Most people know that driving while over the legal alcohol limit is a criminal offence. What is less widely understood is that you can also commit an offence by being “in charge” of a vehicle while over the prescribed alcohol limit – even if you are not actually driving.
It is an important distinction and one that can catch people off guard. In some circumstances, simply being in or around a vehicle while over the limit could lead to a police investigation and criminal proceedings.
What is the offence of being drunk and in charge of a vehicle?
Under Section 5 of the Road Traffic Act 1988, it is an offence for a person to be in charge of a motor vehicle on a road or other public place while the proportion of alcohol in their breath, blood or urine exceeds the prescribed limit.
Importantly, the vehicle does not have to have been driven for the offence to arise.
Depending on the circumstances, someone sitting in or around their vehicle while over the alcohol limit could therefore find themselves under investigation for being drunk and in charge.
What does “in charge” of a vehicle mean?
There is no single factor that will necessarily determine whether someone was “in charge” of a vehicle. The police and, if the case proceeds, the court will consider the circumstances as a whole.
Relevant factors may include:
- The vehicle keys: Where were the keys? Were they in your possession, in the ignition or somewhere else?
- Your location: Were you sitting in the driver’s seat, passenger seat or back of the vehicle, or were you outside it?
- Recent use of the vehicle: Had you recently driven the vehicle?
- Ownership: Were you the owner or registered keeper?
- The engine: Was the engine running or switched off?
- Your intentions: Was there evidence that you intended to drive?
Each case will depend on its individual facts.
Could you be drunk and in charge if you are sleeping in your car?
Potentially, yes.
For example, consider someone who has been drinking and sensibly decides that they are not fit to drive home. Instead, they choose to sleep in their vehicle.
They sit in the passenger seat, switch on the engine to use the heating and fall asleep.
Although they have not driven the vehicle, the circumstances could still lead the police to consider whether they were in charge of the vehicle while over the prescribed alcohol limit.
This is why the individual circumstances – including where you were in the vehicle, where the keys were and whether there was any likelihood of you driving – can be so important.
Is there a defence to being drunk and in charge?
There may be a defence where a person can demonstrate that there was no likelihood of them driving the vehicle while they remained over the prescribed alcohol limit.
Whether this defence is available will depend on the evidence and the particular circumstances of the case.
For example, evidence that someone had made arrangements to remain where they were until they were sober and had no intention or realistic prospect of driving before then may be relevant.
However, these cases can be highly fact-specific. The location of the vehicle, possession of the keys, the person’s actions and intentions, and other evidence may all need to be considered carefully.
What are the legal alcohol limits?
In England and Wales, the prescribed alcohol limits are:
- Breath: 35 micrograms of alcohol per 100 millilitres of breath
- Blood: 80 milligrams of alcohol per 100 millilitres of blood
- Urine: 107 milligrams of alcohol per 100 millilitres of urine
Alcohol affects people differently, so it is not possible to reliably determine whether you are below the legal limit simply by counting the number of drinks you have consumed.
Arrested or charged with being drunk and in charge of a vehicle?
Being drunk and in charge of a vehicle is a criminal offence and should be taken seriously. However, an allegation does not automatically mean that you will be convicted.
The precise circumstances surrounding the vehicle, the keys, your intentions and whether there was any likelihood of you driving can all be important when considering the evidence and any defence available to you.
If you have been arrested, interviewed or charged with being drunk and in charge of a vehicle, speak to our Motoring Law team as soon as possible.
Our experienced criminal defence lawyers can advise you on the allegation, assess the evidence against you and explain your options and any defence that may be available.
For urgent criminal law advice, call our 24-hour emergency line on 01245 358894 or email criminal@gepp.co.uk or drivingenq@gepp.co.uk.
Gepp Solicitors – here when you need someone on your side.
