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Enough evidence to say that he would have driven if the attendants hadn’t turned up, and nothing at all to prove that he wouldn’t.
I guess it depends where the keys where etc. Thats where good lawyers to argue the legalities comes in I think (sadly I reckon a really good/expensive lawyer could get someone off when pissed out of their heads they mowed down a bunch of schoolkids and nuns or, more importantly, a cyclist).
I did know about the drunk in charge scenario so I would go for (assuming I wasnt so pissed not to think of it) putting my keys somewhere where hopefully it would be obvious I wasnt going to drive eg in my car the boot but if someone kicked off and wanted me out then I think I would probably grab them to lock the car.
The still being drunk morning after is an scenario which makes me wonder. Given my experience with a drunk driver I do try err to on the side of caution however many beers I have had(mostly work from home and the only day in the office is for a pint for which I deliberately either use the bus or ride on a sustrans offroad track for and dont drink days where I know I will be driving before lunch and heavily not at all) and in this scenario how could I prove it?
Again from the scenario given the OP has my sympathy which isnt something I would extend to someone I thought was going to drink drive.
So by the letter of the law if I leave my car on the road outside my house and go out for a few drinks and take my house keys with me which also has my car key on the fob, I am "drunk in charge" at anything over 1.5 pints?
If so then the law is, indeed, an ass.
I'd have fought this with every fibre of my being.
epicsteve
Member
If the blood alcohol level was high enough the plod might have taken the view that it was likely you’d have driven the car while still over the limit (i.e. in the morning after your sleep in the car).
AFAIK they're not allowed to charge you for things you might or might not do tomorrow morning. Otherwise they could arrest every drunk that owns a car.
Just one question.... did the OP give a breath sample?
Reason I ask is that there are circumstances where the suspected offender fails to give a breath test and is then prosecuted for failing to provide. As long as at the time the sample was required (demanded) there was reasonable suspicion that the person was or had been driving, or was drunk in charge, then the offence of refusing was complete.
If you give a sample when requested, then no matter what the reading, yu can then go about proving that you weren't driving or in charge etc. If however you refuse, the penalty is for refusing. Whether or not you had been driving or were in charge becomes irrelevant, as long as the requirement to provide was based on reasonable suspicion. the penalty for refusing is the same as the penalty for drink driving.
IANAL but if the point of the offense being committed was him in the car park then there's no evidence (needs failed breath test / blood / urine sample) he was over the drink drive limit at that exact time.
Being over the limit some time after the alleged offense occurs is not sufficient to prove you were over the limit at the time of the offense.
The opinions of two untrained parking attendants are irrelevant. There are plenty of other things that can cause the same or similar behaviour they observed - concussion / hypoglycemia etc.
As I said the point where your solicitor was confused was the point where you needed a different one.
Being over the limit some time after the alleged offense occurs is not sufficient to prove you were over the limit at the time of the offense.
IIRC There is a method the cops can use to do this - some sort of "countback" that extrapolates your BAC at the time of the offense from your BAC now. Rarely used tho
So by the letter of the law if I leave my car on the road outside my house and go out for a few drinks and take my house keys with me which also has my car key on the fob, I am “drunk in charge” at anything over 1.5 pints?
Or, it seems, if I’d gone to the car to get something last night after I’d had a few glasses of wine. The car is parked on the street.
Or, it seems, if I’d gone to the car to get something last night after I’d had a few glasses of wine. The car is parked on the street.
I've done this many times!
Does seem mad doesn't it. So would a defence be:
Blip to open car from a distance.
Put keys down on pavement
Get stuff from car
Return to key and lock
Walk away
- I'd argue that shows clarity of thought and absence of intent. As long as no one nicks your keys in the meantime.
Put keys down on pavement
The same petty police person would do you for littering as well.
Or, it seems, if I’d gone to the car to get something last night after I’d had a few glasses of wine. The car is parked on the street.
I’ve done this many times!
or even if it was on your drive with no gates/gates open according to an earlier post!
crackers.
