I need some advice on drink drive laws from the STW collective.

Here's the scenario with question to follow.

I travel to the north of Scotland with my bike in the back of the van. I park the van in a local authority owned and run car park near some trails. The car park allows overnight parking.

I leave the van in the carpark and head off on the bike, spending the afternoon on the trails. I arrive back at the van in the evening, have some tea and take a walk to the local pub. I enjoy a few pints and walk back to the van before jumping into my sleeping bag in the back. A good nights sleep and some breakfast and it's back to the trails.

Question: If I was woken up in the night or followed back from the pub by the local police, would I get done for drink driving if I wasn't in the drivers seat? Does there have to be intent to drive, or does me being in the van and in posession of the keys constitute drink driving?

Any advice would be excellent.

Theoretically you could be prosecuted – the offence is not drink driving, rather being drunk in charge of a vehicle. However if you are most obviously sleeping in the back rather than trying to drive you you would be very very unfortunate to meet a copper arsey enough to go through all the necessary paperwork.

Enjoy Golspie, it's brill isn't it 😉

as i understand it, the law is as above – keys in your possession in the vehicle. however, there must be some interpretive provision for camper vans and other live-in vehicles in similar situations. i would have thought you'd be ok… perhaps you could hide the keys outside the vehicle and then you'd be sorted?!

Cheers for the replies so far guys.

nbt – I wasn't actually thinking of Golspie, but definitely yeah 😆

theflatboy – I'm not sure the police would accept that one 😉

though i should be working (on the law, no less) i found this – probably worth a read.

A few years ago at a Christmas works do, one of the guys drove to the restaurant with the intention of not drinking.
Anyway, he ended up absolutely hammered and was told that he should either find somewhere local to stay or get a cab home. So he went out to his car to get a few personal things, was in the process of getting into it when a police officer appeared and arrested him on suspicion of attempted drink driving.

It really wasn't a good night for him – the reason he'd ended up pissed in the first place was because a few of the guys had decided it'd be hilarious to spike his drinks.

Based on that, I reckon if they caught you in the process of getting into the van then it might require some explaining and persuasion on your part.

i slept in my car steamed up and was woken by the police . He told me he should do me with drunk in charge but wasnt going to but made me put the keys behind the front tyre before he left

Maybe the keys outside the van isn't as crazy as I first thought.

The lord advocate or some such person in scotland, managed to get off with a drink driving charge earlier this year because she had they keys in the passenger footwell. So I would hope that you'd be ok. TBH if you're out in the arse end of nowhere I wouldn't lose too much sleep over it.

Based on that, I reckon if they caught you in the process of getting into the van then it might require some explaining and persuasion on your part.

Based on that, set out your sleeping gear before you go out to get hammered!

I've heard of the old "keys outside the car" trick, personally I wouldn't leave keys outside the car but putting them somewhere less than accessible might be advisable.

If you're really serious, drop into the local police station when you arrive in town and explain what you're planning to do.

I really think you'd be very unlucky to get done

Trick I learnt off my brother was to unlock the door, release the bonnet and leave the keys under there overnight while you "slept it off" in the car – nice and easy proof of no intention to drive.

A few years ago a teacher in Wetherby, West Yorkshire was done for drink driving when he went to his car to get school books for marking after having a drink. And a friend was done when found asleep on the back seat of his car.

These all sound ridiculous. I've slept in my car pissed more than once in my younger days. What if i'm in the house, I have a couple of drinks, I go outside to get some beer out of the boot of my car that I bought earlier and the coppers nab me then? Have I really broken the law? I would no more drink and drive than I would go naked skydiving but reading some of the examples above it sounds like there's a possibility this could happen. Surely just being in the house having had a drink but still being in possession of the keys is a criminal offence too then?

The police must surely have to prove beyond a shadow of a doubt that you were intending to drive the car, i.e., if you're not sat in the drivers seat with the engine running then they've not got a leg to stand on.

Would disabling the car be sign enough that you have no intention of driving the car? If so why not just disconnect the battery terminals (As long as it doesnt bugger stereo codes etc).

The police must surely have to prove beyond a shadow of a doubt that you were intending to drive the car, i.e., if you're not sat in the drivers seat with the engine running then they've not got a leg to stand on.

as I said in my post, there's a difference between "drunk in charge" and "driving under the influence". And I suspect "people being arsey" might not technically be an offence but "being bloody stupid and pissing off a copper" is likely to result in you being charged with something…

my brother very nearly got doen for this- went back to his van pissed, started the engine to get the heating going- next thing hes been pulled out the van (and locked out) and taken to the nick – he was bailed in the morning with no shoes miles from his van, which he was locked out of anyway.

Cant quite remember how he got out of it in the end!

