Is it an offence to sleep in your vehicle whilst drunk?
At Olliers Motorlaw we regularly deal with enquiries from potential clients who have been prosecuted for the offence of being drunk in charge of a motor vehicle. Many such defendants have ended up sleeping in their vehicle following a heavy night out of drinking and are often unsure as to why they have been arrested. They were not driving the vehicle and were simply sleeping in the car for a variety of reasons. They considered they were taking the sensible course of action and then find themselves due to appear in court potentially at risk of a disqualification from driving.
Drunk in charge – the law
Section 5 (1) (b) of the Road Traffic Act 1988 creates an offence 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 exceeds the prescribed limit.
Defences to being in charge of a motor vehicle
It should however be noted that the next part of the legislation Section 5 (2) goes on to state that it is a defence for a person charged with an offence of being drunk in charge of a motor vehicle to prove that at the time he is alleged to have committed the offence his circumstances were such that there was no likelihood of his driving a vehicle whilst the proportion of alcohol in his breath exceeded the prescribed limit. Essentially this means there is a defence to the matter if there was no intention of driving the vehicle whilst someone was still over the limit.
In reality this means that we need to consider when someone was due to drive the vehicle next and if at that point they would have been under the limit. Typically we find clients sleep in vehicles when there may be problems with transport home or accommodation and would potentially have driven the vehicle the next morning. In such cases we need to calculate what their alcohol level would have been when they were due to drive and we typically need to instruct an expert to calculate such level of alcohol.
What does “in charge” mean?
There is no specific legal definition for the term “in charge” and therefore each case needs to be considered on its own facts and circumstances. Typically the factors that will be important are where a defendant was sat in the vehicle, where the keys were in the vehicle and whether the vehicle was switched on. However as indicated above even if it is considered that the defendant was in charge of a vehicle, there is still a defence if there was no intention of driving the vehicle.
At Olliers Motor aw from our experience of dealing with these types of cases we find that the police frequently do not investigate the likelihood of driving. Often defendants will however be interviewed by the police and we cannot emphasise enough the importance of legal advice during a police interview.
What is the penalty for being in charge whilst exceeding the prescribed limit?
The minimum penalty for an offence of being drunk in charge of a motor vehicle is 10 penalty points together with a fine. The offence does not lead to a mandatory disqualification from driving as driving with excess alcohol matters do. However there are sentencing guidelines for the magistrates court to use whilst dealing with such offences. If the reading is particularly high then a disqualification is more likely. However disqualifications are generally much shorter than the minimum disqualification from driving of 12 months for the excess alcohol matter. Of course courts will take into account any aggravating or mitigating features of the offence together with personal mitigation and any previous convictions of a defendant. It may well also be the case that if a defendant receives 10 penalty points and has other points on their licence then they may be liable for disqualification under the totting up provisions in any event.