I know you have found a solution for the xmas do, but I thought I'd post this up for the benefit of others so that they don't become a cropper. I apologise in advance if it becomes long-winded.
Wiltshire Builder was correct in stating that the offence committed is 'Being in charge of a motor vehicle while over the prescribed limit - Road Traffic Act 1988, s 5(1)(b).
It is triable summarily, maximum sentence of three months imprisonment and/or fine and discretionary disqualification (Driving whilst over the prescribed limit carries a mandatory disqualification).
The Act states
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.
In essence there are two elements to the offence, (1) being in charge of a motor vehicle and (2) being over the prescribed limit.
So what does being in charge constitute. In basic terms a person is essentially in charge of a motor vehicle whilst they have the keys in their possession. Technically this means that I can still be in charge of my vehicle even if it is parked up in a car park, and I am at home fast asleep, provided I have the keys.
To cover this technicality a lawful defence has been entered into the legislation that states
(2) It is a defence for a person charged with an offence 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.
Hopefully the following two scenarios will help explain.
Scenario 1.
You have driven you car into town, parked it up in a public car park, had a good night out and are well over the drink drive limit. You can't get home so decide to sleep in your car. It is a cold night so start the engine in order to warm up your heater. Therefore the keys are in the ignition, the engine is running and you are in the vehicle, and as such there is a likelihood that the vehicle may be driven (It doesn't matter that your intention is not to drive, there is a possibility that you may change your mind and drive)
Now take the same scenario, but after getting into the car you give your keys to somebody else for safekeeping. thus preventing you from starting up the car and there being no likelihood of the vehicle being driven.
It is for the defendant to prove on the balance of probabilities that there was no likelihood of his driving the vehicle. Once that defence is raised it is then for the prosecution to prove beyond reasonable doubt that there was a likelihood of the vehicle being driven.
I once came across a car that was parked at a funny angle across a couple of parking bays, a male was sat in the drivers seat, he had his seat belt on, the engine was running, the radio was on, the driver was fast asleep and his feet were on the pedals. He was woken up and subsequently provided a positive breath sample. Because I had not seen him actually driving the vehicle, he was charged with being in charge of a motor vehicle whilst over the prescribed limit because there was clearly a likelihood of the vehicle being driven.
In summary the best advice I can give is to avoid sleeping in your car after drinking unless absolutely necessary and if possible give your keys to somebody else to look after and never ever turn the engine on.
As a final note and to put your minds at rest, it is not something that crops up very often these days. In fourteen years I have arrested two people for the offence, one is the one highlighted above, the other didn't get charged as he could prove that he had no intention of driving the vehicle.
Sorry this is very long winded and full of legal stuff but I would hate for you guys to fall foul of this law, despite having the best of intentions.
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Originally Posted by dan_geoghegan
:-*