When is driving not driving? When you’re in charge

by Jeremy Sirrell.

All of us are familiar with the concept of ‘drink driving’, or driving with more than the permitted level of alcohol in your body. However, what is not so clearly understood is the closely related, but very different, offence of being in charge of a motor vehicle with excess alcohol. Although this offence is much less common than driving with excess alcohol, there are still a number of people prosecuted for this crime.  

The crucial difference between the two offences is that to be in charge does not require any driving whilst intoxicated. In fact, it is not uncommon for those prosecuted with being in charge with excess alcohol to have not driven on that day. All that is required to be guilty of the offence is that you are in charge of a vehicle with excess alcohol in your body.

A crucial question then arises; what does ‘in charge’ mean? The words are not defined in the Road Traffic Act 1988 and whether or not a person is ‘in charge’ of a vehicle is a matter of debate, although the following would be considered:

  • whether someone was in the vehicle or how far away they were from it
  • what he/she was doing at the relevant time
  • whether he/she was in possession of a key that fitted the ignition
  • if there was evidence of an intention to drive the car
  • whether someone was in, at, or near the vehicle and, if so, their details.

All of these factors, together with any others that might arise, could be relevant and taken into consideration by a court when reaching its decision.

It is often the case that people prosecuted with being in charge have taken to their vehicle for the evening, perhaps to sleep, and have no intention of driving whilst intoxicated. In these circumstances, the Road Traffic Act provides a statutory defence that you will not be guilty of an offence if you can persuade the court that you had no intention of driving the vehicle whilst above the legal limit.

If you have consumed enough alcohol to put you above the legal limit, it is extremely important that you do not put yourself in the position where you could be regarded as being in charge of your motor vehicle, even if you have no intention of driving it.

For further advice, please contact us on 01268 240000.

Jeremy Sirrell is a partner at Palmers Solicitors, specialising in  road traffic matters.