KNOW YOUR RIGHTS
and the case is adjourned for a trial for three months, giving us time to prepare the defence.
For the first point of the defence, we need to prove that there was no likelihood of his driving the car. We’d get statements from all the friends and a record of the taxi booking to confirm that he wasn’t going to drive, but instead was getting a taxi home. We might also want to explore CCTV from the pub car park.
DEFENCE
If someone is arrested for being drunk in charge, and it’s generally deemed that they are in charge of the car (see Example 1 above) then the defendant can look at presenting a defence under s.5(2) RTA 1988. This section says that a person is not guilty if they can prove “there was no likelihood of them driving the vehicle whilst the proportion of alcohol in their breath, blood or urine remained above the limit”.
There are two stages to this defence:
1) That there is no likelihood of driving. Here the defendant must satisfy the court that there is no real risk that he would drive. But it’s worth keeping in mind the case of Sheldrake v DPP where it was stated that the defendant’s intentions may change whilst drunk, and whilst a sober man may have had no intention of driving the vehicle, having become intoxicated his intentions may change.
2) The defendant must also prove that by the time that he was going to drive the vehicle he would have been under the limit. Expert toxicology evidence would usually be required to confirm the same unless it is obvious to a lay person that by the time they would have driven the vehicle they would have been under the limit.
So let’s go back to Example 1 - Mr X.
Mr X is being taken to court for being drunk whilst in charge of a car. We agree that he was drunk (twice the limit) and we also agree that he was in charge of his car.
However, we are going to argue the defence under s.5(2). We enter a not guilty plea at the first hearing,
PHTM FEBRUARY 2025
For the second point of defence, Mr X says that he would not have driven until he came to collect his car in the morning when the pub reopened at 10am. So we would get an expert toxicologist report to determine whether he would have been under the limit by 10am.
And if we can prove both parts, he would be found not guilty.
The best quote to summarise this comes from the case of DPP v Frost:
“If a defendant when apprehended in charge of a vehicle is only marginally above the limit and persuades the court that he would not have driven for a long period thereafter, then the court may properly find it to be obvious that the defence has been made out; but if a defendant when apprehended in charge of a vehicle is well over the limit and the court is satisfied that he would probably have driven in the space of a few hours, then it will not be at all obvious that the defence has been made out. In such a case the court cannot rely on general knowledge or commonsense or personal experience but will require clear, cogent and reliable evidence as to the relative rate at which the particular defendant would have been likely to lose the alcohol found on testing to have been present in his body.”
If you need any advice on motoring matters, please email
advice@pattersonlaw.co.uk or call us on 01626 359800 for free legal advice.
For updates on road traffic law follow us on:
twitter.com/Patterson_law_ or
facebook.com/PattersonLawMotoringSolicitors
71
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76
