Recent case: drunk in charge

Sleeping a night out off in your car can cause you a lot of trouble

Our client, Alun, was accused of being drunk in charge ofa motor vehicle after he was found sleeping in his car at 8am. Alun had no qualms about admitting he had been drinking and was likely to be over the drink driving limit. He was arrested and at the police station provided a specimen that showed he had 45μg of alcohol in 100ml of breath – he was thus 10μg over the drink driving limit.

Alun explained to police that he had been out at various clubs and had taken a taxi home. He said that he had attempted to show the police officer the taxi receipt but the officer refused to look at it. Alun was locked out of his home as he had lost his front door key while out and so decided to sleep in his car – when searched no house key was found but Alun was directly outside his own front door.

Despite him being a few feet away from his home, the police decided to charge Alun with being drunk in charge. So, he called the London Drink Driving Solicitor for help. He told us that he attempted to call his brother in the night to get his spare key but his brother did not answer – telephone records to prove this were produced. Alun told us that his brother would have brought the keys to him, which is exactly what happened when the police released him. We advised him that he had a full defence to the allegation as there was no likelihood of his driving – this is known as the “statutory defence”.

We prepared Alun’s case by obtaining expert evidence to show when Alun would have fallen below the drink driving limit and witness statements from his partner, who had been away on holiday, to show when she would have arrived home. We also took a statement from Alun’s brother confirming that he had received two missed calls and some WhatsApp messages from his brother while he had slept. Alun’s brother said that had he answered the calls he would have taken the keys to Alun and that is what he did do when Alun called him after being released by the police.

We also obtained copies of the police interview with Alun and prepared a transcript to show that the comments Alun made in interview did not reflect the summary prepared by the police.

Once everything was prepared, we wrote to the prosecution serving our evidence upon them and asking that they discontinue the case against Alun. They reviewed the material and discontinued the prosecution the week before Alun’s trial was due to take place.

Alun was very pleased and said that the result as not a surprised as, “… I was very confident that we were well prepared”.

If you require expert legal advice for being drunk in charge ofany other offence involving alcohol and motor vehicles, then do not hesitate to call London Drink Driving Solicitor on 020 8242 4440.

Case report: successful submissions to the prosecution

EG was found drinking at the wheel of her car

A few weeks ago, Nick Diable of London Drink Driving Solicitor was instructed to represent a woman, who we’ll call EG, accused of drink driving.

The allegation was that on a recent Friday night she was drink driving her car while she had 64mg of alcohol in 100ml of breath.

Nick met EG before the first hearing took place – we always try to meet our clients well before court as that gives us the best opportunity to understand their account and gives them a chance to meet and ask questions of the solicitor who will represent them in court.  EG’s account was that she had driven to a night out with some friends.  The friends had been drinking during the journey and, although EG had consumed alcohol prior to driving she did not believe she would have been over the drink driving limit.  Once at their destination, EG parked her car and accepted some drinks from her friends.  This is called the hip flask defence and is so named because in the past men frequently carried hip flasks from which they would drink after crashing their cars.  It was said they did this to calm their nerves but it also effectively prevents a court finding against them in a drink driving trial, so who knows the real reason behind its origins.

EG accepted that she had been in her car with the lights on and engine running when she became over the drink driving limit and that she may have driven again that evening while she remained above the drink driving limit.  Nick advised her that on this account she was guilty of being drunk in charge of a motor vehicle but that the penalty would be either a short driving ban or 10 penalty points, i.e. far less harsh than a sentence for drink driving.  EG stated she was happy with 10 penalty points and would plead guilty to being drunk in charge if the prosecution could be persuaded by Nick to offer it.  A plan was agreed that Nick would obtain and consider the prosecution evidence.  If appropriate he would make representations that they should drop the case against EG.

We immediately asked for the prosecution evidence and received it the week before the first court appearance.  After analysing the evidence, it was clear that the prosecution lacked sufficient evidence to secure a conviction but could gain a conviction for being drunk in charge.  We made immediate representations to the prosecution that they should discontinue the drink driving charge – we deliberately did not ask them to substitute a charge of being drunk in charge because we are here to represent our client’s best interests not to advise the prosecution on potential charges they could bring against our client.  It has to be said that if they thought they could get a drink driving conviction based on the evidence they sent to us then you have to question whether they are at all familiar with drink driving law.

A prosecution solicitor who was clearly more familiar with drink driving law reviewed the evidence at court and agreed to substitute the drink driving charge for one of being drunk in charge.  This is a significant difference.  An alcohol reading of 64mg in breath on a drink driving charge would mean a 17 to 22 month driving ban plus a fine of 150% of EG’s weekly income.  Whereas a guilty plea to being drunk in charge would mean at worst a short driving ban and a fine of 100% of weekly income.

