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Q
Notice of Intended Prosecution issued 26/01/23 for speeding offence on 01/01/23, driving 42mph in 30mph limit. My husband was the driver.
Following receipt of NIP on 03/02/23 I viewed further details of the offence on South Yorkshire Police Public Access System. This states that there was a NIP issued on the 13/01/23 and a new driver was nominated on 24/01/23. This is before we even received the NIP!
Drink driving is under s.5(1)(a) Road Traffic Act 1988, whereas being drunk in charge is under s.5(1)(b).
If they maintain the ‘driving’ charge, it looks to be an easy win. We simply ask them to prove you were driving.
But I anticipate that as soon as you get into court it’ll be changed to an ‘in charge’ offence. The prosecution can lay a new charge without opposition up to six months after the offence date.
The second issue is private land. An offence of drink driving or being drunk in charge of a car can only be committed in a public place. I appreciate that this car park is private and has a barrier, but even with a barrier I would suggest that it would be a public place. Pedestrians can use the car park and if members of the public leave their cars overnight it would be difficult to argue otherwise. But we can certainly look into it.
However, regardless of the above you still do have a good defence available. It is a defence to being drunk in charge if you can show there is no likelihood of you driving whilst being above the limit.
So there are two things we need to prove:
1) No likelihood of you driving. This is different from intention. Whilst you may not have intended to drive your intentions may change when you wake up and so we need to show that there was no possibility of you driving.
2) That there was no likelihood of you driving whilst above the limit. So we have to show that the next time you would have been driving, the alcohol would have reduced. We might need an expert toxicologist report to back us up on that side.
PHTM MAY 2023
There is no further information to explain this discrepancy.
Given that the written NIP dated 26/01/23 wasn’t sent within 14 days of the offence is it invalid? if so, what are next steps to deal with this? I haven’t responded to the Notice yet. Thanks
A
When a speeding offence is committed a Notice of Intended Prosecution is sent to the registered keeper. In your case, I anticipate you weren’t the registered keeper?
It looks like the first NIP was issued on the 13th January to the registered keeper, and the registered keeper then nominated you as the driver. What you have received looks to be the second NIP.
In law, the NIP must be served either verbally at the roadside or at the registered keeper’s last known address within 14 days. So if they have sent it to the registered keeper within 14 days, then they’ve complied with their duty.
There is then an exception as well - a NIP is not needed in 14 days if the keeper has been the author of their own downfall, for example if they have moved but failed to update the V5 with the new address.
So if you are not the registered keeper, or if you are the registered keeper but the vehicle is still registered to an old address, then that might explain the delay. If so, it would not be challengeable on that basis. i
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