I wouldn't risk it. I think there is a specific law that applies to such a situation (sods?)

the law states there must be a realistic chance of driving
this maybe engine running, keys in ignition etc etc
if you were in the rear of the vehicle, asleep in a sleeping bag, no realsitic chance.
i would also use the defence that i had booked overnight camping spot, got my breakfast to eat etc etc
alrthough there would still be nothing to stop the officer arresting you on suspicion.
i would be astounded if you were arrested in your situation, as you were obviously camping for the night
i had an appeal at coutrt some years ago where i caught a lad drunk in his car with his girlfriend, he was arrested, at court he said he had only been sat in the car with the engine running, because he was proposing to his girlfriend, and he didnt want to propose in the house cos his parents were there(it was 0300)
The magistrates smiled, asked if his girlfriend had accepted the proposal,
he said she had, the magistrates smiled, i thought "christ this lad has got off"
then they banned him for 12 Months!
to be fair , he had proposed, but the story re the car was bullshit, they had been on the lash in town and just returned

Endless times I've been camping with my car open and my keys in the ignition for the stereo one quietly, with a beer in one hand and a bacon buttie in the other. I'm sure any sensible cop wouldn't jump on you. I'm sure if they saw you staggering back to your van, they'd probably watch you get inside and go to sleep, but I suppose if you jumped into the drivers seat and fired up the engine for heat that would look dodgy and indeed wouldn't exactly be safe would it – i mean anyone mis-handling the controls IS still a danger to the public even if they didn't intend to drive off/move the car.

samuri,
its up to you(the Defendant) to prove you were not going to drive

A chap at work was charged for being drunk/asleep and in the driver's seat with the keys (I don't remember the details). I'd doubt they could make it stick if you were in a sleeping bag in the back. I'd always hide the keys outside tbh, then there can be no doubt.

Ok, so based on the replies so far, If I lay out my sleeping bag etc before leaving, then ensure when I get back that the keys are out of reach (under bonnet, tyres etc)I should be ok. Oh and buy a battery powered radio so I don't need to turn on the ignition for some music 😛

its up to you(the Defendant) to prove you were not going to drive

That doesn't sound much like our 'innocent till proven guilty' system of law though.
Aha! Google to the rescue.
http://www.independent.co.uk/news/uk/crime/drunk-in-charge-law-is-overturned-598781.html

Or how about you triple-bag someway your key? I personally wouldnt leave my key outside the vehicle.

its up to you(the Defendant) to prove you were not going to drive

So in my example, if I'm sat in my house having had a couple of beers, if we can find a policeman who's feeling beligerant enough, he could knock on my door, say 'you've been drinking and were going to drive your car, you're nicked!' then because I have no proof that I was not going to drive my car then I'm going down….. It's an extreme example but it's no more different than me actually being in the car. I'm still in charge of a vehicle whether I'm sat in the house or rummaging around in my boot.

Edit: Seen Ian's link, that makes a lot more sense. Happy now, it was very shakey ground that one.

Unfortunately Ian's link does not cover the fact that this case was then referred on to the House of Lords, who overturned that decision and held that it is, just as easygirl says, up to the defendant to prove to the court that there was no likelihood of them driving whilst still under the influence.

If it helps to make sense of it, the 'likely to drive' is not part of the offence. The offence is simply being 1) in charge of the vehicle whilst 2) over the limit. There is no 3) and was likely to drive in the offence. Therefore there is no burden on the prosecution to prove 3).

It's an extreme example but it's no more different than me actually being in the car. I'm still in charge of a vehicle whether I'm sat in the house or rummaging around in my boot.

is it really no different? sadly not, in respect to you potentially getting arrested.

Unfortunately Ian's link does not cover the fact that this case was then referred on to the House of Lords, who overturned that decision and held that it is, just as easygirl says, up to the defendant to prove to the court that there was no likelihood of them driving whilst still under the influence.

The offence is simply being 1) in charge of the vehicle whilst 2) over the limit.

I'm always in charge of my vehicle, unless it's been stolen, regardless of whether it's parked 2 miles away and I'm sober in work, or whether I'm sitting in the drivers seat with the engine running and drunk as a skunk. There's no likelyhood of me driving the vehicle while drunk, even if I'm sat in it with the engine running, but how can the law decide what my head was thinking at the time (likelyhood)?

that's insane. The law is an ass.

thegreatape – Member

Unfortunately Ian's link does not cover the fact that this case was then referred on to the House of Lords, who overturned that decision and held that it is, just as easygirl says, up to the defendant to prove to the court that there was no likelihood of them driving whilst still under the influence.

http://www.hmcourts-service.gov.uk/judgmentsfiles/j1594/sheldrake_v_public_prosecutions.htm

