Attempting to drive when you are unfit

It is an offence under section 4(1) of the Road Traffic ASct 1988 for a person to drive or attempt to drive a mechanically propelled vehicle on a road or other public place while unfit to drive through drink or drugs.

Many of the defences that are available for the full offence of drink-driving are available for the offence of driving whilst unfit.

In addition to those, a factual defence may be available, for example that you were not ‘in charge’ of the vehicle. Whether someone is ‘in charge’ of a vehicle is a question of fact and degree and is not as straightforward as it may sound. The court will look at whether or not you were in the vehicle, where exactly you were in the vehicle (drivers seat, passenger seat or rear seat), whether anyone else was there to take responsibility, what exactly you were doing in the vehicle, whether you were in possession of the key that fitted the ignition and whether there is evidence of intention to take or assert control over the vehicle by driving or otherwise. Cases can become a complicated mixture of factors like this.

You need to be aware that the prosecution is not required to establish that you were likely to drive whilst unfit or over the legal limit. It simply has to show you were over the drink drive limit for alcohol or unfit through alcohol or drugs and that everything else points to you being “in charge”.

However, even if you were “in charge” you have a statutory defence if you can show on a balance of probabilities that there was no likelihood of you driving whilst unfit or over the legal limit. If you show this you are entitled to be acquitted.

The legal burden of proving this is on you the defendant. This means that you have to do more than show that you would not have driven for example, until you felt “OK”.  If you have been breathalysed, it will be possible to work out the time by which your alcohol level would have been below the legal limit, and you will need to satisfy the court that there was no likelihood of you driving until then.  Running this defence nearly always requires expert evidence from someone able to make that calculation. The court needs to know what time you would have been below the legal limit and that you would not likely have driven before then.  You might need to call evidence from others to support you.

I will give an example. I represented a man who had enjoyed a good evening out on New Year’s Eve, but who had become separated from his friends. He had nowhere to sleep and so made his way to his car, which he had carefully parked for the night. At about 8 AM was woken up by a police officer tapping on the driver’s window. My client had been asleep on the backseat. The car keys were in his possession and the engine had been on to keep the heating on. When questioned by the police he explained what had happened and why he was there. He was breathalysed and was well over the legal limit. He was asked by the police what he was intending to do when he woke up. He said that he intended calling his father to collect him.  He had decided against calling him out at 2 in the morning! He said he knew that it was going to be quite a while before he was fit to drive. The police did not believe him, thinking that he would probably have driven when he woke up.

I firstly called expert evidence to show the time by which is alcohol level would have reduced below the legal limit. He would not have been clear at about 7 o’clock the following evening. My client’s father, then gave evidence to the court to say that on previous occasions his son had done this and had always telephoned to ask for a lift or had caught a train. He would then return to collect his car much later, when he was confident he was clear. That had often happened late the same day or even the following day. The court accepted my client’s evidence and ruled that there was little likelihood of him driving on the day of his arrest before he he was below the drink drive limit. He was accordingly acquitted and was very happy.

If you are convicted because you cannot make the defence out in this way, the court has a variety of sentencing options available depending upon the seriousness of the offence. The sentencing guidelines allow the Court to endorse the licence with 10 penalty points or to impose a disqualification of between 6 and 12 months depending entirely on the level of alcohol shown by the breath sample.

The Court does not have to disqualify, and this is really important to appreciate. There is therefore a real benefit to be obtained in properly presenting mitigation and explanation to the court. This is where good quality representation can pay dividends.

Being in charge whilst unfit through drink or drugs is a serious offence. Get in touch with me to find out how I can help you.