Drink, Drug Or Unfit – Whilst ‘In Charge’ Of A Vehicle

There is no precise definition of being in charge of a vehicle. Whether someone is ‘in charge’ of a vehicle or not, is a question of fact and degree, which the court will decide based on the facts presented.

Broadly speaking, a person remains in charge of their vehicle until they have transferred control to another for example, by handing over the keys to someone else, circumstances that might show that they had no intention of re-asserting control over the vehicle.

Surprisingly, many motorists may have committed an offence of being ‘in charge’, without even realising they are breaking the law. For example, even if you are found asleep in your car, you could still be found guilty of being ‘in charge’, as the police may allege that you would have driven when awake but still being over the limit.

If it is alleged that you were ‘in charge’ of a motor vehicle whilst the proportion of alcohol or drugs was above the prescribed limit or you were unfit, then you must be able to prove that you had no intention to drive so long as you remained over the limit/unfit, this is called a ‘statutory defence’.

You would have to show on a balance of probabilities, that there was no likelihood of you driving your vehicle whilst you remained in excess of the prescribed limit or unfit. The legal burden of proving this is on you, the defendant, but if you can show this you are entitled to be acquitted.

The court will normally consider a number of factors such as: Where were you in relation to your vehicle at the time; where were you sitting if you were inside the vehicle; whether anyone else was there to take responsibility; where were the keys; were the keys that fitted the ignition actually in your possession; whether the engine was on; whether there is any evidence of an intention to take or assert control over the vehicle by driving or otherwise; or any evidence that suggests an intention to drive.

The following list of common drink and drug related ‘in charge’ offences, shows the basic defences available:

Section 5 RTA 1988 - Driving or being ‘in charge’ with alcohol concentration above prescribed limit, and;

Section 5A RTA 1988 - Driving or being ‘in charge’ with concentration of specified controlled drug above specified limit

To secure a conviction for ‘in charge’, the Crown Prosecution Service must be able to prove not only that you were in fact ‘in charge’ of the vehicle, but also that you were over the prescribed limit. 

You may have a defence to being in charge of a motor vehicle with an alcohol concentration above the specified limit or having a specified controlled drug in your blood or urine, above the specified limit for that drug, if you can show that there was no likelihood of you driving the vehicle whilst being over that specified limit (this is more difficult for drug related offences).

Section 4 RTA 1988 - Driving/Attempting to drive or being in charge of a motor vehicle whilst unfit 

You may have a defence if you can prove that it was more likely than not that you would not have driven so long as you remained unfit to do so, in which case you should not be charged.

You need to be aware that the prosecution is not required to establish that you were likely to drive whilst unfit or over the legal limit. It simply has to show you were over either over the limit for alcohol or drugs, or you were unfit through alcohol or drugs respectively and that everything else points to you being ’in charge’.

To help prove your defence, you might need to call expert evidence from someone able to calculate and work out the time by which your alcohol level would have been eliminated (metabolised) from your body, so as to establish at what point in the future you would have been fit to drive and below the legal limit (for drug related offences this is extremely difficult). You will also need to satisfy the court that there was no likelihood of you driving until then. 

In addition to these statutory defences there some more general defences, which may be available, surrounding the factual circumstances of the offence, the accuracy of the specimen or other procedural defences. Failing this, a Special Reasons argument might also apply, depending on the facts.

‘In charge’ offences are serious offences, that could result in a Sentence ranging from a Fine to a Community Order or even a term of imprisonment in extreme circumstances. The Sentencing Guidelines provide for a broad spectrum of sentencing options for ‘in charge’ offences

If you plead guilty or are convicted on one of these offences, the Court does not have to disqualify you, this is really important. The court does have the option of awarding 10 penalty points instead of a ban, but this would depend on several factors, so there is a real benefit in obtaining the best possible advice and representation, to present strong mitigation and a reason for the court to consider exercising their discretion not to disqualify you.

If you do receive an endorsement of 10 points and this would mean that the total number of points on your licence amounts to 12 or more, then you would become a ‘totter’; this would result in a mandatory minimum 6 months ban. Please refer to the relevant page of this website for further information regarding totting up.

As mentioned earlier, if there is no defence available to you, you will be advised about the best approach to mitigating (minimising) your sentence, including where possible the avoidance of a disqualification on the grounds of ‘Special Reasons’ thereby minimising the length of any disqualification imposed.