KNOW YOUR RIGHTS
In this month’s edition we have a special feature dedicated to drink driving offences. With pubs and restaurants reopening the police are bracing themselves for an influx of drink drivers and courts have even agreed to start opening on Saturdays to deal with the high volume of likely cases.
For professional drivers, the risk is even greater. It is not just your licence at risk but your livelihoods and in most cases your homes as well. At Patterson Law we believe it’s vital that all pro- fessional drivers know their rights to understand what they can and cannot do and when they are at risk.
It might be an old cliché but the easiest way to avoid conviction for drink-driving is simple – don’t drink and drive. Most people try to calculate units, but it is a dangerous game to play. Everybody has a different metabolic rate and alcohol readings depend on factors such as height, weight, gender and what the subject has eaten. So, we always say that if you are ever unsure whether you will be over the limit, err on the side of caution and don’t drive.
THE OFFENCE The offences are covered in sections 4 & 5 of the Road Traffic Act 1988.
It is an offence to drive/be in charge of a vehicle on a road or other public place whilst above the prescribed limit or unfit to drive. Gen- erally, you can split this down into four parts and in order to convict the prosecution has to prove each element beyond reasonable doubt:
1) Driving/being in charge 2) of a vehicle 3) on a road or other public place 4) whilst over the limit/unfit to drive
1. DRIVING / IN CHARGE
Driving is the more serious of the two offences. It carries a minimum 12-month disqualification, increasing to three years for a second of- fence in ten years and the higher the reading, the more serious the sentence. For very high readings the court can impose community or- ders or even a prison sentence and there is no maximum ban.
Driving does not necessarily mean being behind the wheel with the engine on. The court will have a look at whether the person has custody and control of the car, so, for example, a person who was sitting in the driver’s seat and released the brake to let the vehicle roll 100 yards downhill was found to be “driving”. It has also been held that a person waiting in a traffic jam or sitting at traffic lights was said to be “driving” even though the vehicle wasn’t in motion at that particular time.
Where a person is found near a vehicle shortly after the vehicle has been driven (for example after an accident) the court will consider a number of factors including:
• whether the defendant has admitted to driving; • whether keys were found on the defendant; • witnesses that have seen the vehicle being driven; • whether the defendant is the only person insured; • whether they are the owner of the vehicle; • whether they were stood by it or sat in the driver’s seat; • whether it has been suggested anybody else has driven the vehicle.
This is a non-exhaustive list and each case will have its own facts. If there is no direct evidence that somebody was driving, the police may charge with a lesser offence of “being in charge of a vehicle”. This of- fence carries either ten penalty points or a shorter disqualification, usually in the region of 6-12 months.
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The words “in charge” are not defined in the Act, it is very much a mat- ter of fact and degree. In DPP –v- Watkins the court stressed there were broadly two classes of case:
(i) If the defendant was the owner or had recently driven the vehicle, he would be in charge and the question would be whether he had relinquished charge i.e. if he had placed the vehicle in someone else’s charge, if he was home in bed for the night or a huge dis- tance from the car.
(ii) If the defendant was not the owner, the question is whether he had assumed charge of the car, for example, if he had gained entry from it, or had taken the keys.
So, a person who is simply near to the car with the keys on them may still be committing an offence, even though they have never driven it.
It is a defence to being ‘in charge’ if the person can prove that there was no likelihood of them driving whilst the proportion of alcohol in their breath, blood or urine remained above the limit. ‘In order to put forward the defence the person must usually provide evidence to show when they next would have driven (which can be oral evidence under oath) and back this up with expert evidence to prove that by that time, the alcohol would have dropped to being under the limit.
2. A VEHICLE
The prosecution must prove that the person was driving a mechani- cally propelled vehicle.
The term includes not only petrol driven and oil driven vehicles, but also steam driven and electrically driven vehicles. It comes within the definition in s.185 of the 1988 Act or s.136 of the Road Traffic Regula- tion Act. A motor car from which the engine had been removed does not constitute being a vehicle.
Specifically regarding pedal cars: providing they are fitted with pedals by means of which they are capable of being propelled and the electric motor is not able to propel the vehicle when travelling at more than 15mph, then the vehicle is not subject to the Road Traffic Act. A cycle must also have a kerbside weight not exceeding 40kg and an electric motor not exceeding 0.2kw. The provisions are slightly different for tandem bikes and tricycles. Their kerbside weight must not exceed 60kg and the electric motor 0.25kw.
3. ON A ROAD OR OTHER PUBLIC PLACE
The offence can be committed either on a road or any other public place.
Simply because a patch of land is privately owned does not necessarily make it private land. The court will consider various factors in deter- mining whether it is a “public place” including whether the general public or only a specified class of the public has access, whether there are any barriers to entry, whether the owner invites the public to use the land and whether there are any signs prohibiting general members of the public from accessing it (but even if there are signs, the Magis- trates may use their local knowledge to determine whether the public simply use the land anyway).
A good example would be a fast food drive-through. It is certainly not a road and so certain offences which can only be committed “on a road” (for example speeding or driving whilst using a mobile phone) cannot be committed here. But even though it is not a road and it is privately owned, it is certainly a place to which the public has access and so an offence of drink-driving can be committed.
A pub car park can be interesting. During licensing hours any member of the public can turn up and so it would be “a public place”. But out-
JULY 2020
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