Abstract: The DPP appealed against a decision ([2003] EWHC 273, [2004] Q.B. 487) that the reverse burden of proof imposed by the Road Traffic Act 1988 s.5(2) was incompatible with the Human Rights Act 1998 Sch.1 Part I Art.6(2) . The Attorney General referred the question ([2003] EWCA Crim 762, [2003] 3 W.L.R. 1153) of whether the reverse burden imposed on a defendant by the Terrorism Act 2000 s.11(2) was incompatible with Art.6(2). S, the defendant in the road traffic proceedings, and A, the defendant in the anti-terrorism proceedings, contended that s.5(2) of the 1988 Act and s.11(2) of the 2000 Act respectively infringed the presumption of innocence and that those sections should be read in accordance with the Human Rights Act 1998 s.3 to impose an evidential and not a legal burden. S contended that s.5(1) of the 1988 Act was aimed at preventing a person from driving while unfit to drink so that the likelihood of a person driving was the gravamen of the offence. Accordingly, the effect of s.5(2) was to impose on the defendant a burden to disprove an important ingredient of the offence which, if not disproved, would be presumed against him. This unjustifiably infringed the presumption of innocence. Further, a presumption could only be justified if the facts presumed flowed inexorably from the facts proved, or if there were a rational connection between the fact proved and the fact presumed. In the instant case the likelihood of S's driving did not flow inexorably from his being drunk and in charge of a car in a public place, nor was there a rational connection between the latter fact and the likelihood of his driving.

Held, allowing the appeal by the DPP and answering the questions referred (Lord Rodger of Earlsferry and Lord Carswell dissenting in part), that the burden placed on a defendant by s.5(2) was not beyond reasonable limits or in any way arbitrary. S's conviction did not rest on the presumption that he was likely to drive, DPP v Watkins [1989] Q.B. 821 DC applied. Proof of being in charge of a vehicle did not necessitate proof of a likelihood of the defendant driving the vehicle. Accordingly, to hold that the effect of s.5(2) was to impose merely an evidential burden would be to require the prosecution to prove a matter dehors the offence itself. In respect of the 2000 Act, Parliament clearly intended that s.11(2) should place a legal burden on the defendant. Moreover, s.11(2) was directed to a legitimate end, namely deterring people from becoming members of and participating in the activities of proscribed terrorist organisations. The crucial question was whether that was a proportionate and justifiable response to a legitimate problem. The scope of the word "profess" within s.11(1) was such that a person who was innocent of blameworthy conduct could fall within s.11(1). There would be a clear breach of the presumption of innocence if such a person could exonerate himself only by establishing a defence on the balance of probabilities. It was the duty of the courts to protect defendants against such risk. Furthermore, it might be all but impossible for a defendant to show that he had not taken part in the activities of the organisation at any time while it was proscribed. If s.11(2) imposed a legal burden there would be no room left for the courts to exercise a discretion. In addition, conviction under s.11(1) could result in a sentence of 10 years' imprisonment. In view of all these considerations the burden imposed by s.11(2) in proving that the organisation was not proscribed when a person became a member was not a proportionate or justifiable response to legitimate security concerns, Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 A.C. 557, R. v Lambert (Steven) [2001] UKHL 37, [2002] 2 A.C. 545 and R. v Johnstone (Robert Alexander) [2003] UKHL 28, [2003] 1 W.L.R. 1736 considered, R. v Carass (Clive Louden) [2001] EWCA Crim 2845, [2002] 1 W.L.R. 1714 doubted. (~Per~ Lords Rodger and Carswell) The provisions of s.11(2) of the 2000 Act imposed a legal burden. However, the measure was justifiable and proportionate to the aims it sought to achieve.

🙂

edit – beat me to it, nbt!

Samuri – if you're inside your house you aren't in charge of your vehicle as far as this offence is concerned. You can't get done for it in the circumstances you describe.

Sorry for multiple posts, trying to do this on my phone.

aaah I see now. it's like that film with Tom Cruise where they arrest people before they do something. Minority Report. Only at least in that there was a reasonable liklihood you *were* going to commit the crime in question. It seems in Britain there merely needs to exist the option to commit a crime and bob's your uncle you're in the clink. Would the police's time not be better employed catching people who are actually criminals rather than those who could be?

I have a full set of kitchen knives at home, I could, should the desire take me, stab some people with them. Best arrest me now officer, nope, I have no proof that I wasn't going to stab anyone. I'm as good as guilty.

coffeeking

As above, as far as this law is concerned, you aren't always in charge of your car, so don't worry.

Cheers for the correction greatape.

Nahh they should remove the likelyhood of you having a likelyhood of committing crime, ban all alcohol. And cars. None of you can be trusted!

thegreatape – yes but I am in charge of my car when I'm sat with the stereo on while camping, I dont think I should be considered a risk to society and locked up just because Im sat near my car with the stereo on and a beer in my hand. It would be a disgrace if they just assumed you were likely to. Its like arresting people outside a department store for having bought a knife – sure one of them MAY kill their wife with it, but the majority do not so why lock them up?

what Zulu-Eleven said.

having the keys on you is enough as i understand it.

youll need them to get into the van though.

personally i wouldnt worry, the chances of being stopped in the first place are quite low.

if you wanted to make sure:

I wouldnt carry the keys from the pub to the van on the offchance you were stopped on the walk.

lock the van up, then hide the keys near it.

ontop of a coilover suspension turret works quite well as you cant see them. you have to know where to reach to get them.

ontop of the exhaust muffler?

second, once in the van, seperate yourself from the keys.

if your "living" in the back, put them in the glovebox?

my 2ps at least, but i think its very dependant on the copper.
if its a car i could understand them stopping you. but a van, with a sleeping bag and matress in it?

less cool if they tried it on for that.