It is an offence to be in charge of a motor vehicle while over the legal alcohol limit. For a conviction under this section, it is not necessary for the prosecution to prove that you were driving or attempting to drive. This offence can be committed where the vehicle is stationary and in circumstances where there is no immediate intention to drive. The offence usually arises when the police find someone sitting or sleeping within a parked vehicle after having consumed alcohol.

It is also an offence to be in charge of a motor vehicle while under the influence of drugs. The penalties are similar for both.

Penalties

The penalties for being drunk in charge of a motor vehicle are slightly different to those of drink driving and the court will impose a fine and Discretionary disqualification or fine and 10 penalty points in exceptional cases

Drunk in Charge (Section 5(1)(b), Road Traffic Act 1988)

Being in charge is not legally defined and so each case will depend on its own unique set of facts and circumstances. A person is in charge if they have some degree of control over the motor vehicle. In assessing whether you are in control of the vehicle and if that amounts to being in charge the courts will consider all the circumstances including where you were inside the vehicle, what you were doing, where the keys were and whether there is any other evidence or circumstances which might show intention to take control of the vehicle.

Legal Limits for Alcohol

The offence is committed if a driver is over the limit and in order to obtain a conviction for Drunk in Charge, the prosecution must prove that the prescribed limit has been exceeded. The amount of alcohol can be measured in breath, blood, or urine. The prescribed limits are as follows:

22 microgrammes of alcohol in 100 ml of breath 50 milligrammes of alcohol in 100ml of blood 67 milligrammes of alcohol in 100ml of urine

Prosecuting Drunk in Charge Cases

To secure a conviction for being Drunk in Charge of a motor vehicle the prosecution must prove that you were in charge of the vehicle at the relevant time, you were over the legal limit for alcohol in either breath, blood or urine; and that your vehicle was on a road or public place. The prosecution does not have to prove that you had been driving or were attempting to drive. Nor does the prosecution have to prove that you were going to drive.

Defence To Being Drunk In Charge

The most common defence to being drunk in charge is that there was no intention or likelihood of driving whist under the influence of alcohol. Accordingly, it will be necessary to demonstrate that the offender would not have driven the vehicle at any time while the alcohol in their system remained above the legal limit.

The onus is on the defence to prove, on the balance of probabilities, that there was no likelihood of driving while the proportion of alcohol exceeded the prescribed legal limit. Often it will be necessary to obtain expert evidence, in the form of a toxicology report, to show when the level of alcohol would have fallen below the legal limit.

Another potential defence, which is quite common, is that the offence occurred on private property and not on a road or other public place. Such a defence may be available if someone is sleeping off the effects of alcohol in a car which is parked on a private road or driveway to which the public do not have access. Generally, a public place is any area to which the public have access without having to overcome physical obstacles such as gates or ignoring notices prohibiting entry.

If you have been charged in relation to being drunk in charge within the Highlands and Islands, contact our office for advice on your options in defending this charge.