Drink driving: different types of offences with very different consequences

The principal offences that defendants are charged with in connection with motoring and alcohol are:

1. Driving with Excess alcohol – contrary to section 5(1)(a) of the Road Traffic Act 1988
2. Driving Whilst Unfit - contrary to section 4(1) of the Road Traffic Act 1988
3. Drunk in Charge – contrary to section 5(1)(b) of the Road Traffic Act 1988
4. In Charge Whilst Unfit - contrary to section 4(2) of the Road Traffic Act 1988

Driving with Excess Alcohol and Driving Whilst Unfit

The motoring offence of Driving with Excess alcohol is set out in section 5(1)(a) of the Road Traffic Act 1988, which states:

“If a person—

(a) drives or attempts to drive 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.”

This offence is usually charged when the prosecution have scientific evidence to demonstrate that alcohol in a defendant's body exceeded the prescribed drink drive limit. This may be in the form of an evidential breath test conducted at the police station or results from an evidential blood test. The taking of these samples must be done in compliance with a prescribed procedure and mistakes in process or the statutory verbal warnings required can lead to admissibility issues, which in turn can cause a prosecution to fail.

In cases where there may be issues or an absence of scientific evidence, prosecutors often charge a defendant with the alternative offence of Driving Whilst Unfit.  Section 4(1) of the Road Traffic Act provides:

“A person who, when driving or attempting to drive a mechanically propelled vehicle on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.”

Section 4(5) defines that “a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired.”

There are no statutory defences to either of these offences. However, it is for the prosecution to establish beyond all reasonable doubt that the defendant drove or attempted to drive.  Difficulties frequently arise for the prosecution in establishing this when the alleged driver is not found in the driver's seat or pulled over by the police.  “Driving” is defined in the case of R v MacDonagh [1974] R.T.R. 372. It is essentially a question of fact, dependent on the degree and extent to which the person has control of the direction and movement of the vehicle.

Prosecutors who foresee problems arising in proving that a defendant was “driving” often choose to pursue the offence of Drunk in Charge or Unfit Whilst In Charge instead.

Drunk in Charge or In Charge Whilst Unfit

Section 5(1)(b) of the Road Traffic Act 1988 provides:

“If a person… 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.”

As with Section 5(1)(a), this offence is usually charged when the prosecution have scientific evidence to prove the level of alcohol in a defendant’s body exceeded the prescribed drink drive limit.  An alternative charge when this evidence is not available is set out in in Section 4(2) of the Road Traffic Act:

“a person who, when in charge of a mechanically propelled vehicle which is on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence.”

DPP v Watkins [1989] QB 821 provides that being in charge again is a matter of fact and degree to be decided in each case. However, the relevant considerations are:

“(i)  Whether and where he is in the vehicle or how far he is from it.

(ii)  What he is doing at the relevant time.

(iii)  Whether he is in possession of a key that fits the ignition.

(iv)  Whether there is evidence of an intention to take or assert control of the car by driving or otherwise.

(v)  Whether any other person is in, at or near the vehicle and if so, the like particulars in respect of that person.”

The consequences for a defendant convicted of the in charge offences can be significantly less severe than if convicted of the driving offences. Much depends on the level of intoxication or level of impairment, but at the lowest end of the scale, a defendant convicted an in charge offences may face 10 penalty points only rather than the mandatory minimum 12-month period of disqualification that a defendant convicted of driving with excess alcohol or driving whilst unfit will receive.

It is therefore important for a defendant accused of these offences to take legal advice at an early stage as to whether there is sufficient evidence for the prosecution to establish the more serious offence of driving.

The Statutory Defence

Unlike the offences involving an allegation of driving, the less serious offences of being in charge have an established driving prosecution defence as set out in statute.  For the offence of drunk in charge, section 5(2) of the Road Traffic Act 1988 states:

“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.”

For the offence of in charge whilst unfit, section 4(3) of the Road Traffic Act provides:

“a person shall be deemed not to have been in charge of a mechanically propelled vehicle if he proves that at the material time the circumstances were such that there was no likelihood of his driving it so long as he remained unfit to drive through drink or drugs.”

For example, a defendant who one evening when intoxicated goes to his parked car to retrieve something and inadvertently falls asleep in it may well be considered in charge. However, he may have the above defence available to him if he did not plan to drive again until the morning, i.e. several hours, and demonstrates the alcohol of alcohol in his body would be below the legal limit at that time, or that he would no longer be impaired.

In order to successfully run the statutory defence, particularly in the case of a section 5(2) offence, it is often necessary to instruct a forensic expert witness to conduct a “forward calculation” and prepare a report to confirm that at the time the defendant next intended to drive the alcohol level in his body is below the legal limit.

It should also be noted that there is a “reverse burden” placed on a defendant who raises this defence. Therefore, unlike most other criminal offences, the burden of proof switches to the defendant to prove his defence on the balance of probabilities. It is therefore important to seek advice on what supporting evidence, whether it be from live witnesses or documentation, can be presented to the Court to ensure that the defence has the maximum prospect of success.

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