If you so happen to be convicted of being drunk in charge, you could be looking at a prison sentence of up to six weeks and / or 10 points endorsed on your licence (a hefty trade-off for those the sake of a night out on the last, don’t you think?)

Unfortunately, the law does not provide for a clear-cut test as to what constitutes ‘drunk in charge’ of a motor vehicle. Therefore, great importance will be placed on the following factual issues:

• Where your car was;
• Where the keys were;
• Where you were; and
• If the car was drivable.

There are two defences to being drunk in charge depending on whether the prosecution relates to being in charge whilst unfit or over the limit, that are actually written into the law known as “statutory defences”.

Section 4

The defendant must prove that it was more likely than not that he would not have driven so long as he remained unfit to do so in which case, he is not considered to be in charge.

Section 5

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.

We will need to obtain evidence in support of the statutory defence if this is to be raised. This can consist of text messages you may have sent to friends or family advising them of your plans to sleep in the car or wait for a lift etc. We also tend to look at corroborative statements from others who may have known of your plans.

Proof of driving, attempting to drive or being in charge of a vehicle certainly does feature as a common issue in many of our defended drink and drug related cases. However, we also have a plethora of other technical legal defence strategies that lead to a phenomenally high level of success in achieving a full acquittal to any charges. In 2016 we successfully defended 95% of our drink and drug related charges.