I'm guessing that the problem in the OP's case was that walking a mile from the car is evidence of no intention to drive at that time and telling the car park guy he wanted to leave the car and had no intention to drive at that time but he had no proof that he wasn't planning to drive when he got in the car with the keys and fell asleep.
So by the letter of the law if I leave my car on the road outside my house and go out for a few drinks and take my house keys with me which also has my car key on the fob, I am “drunk in charge” at anything over 1.5 pints?
Not really no. Because you are at the pub and your car is at home.
If you went in sat in your car when you got home, then yes.
Scary, I'd never heard of this law, seems it applies in Scotland too.
what if you have a shitty Renault with the key-less entry credit card.
You have been to the pub and left the car at home sensibly as you were having a few.
As you walk to within 50m of your car it unlocks and the interior light comes on, and by chance there is a Policeperson walking on the other side of the road who hears the locks disengage.
Boom. In charge of vehicle whilst over ther DD limit
Although as its a Renault the keyless entry system probably stopped working 8 mths after it left the factory
Don’t take the car keys/card if you aren’t driving ?
Scary, I’d never heard of this law, seems it applies in Scotland too.
It has been the law since the breathalyser was introduced (if not before). It is normally applied with common sense - e.g. despite many people with camper vans making dramatic internet posts about it, I’ve never heard of anyone being charged when in the back of camper parked somewhere sensible. Normally it is used for the car that is found somewhere odd with the driver asleep at the wheel but no proof he drove in that condition or the person so pissed they are struggling to get in the car and the police don’t want to risk them actually trying to drive. You have at least three stages for common sense to filter out the “genuinely no intent to drive” - the police officers, the prosecutor, the court. There are many ways you can make it seem like you are not going to drive:
- don’t sit in the drivers seat (the peddles and s/wheel make it the least comfortable place to try and get a sleep)
- don’t put the keys in the ignition (and starting the ignition to keep warm is even worse)
- being in a sleeping bag/duvet shows you planned a sleep rather than fell asleep before you had a chance to drive
- being parked somewhere sensible, that looks like you are there for a while not like you dumped it there
- being straightforward with the police and not evasive (if you refuse a breath sample you will have committed a different offence even if you had a defence for the original one).
- telling others your plans, who could then be called to give evidence that you said you were going to sleep in the car, climb a hill and drive home at 5pm the following day. Better still if you send a text or similar which is “traceable”
- if you are popping out to get something from the car on the driveway leaving your house open, avoiding putting shoes or jackets on, only getting stuff out the car not climbing in etc all send provide context
- if you get as far as being cautioned and charged give a sensible response that tells them what your plans were - this may be one of the times when “no comment” is not the best policy.
The police and prosecutor both have plenty of work without dealing with complicated Drunk in Charge cases where a reasonably credible defence is being offered. Even the most officious or arrogant are usually more interested in dealing with people who pose a real threat than those who have shown the sense to walk away from a car.
I don’t want to suggest the OP is misleading us but I think there is a missing part to the story that meant his lawyer advised a guilty plea was his best course of action. Perhaps he refused a breath sample, or he did start the car, or he said something under caution or to the parking staff which suggested something different... ...if it was a simple “drunk in charge” offence the sentencing judge had the option to impose points not a ban which contradicts the suggestion that they said they “had no choice”.
The OP has now done his Drink Driver Rehab course (which will get him his license back 3 months quicker) but one of the downsides of these group courses is, like speed awareness course, it is a group of people who all believe the system was stacked against them and they were just unlucky. Being cynical the fact the OP is here (or on a more relevant site) with his warning after the course not after being stopped, or even after conviction but before the course, only makes me dubious that the version of events presented is the “really unlucky” one the course warned him about rather than perhaps reality.
Of course it’s also possible that the solicitor said he might be able to get him off at trial but there were no promises, the legal fees would be much higher and the fine etc would also be worse if he lost. In which case if the OP is one of the very large section of society who wouldn’t get legal aid to support this but who doesn’t have the cash to pay sitting around either, then I have much more sympathy for his (potentially ill advised or incorrect) guilty plea. The moral of the story is not that we need to worry about being caught drunk in charge when we get the wallet from our car - but that we need to worry about the state of criminal legal aid.