EG was very happy to plead to being drunk in charge as she accepted that she had committed the offence and should not have done so.

Nick Diable represented EG in court, telling the court that EG is a professional woman who recently graduated from university, holds a good job and has never been in trouble before – this is called personal mitigation.  Nick explained the circumstances of the offence and that EG fully accepted her guilty and offered the court her genuine apologies for committing the offence – this is mitigating the offence.  Learning how to mitigate is a very important skill for any criminal law solicitor and one I have discussed previously in other blogs.

The District Judge listened carefully and agreed to significantly reduce the sentence.  Instead of the short driving ban the judge could have imposed, he awarded 10 penalty points.  Instead of the 100% of weekly income fine that he would normally impose, the judge more than halved the fine.

EG was very happy with the sentence.

So, we can see that when a solicitor takes time to meet face to face with a client to discuss their case in detail, examines the prosecution evidence properly and acts on that information spectacular results can be achieved.

It’s always worth asking at the end of a case, how else could this have been approached?  The most obvious answer is that we could have kept quiet about the flaws in the prosecution case and gone to trial on the drink driving charge.  That was an option explained to EG, but she had very clear goals: first to end the case as quickly and cheaply as possible; secondly to keep her driving licence.  Taking the drink driving charge to trial would have been very good for us because it would allow us to charge EG more money, but that does not fit with EG’s stated goals.  One thing we will always do at London Drink Driving Solicitor is to work with a client to find out what they want to achieve in a case and then present the best options for achieving those goals, even if it means we can’t charge as much money because providing sound, honest advice is what we are all about.

If you would like to discuss a drink driving or drunk in charge case with Nick Diable get in touch on 020 8242 4440 or visit our website.

Recent case: drunk in charge

Being drunk in charge is a serious motoring offence but you can defend
yourself if you are accused of it

When the police cannot prove that somebody has been drink driving they will often charge with an offence of being drunk in charge of a motor vehicle instead.  The offence is just as it sounds, the prosecution must prove that the defendant was over the drink driving limit and that he was in charge of a car or other vehicle.

Parliament included a defence to being drunk in charge when they created the offence – it is a defence if there is no likelihood of the defendant driving while he remains above the drink driving limit.  In 1989, the Queen’s Bench Division of the High Court heard a case known as DPP v Watkins in which the court said that magistrates should consider the following:

1.       Whether the defendant was in the vehicle – and if he was where inside the vehicle he was – if he were not inside then how far from the vehicle was he;

2.       What he was doing at the relevant time;

3.       Whether he was in possession of a key that fitted the car’s ignition;

4.       Whether there was evidence that he intended to take control of the car; and

5.       Whether any other person was in or near the vehicle at the time.

In our case, the Defendant had been found asleep in his car with the engine running by police officers following a tip off from a member of the public.  He had immediately explained to them that he had not been driving and had decided to sleep in his car because he had got drunk and knew that if he went home it would cause an argument with his wife, which he wanted to avoid.

Despite giving an innocent explanation from the very first moment he awoke, our client was arrested and charged with being drunk in charge of a motor vehicle while the alcohol in his breath exceeded the prescribed limit.

Nick Diable prepared his case and represented him at trial.  As part of the preparation, Nick spoke with the people the Defendant had been drinking with and took statements from the person with whom he left that confirmed that the Defendant had said he intended to walk home and had indeed set off on foot.  Another statement was taken from the Defendant’s wife who confirmed that there had been some problems in their marriage and that she had asked him not to come home after he had a drink.

At the trial, Nick cross examined the two police officers about the events on the morning they found and arrested the Defendant.  One officer initially denied knowing why the Defendant had been in the car; however, Nick got her to admit that the Defendant had immediately explained why he was in the car in some detail – the second officer accepted this had happened very quickly when questioned about it.  Both officers denied knowing how far from the scene of the arrest the Defendant lived; however, in cross examination both were shown a map and identified the scene as being within 100 metres of the Defendant’s home.

Nick questioned the Defendant as to his motives and gave him the opportunity to explain why the car’s engine had been running when the police found him.

At the conclusion of the trial, the District Judge said that the Defendant’s case “could only have been improved if he had been directly outside his own home.”  The judge found the Defendant not guilty and awarded costs in his favour.

If you have been accused of a drink driving offence you can get expert legal advice and representation in the London area from London Drink Driving Solicitor on 020 8242 4440 or in the Thames Valley area from Oxford Drink Driving Solicitor on 01869 886 490