The law is no different for motorhomes or HGV drivers in cabs. They may well be able to provide a reasonable defence if they were parked up and settled for the night in a recognised parking bay on a motorway services or whatever, or in the case of an HGV driver if he had his schedule of the following days work which might show his expected departure time. Officer discretion would have to come into play regarding arrest in these circumstances.
The offence is as stated below
Sec 5(1) RTA 1988
If a person -
(a)…
(b) is in charge of a motor vehicle on a road or other public place,
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence .
PNLD describes ‘In Charge’ in this way:-
“There is no hard and fast rule or strict test for what constitutes ‘in charge’ for the purposes of being in charge of a vehicle whilst under the influence of drink or drugs under section 4 and being in charge of a vehicle whilst over the prescribed limit under section 5 of the 1988 Act. However, a close connection between the defendant and control of the vehicle is required. That connection may be evidenced by the defendants position in relation to the car, his actions, possession of a key which fits the ignition, his intentions as regards control of the vehicle and the position of anyone else in, at or near the vehicle.”
Sec 5(2) offers a statutory defence for ‘In Charge’
5(2) It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit .
This defence was softened in favour of the defendant in light of the Human Rights Act 1998, where it was deemed that this statutory defence was too hard to achieve. The court in the Case Law of Sheldrake v DPP in 2003 gave the folowing meaning to the statutory defence.
“It is a defence for a person charged with this offence to demonstrate from the evidence an arguable case that at the time he was alleged to have committed the offence, the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath blood or urine remained likely to exceed the prescribed limit.”
The court later clarified
“It is not sufficient for the accused to show that, at the time of his arrest, he was so hopelessly drunk as to be incapable of driving a motor vehicle; he must show, for example, that he had handed the keys of the vehicle to someone else or that, realising that he was adversely affected by drink, he had taken a room for the night.”
In reality CPS will be very unlikely to run a Drunk in Charge unless there was reasonable likelihood that the defendant would drive while still over the limit.
The fact that the likelihood of prosecution may be fairly slim will not prevent an officer making a lawful and appropriate arrest for the purposes of prevention as well as evidence gathering.
