A common misconception surrounding drink-driving offences is that an offence is only committed behind the wheel of a moving vehicle.
It is possible to be convicted of a drink-driving offence merely by the fact that you were “in charge” of a vehicle while being above the legal limit.
There are three main road traffic offences related to the consumption of substances and being in charge of a vehicle:
in charge whilst unfit through drink (or drugs)
in charge whilst above the drink drive limit
in charge whilst above the specified drugs limit
“In charge”
Legislation does not define the concept of being “in charge” in this context. However, its meaning has been discussed in several cases. There is no hard and fast rule, but “in charge” is encompassed by two distinct classes of cases:
If the defendant was the owner or lawful possessor or had recently driven the vehicle, he would be “in charge”. The question that would be raised in his defence would be whether he had relinquished his charge (for example, whether he had put the vehicle in someone else’s charge).
If the defendant was not the owner, lawful possessor or recent driver, but was sitting in the vehicle or otherwise involved with it, the question for the court was whether he had assumed the role of being in charge of it. Usually this may involve having gained entry, but he may have manifested that intention in some other way, such as by stealing the keys of a car and demonstrating an intention to drive it.
Further circumstances that may also be taken into account include:
(a) whether and where he was in the vehicle or how far he was from it;
(b) what he was doing at the relevant time;
(c) whether he was in possession of a key that fitted the ignition;
(d) whether there was evidence of an intention to take or assert control of the car by driving or otherwise;
(e) whether any person was in, at or near the vehicle and, if so, the particulars in respect of that person.
It would be for the court to consider all these factors with any others that might be relevant and to reach its decision as a matter of fact and degree.
Driving or in charge whilst unfit
It is an offence to drive or attempt to drive a mechanically propelled vehicle on a road or other public place whilst unfit to drive through drink or drugs. Similarly, it is an offence to be “in charge” of a mechanically propelled vehicle.
You may be able to defend this if you can prove that at the material time the circumstances were such that there was no likelihood of you driving a mechanically propelled vehicle for as long as you remained unfit to drive through drink or drugs.
Driving or in charge above the limit
It is an offence if a person is in charge of a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit. It may be presumed by analogy that as with offences under the same section of legislation, “consuming” is not limited to drinking, but that entry into the body other than by mouth is included.
A defence to this may arise if you can prove that the circumstances were such that there was no likelihood of you driving the vehicle whilst the proportion of alcohol in your breath, blood or urine remained likely to exceed the prescribed limit.
Driving or in charge above the specified drugs limit
It is an offence to be in charge of a motor vehicle on a road or other public place when there is a specified controlled drug in the your body.
However, as a defence to this, you may argue that:
(a) the specified controlled drug had been prescribed or supplied to you for medical or dental purposes,
(b) you took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributer of the drug, and
(c) your possession of the drug immediately before taking it was not unlawful under section 5(1) of the Misuse of Drugs Act 1971 (restriction of possession of controlled drugs) because of an exemption in regulations made under section 7 of that Act (authorisation of activities otherwise unlawful under forgoing provisions). You may wish to seek legal advice to help you to navigate these sections.