15/09/2023
Finding yourself in a situation where you are 'in charge' of a vehicle whilst over the prescribed alcohol limit can be a daunting and confusing experience. Many people mistakenly believe that if they aren't actively driving, they are safe from prosecution. However, UK law is clear: simply being 'in charge' of a vehicle while intoxicated can lead to severe penalties, including hefty fines, penalty points, and even a driving ban. This article aims to demystify the offence, explore what 'in charge' truly means, and, crucially, illuminate the powerful defence available under Section 5(2) of the Road Traffic Act.
Understanding the 'Drunk in Charge' Offence
The offence of being 'drunk in charge' of a motor vehicle is covered by Section 4(2) of the Road Traffic Act 1988. Unlike drink driving, which requires the vehicle to be in motion, this offence can be committed even if the car is stationary and the engine is off. The core element is that you are deemed to be 'in charge' of the vehicle while the proportion of alcohol in your breath, blood, or urine exceeds the prescribed limit.
What Constitutes 'In Charge'?
The definition of 'in charge' is broad and often depends on the specific circumstances. There is no single, definitive checklist, but courts will consider several factors, including:
- Proximity to the vehicle: Are you inside the car, or merely in its vicinity?
- Possession of keys: Do you have the car keys on your person or readily accessible?
- Intention to drive: While not essential for the prosecution to prove, a clear intention to drive strengthens the 'in charge' argument.
- Accessibility of the vehicle: Is the car locked or unlocked? Is it easy for you to enter and operate?
- Location of the vehicle: Is it on a public road, in a car park, or on private land?
For example, if you are found asleep in the driver's seat of your car in a pub car park with the keys in your pocket, even if the engine is off, you are highly likely to be considered 'in charge'. The law seeks to prevent potential drunk driving by criminalising situations where a person, while intoxicated, has the immediate ability to drive.
The Serious Consequences of a Conviction
A conviction for being 'drunk in charge' carries significant penalties. These can include:
- A fine of up to £2,500.
- 10 penalty points on your driving licence.
- A discretionary driving ban.
- Up to 3 months in prison (though this is less common for a first offence without aggravating factors).
- A criminal record, which can impact employment and travel.
Given these serious ramifications, understanding and utilising the available legal defences is paramount.
The Section 5(2) Defence: Your Legal Recourse
If you find yourself arrested for being drunk in charge, and it's generally accepted that you were indeed 'in charge' of the vehicle, there is a crucial defence available under Section 5(2) of the Road Traffic Act 1988. This section states that a person is not guilty if they can prove that “there was no likelihood of them driving the vehicle whilst the proportion of alcohol in their breath, blood or urine remained above the limit.”
This defence places the burden of proof on the defendant, meaning you must satisfy the Court that this condition was met. It's a two-stage process, and both elements must be successfully proven.
Stage 1: Proving No Likelihood of Driving
The first hurdle is to demonstrate to the Court that there was no real risk that you would drive the vehicle while still over the legal alcohol limit. This isn't about what you *intended* to do when sober, but rather what the likelihood was at the time of the incident, considering your intoxicated state.
It’s vital to bear in mind the case of Sheldrake –v- DPP. This landmark case highlighted that a defendant's intentions may change whilst drunk. While a sober individual might have no intention of driving, once intoxicated, their judgment and intentions can become impaired and shift. Therefore, merely stating you had no intention to drive might not be enough. You need concrete evidence to support this claim.
To satisfy the Court on this point, you might present evidence such as:
- Pre-arranged alternative transport: Proof of a booked taxi, lift from a sober friend, or a hotel reservation nearby.
- Witness statements: Testimony from friends, family, or pub staff confirming your plans not to drive.
- Vehicle's condition: Evidence that the car was unroadworthy or had a flat tyre, making immediate driving impossible.
- CCTV footage: From the pub car park or surrounding area, showing you making arrangements or behaving in a way consistent with not driving.
- Location of keys: If the keys were not in the ignition or were given to a sober person.
Stage 2: Proving You Would Be Under the Limit to Drive
The second stage of the defence requires you to prove that by the time you *would* have driven the vehicle, you would have been under the prescribed alcohol limit. This is often the more complex part of the defence and typically requires expert evidence.
Unless it is blindingly obvious to a lay person that you would have been under the limit by the time you intended to drive (e.g., you were only marginally over the limit and intended to drive many hours later), expert toxicology evidence will usually be required. A toxicologist can provide a scientific assessment of how your body metabolises alcohol, estimating when your alcohol level would have fallen below the legal limit based on your individual characteristics and the amount of alcohol consumed.
