Drunk in charge

In some parts of the world a drink driving conviction is reasonably easy to escape, for example in Texas the police can only ask you to provide a specimen of breath for analysis but if you refuse there's nothing they can do about it! How easy is it to escape a drink driving conviction there, uh?

In the UK, sadly, it is quite different. If the British police suspect you of drink driving they can require you to take a breath test.  Failure to co-operate is a criminal offence and the punishment is as harsh as if you had been convicted of drink driving.  In fact in the UK you don't even have to be driving to get yourself convicted of a drink driving offence! Being drunk in charge of a motor vehicle is an offence in the UK, which can be just as serious as drink driving itself.

At first glance it appears that everybody in the UK who owns a car and drinks alcohol has been drunk in charge at some point in their lives! Because the offence is simple, if you are unfit to drive and you are in charge of a motor vehicle then you commit an offence. So, potentially if you are sitting in your living room after a few drinks and your car is outside then you have committed the offence.

Now that would be entirely silly, which is why there is a defence that protects innocent home-owning drunks from being guilty of criminal offences while minding their own business. The defence is simple, you are not guilty of being drunk in charge if there is no realistic prospect of you driving the motor vehicle. Clearly if you are at home indoors the police cannot overcome the defence and so you are not guilty.

Problems arise though when people have a bit to drink and decide to sleep it off in their cars. It's usually cold when this happens - because it's night time and you are drunk - so you switch on the engine to warm the car up. You may have no intention of driving, but if the police find you they will arrest you for being drunk in charge and you are very likely to be taken to court.

Many people think that they will be okay if they don't switch the engine on and instead curl up on the back or passenger seat. But, the police will still try to get you. Because they know that come the morning you will get into the driver's seat and drive home, at which point you will probably still be over the drink driving limit. The police will tell the court that you should be convicted because you were in charge, you were drunk and there was a high likelihood of your driving while still over the drink driving limit.

The leading case on this point involves a very drunk man who returned to his car. He attempted to get into the passenger seat but was so drunk that he simply could not open the door. A few hours later he was found sleeping propped against the car's rear wheel, keys on the floor next to him. He argued in court that he was not guilty of being drunk in charge because he was so drunk that he was incapable of standing, let alone driving and thus there was no likelihood of him driving the car. The court agreed with him; however, they concluded that it was probable that he would have woken up, still over the drink driving limit, and driven home. He was convicted. This teaches us two things:

1. If you are going to sleep in your car make sure you call a sober friend to pick you up in the morning before you go to sleep so nobody can say you will wake up and drive; and 
2. get a decent drink driving solicitor!

The penalty for being drunk in charge is currently 3-months imprisonment and a fine of up to £2,500. The court must consider a driving ban but if it chooses not to ban you then it must impose 10 penalty points, which is sufficient to cause a totting up driving ban for most people.

Special Reasons

When a defendant is convicted of drink driving the court is required by law to disqualify him from driving for a minimum of 12-months.  There is no discretion, the driving ban must be imposed.

Special reasons arguments are a legal device that turns the obligatory driving ban into a discretionary driving ban.  In other words, if the special reasons argument is successful the court can decide whether or not to impose a driving ban.  If courts find special reasons exist then more often than not they will not ban the defendant from driving.

A common special reason is "emergency", this is intended for situations where life or limb is at risk.  The typical situation might be a specialist doctor or surgeon rushing to perform a life-saving treatment that nobody else can perform.

Today, we successfully argued that a plumber travelling to stop sewage leaking into a home was an emergency capable of being a special reason.

Unfortunately, the client did not keep his licence on this occasion as the court decided that he had not fully explored other ways of getting to the emergency other than driving while over the drink driving limit.  Had he done so, it appears that he would have kept his driving licence.

This just goes to show that "emergency" is not a fixed term and that there may be room for further development of the law on this point.