– being in a sleeping bag/duvet shows you planned a sleep rather than fell asleep before you had a chance to drive
Didn't help my brother. He still got done for DiC despite being asleep, in a sleeping bag, in the back seat of his car. Had the car keys in his trouser pocket.
If you need something from a car parked on the road and you've had a drink the advice I was given was to unlock/open one of the the passenger doors (this followed a spate of shift workers getting breathalysed / done for DiC as they left their houses at ~5am ).
Tillydog - I’m not saying that a sleeping bag in the backseat is a surefire way, and I’m not going to second guess which other factors did or did not apply in your brother’s case. Presumably he somehow failed to convince the court that he was not going to drive until sober. Perhaps that is because of what he did or did not tell the police at the time, or because whatever evidence he presented in court was not viewed as credible or reliable. People do find themselves before the courts in these sort of circumstances and do manage to present credible defences. Obviously not everyone who sleeps on the back seat drunk is going to be sober when they wake up in the morning and put the keys in the ignition though.
In somafunks example above the person refused to provide a sample - thats an immediate offence and no intent to drive is needed to prove it. Merely refusing to provide is enough.
I wonder how many others are the same?
Obviously not everyone who sleeps on the back seat drunk is going to be sober when they wake up in the morning and put the keys in the ignition though.
That's a fair assumption but how can you be charged with an offence that you haven't actually committed?
Greybeard. In my case I had to prove I wasn’t going to drive and as I was so far over the limit it was a good case for the cps to prosecute saying I could have done if not for the intervention of the carpark attendant.
I completely accept the decision, but I don’t like the fact I had to prove I wasn’t going to do something. I always thought it was up to them to prove that I was.
This is on my record for 11 years and I can’t hire a vehicle for at least 5.
Lost my job from losing licence, my house, can’t get another vehicle as no money, can’t earn money as no vehicle, can get insurance and car if had money but can’t start up again with a hire van, etc,etc
Let this be a warning to anyone.
I know many people will be very derogatory and high and mighty, but how many have had a drink with someone then bought them a drink back and driven home? Millions.
How many have slept in a car with keys on them, millions.
I might have saved a few through talking about my experience.
Poly. Thank you for your input. I did give a breath test.
If you want to put something to me in person I will answer all of your questions.
I’m sorry. You seem to have gone into some depth and I will answer questions if you need to put them to me by PM rather than just on here.
If there is anything in particular I can answer.
Same for anyone else, if I can help via a pm.
The edit function is a farce.
Remember to read a text before sending....
Regards
Mark
I was a bit quick to reply to this Poly and I apologise.
If you need something from a car parked on the road and you’ve had a drink the advice I was given was to unlock/open one of the the passenger doors.
Better still , just peel the top of the door down, or jemmy the door open. Even if someone sees you and calls the police , the chances of them coming out will be greatly reduced as they will think you are just a thieving scally 😉
On a serious note , I think I will start removing the van key from my house keys when I go out on the piss
I'm gonna swap car keys with my mate next time i go camp/drinking. That'll sort it.
Just put them all in a bowl in the middle of the group 😉
That's a different style of mountain mauhem than I'm used to.
Greybeard. In my case I had to prove I wasn’t going to drive and as I was so far over the limit it was a good case for the cps to prosecute saying I could have done if not for the intervention of the carpark attendant.
Thanks for the clarification, Mark.
I don’t like the fact I had to prove I wasn’t going to do something. I always thought it was up to them to prove that I was.
I understand how you feel, it does effectively reverse the proof. They had to prove that you were in charge of the vehicle and over the limit, which they did, and to benefit from the defence you would have had to prove the negative.
It's something which a lot of people (who would never consider driving if over the limit) could be caught by, so that for posting, and I'm sorry it's had such an effect on your life.
Very good idea.
The reason I started the thread was to educate as I don’t think most people think about the silly little things that can get you done for being over the limit.
I am now the one in the pub watching for people having that second pint...