IN CHARGE

The most common scenario for people that are caught drinking and driving is when they are stopped by the police after driving a motor vehicle. However, it is also an offence to be in charge of a motor vehicle whilst unfit to drive through drink or drugs. A person is in charge of a motor vehicle when they have control over it.

The fairly common situation that I am asked to advise upon is where an individual has decided to sleep in their car after a nights drinking, then intending to drive home the next morning. They are however arrested for being in charge of the motor vehicle during the course of the night. Whether such a person is in charge depends on a number of matters, for example where the car is parked, where the keys of the car are and where the person is within the car. Assuming such an individual is in charge we then have to look at whether they can rely on what is known as the statutory defence. The statutory defence provides that where an individual has been in charge of a motor vehicle that person is deemed not to be in charge of the vehicle if they can prove that at the material time the circumstances were such that there was no likelihood of them driving whilst they remained unfit.

It will be noted that initially the burden of proof is upon the driver to show that there was no likelihood of them driving during the material time. The first thing that often has to be done in such cases is to obtain a report from a forensic scientist. The purpose of this report is to provide scientific evidence as to how long the driver would have been over the prescribed limit. To run the defence the client’s instructions would then have to confirm that they had no intention to drive during this material period of time.

When considering a defence the Magistrates will consider one of the most material factors to be the level of alcohol. The reason for this is the higher the level the longer the period of time the individual would have remained unfit to drive. It is perfectly possible for a driver to still be over the prescribed limit the morning after the night before.

In the case of Norfield –v- Pinder in 1968 a driver was accused of being in charge with a very high alcohol reading some three times over the legal limit. The driver in question was found by his car at 9.14pm and the Magistrates initially found that he was so hopelessly drunk that he would have not been capable of driving his car or even of finding it or walking to it so they dismissed the case against him. This decision was subsequently quashed by the higher court who directed that the driver should be convicted. This court stated that there had been no evidence that he would not have driven when the effects of the drink had worn off.

When considering such defences the court will be particularly interested in any other arrangements made by the driver, for example, arranging for somebody else to come and collect the car, having overnight accommodation booked.

Finally it should also be noted that a drunken supervisor of a learner driver can also be in charge of the motor vehicle as it is likely that they may have to take over the control of the vehicle in an emergency.