The case of DPP v Frost provides excellent guidance on this. The summary states: “If a defendant when apprehended in charge of a vehicle is only marginally above the limit and persuades the court that he would not have driven for a long period thereafter, then the court may properly find it to be obvious that the defence has been made out; but if a defendant when apprehended in charge of a vehicle is well over the limit and the court is satisfied that he would probably have driven in the space of a few hours, then it will not be at all obvious that the defence has been made out. In such a case the court cannot rely on general knowledge or commonsense or personal experience but will require clear, cogent and reliable evidence as to the relative rate at which the particular defendant would have been likely to lose the alcohol found on testing to have been present in his body.”
This quote underscores the need for clear, cogent, and reliable evidence, especially if you were significantly over the limit or intended to drive relatively soon.
Applying the Defence: The Mr X Scenario
Let's consider the example of Mr X to illustrate how this defence might be applied in practice:
Mr X is being taken to Court for being drunk whilst in charge of a car. It is agreed that he was drunk (twice the legal limit) and that he was 'in charge' of his car, having been found asleep in the driver's seat with the keys in his possession in a pub car park.
However, Mr X decides to argue the defence under s.5(2). At the first hearing, he enters a not guilty plea, and the case is adjourned for a trial in three months, allowing time to prepare the defence.
Preparing Mr X's Defence:
Proving No Likelihood of Driving (Stage 1):
Mr X needs to prove there was no real risk he would drive the car that evening. His solicitor would gather evidence:
- Statements from his friends confirming their plans for Mr X to get a taxi home.
- A record of the taxi booking, showing a pre-arranged pick-up.
- CCTV footage from the pub car park, if available, showing him and his friends waiting for a taxi or making arrangements.
- Evidence that he had explicitly stated he was not driving.
This collective evidence aims to convince the Court that, despite his intoxication, his established intention and arrangements meant he posed no likelihood of driving that night.
Proving He Would Be Under the Limit (Stage 2):
Mr X states he would not have driven until he came to collect his car the following morning when the pub reopened at 10 am. To support this, his legal team would commission an expert toxicologist report. This report would analyse his alcohol consumption, body weight, metabolism rate, and the time he was apprehended. The toxicologist would then provide an opinion on whether, by 10 am the next day, Mr X's alcohol level would have fallen below the legal limit.
If Mr X can successfully prove both parts of this defence to the Court, he would be found not guilty of being drunk in charge.
Key Elements for a Successful Defence
A robust defence relies on meticulous preparation and compelling evidence. Here’s a summary of what you need to focus on:
| Defence Stage | What You Must Prove | Key Considerations & Evidence |
|---|---|---|
| No Likelihood of Driving | There was no real risk that you would drive the vehicle whilst over the limit. |
|
| Under the Limit to Drive | By the time you *would* have driven the vehicle, you would have been under the legal alcohol limit. |
|
Frequently Asked Questions About Drunk in Charge
Q: Can I sleep in my car if I've been drinking?
A: While it might seem like a responsible alternative to drink driving, sleeping in your car after consuming alcohol can still lead to a 'drunk in charge' charge if you are deemed to have the potential to drive. It's generally safer to arrange alternative transport or accommodation than to sleep in your vehicle.
Q: What if I just started the engine to charge my phone or keep warm?
A: Starting the engine, even for seemingly innocuous reasons like charging a phone or using the heater, can strengthen the prosecution's case that you were 'in charge' and had the immediate capability to drive. It's a risky action if you are over the limit.
Q: How is 'in charge' legally defined?
A: There isn't a precise statutory definition. Courts look at factors such as proximity to the vehicle, possession of keys, and the practical ability to drive. The closer you are to being able to drive (e.g., in the driver's seat with keys in the ignition), the more likely you are to be considered 'in charge'.
Q: What are the maximum penalties for being 'drunk in charge'?
A: The maximum penalties include a fine of up to £2,500, 10 penalty points, a discretionary driving disqualification, and a custodial sentence of up to 3 months. The actual penalty will depend on the specifics of the case and your previous driving record.
Q: Do I need a solicitor if I'm charged with 'drunk in charge'?
A: Absolutely. The legal complexities of the 'drunk in charge' offence and the two-stage s.5(2) defence mean that expert legal representation is highly recommended. A specialist solicitor can help gather evidence, instruct a toxicologist, and present your case effectively to the Court, significantly increasing your chances of a successful outcome.
Conclusion
The offence of being 'drunk in charge' of a vehicle is a serious matter in the UK, with potentially life-altering consequences for your driving licence and personal record. However, it is crucial to remember that a charge is not automatically a conviction. The Section 5(2) defence provides a vital opportunity to challenge the accusation, provided you can demonstrate that there was no likelihood of you driving while over the limit, and that by the time you would have driven, you would have been sober. Navigating this defence successfully requires careful preparation, robust evidence, and often, the invaluable assistance of legal professionals and expert toxicologists. If you find yourself in this predicament, do not hesitate to seek professional legal advice to protect your rights and your future on the road.
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