Drinking, driving the law ?

[firebird123]

Can we be asked to take a breathtest, by the Police, after drinking(more than you should) and then, sleeping in a Motorhome in a lay-by, or a bit of rough ground at the side of a road ?

 

[scotjimland]

If the police cant find the keys you cant be in charge of the vehicle.

You are "in charge" if you are the owner, in possession of the vehicle or have recently driven it. Not whether the Police can find the keys ..

 

[Allanm]

There is no need for the prosecution to prove that a person was likely to drive whilst unfit or over the limit. It is for the Defendant to prove that there is no prospect of using the vehicle.
The police have to suspect you have driven or are about to drive having consumed alcohol before requiring a breathtest.
There are a lot of people on here who maybe have a tot or two while parked up in their vans. Has anyone actually been asked to take a breathtest while in their m/h?
Allan

 

[tonyidle]

Having read some of that link even a caravan park is a public place

Absolutely. "Public place" was redefined a few years ago to include any place to which the public has access.

 

[cruiser]

never been bothered by the police in my truck.but have seen the police pull truckers over in the early mornings. and I have seen them nick a couple of them .but never been bothered by them in laybys at night.

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[firebird123]

I asked this question to a ex traffic cop/friend
If I parked my camper van in that lay-by in Ashover, then went and had a meal in the Poets , followed by 4 pints of real ale, returned to my camper van , after walking from pub,went to bed fell asleep..... could I be breathalyzed and prosecuted for being "Drunk in charge in a public place" ?

• He Said Technically, yes ! Just the same as if you were asleep on the back seat of a car. You could leave your keys with the landlord of the pub if you had a different key for the ignition.

 

[TheCaller]

In practice, the police have better things to do than knock on the doors of random motorhomes & enquire if you have been drinking. An 'in charge' prosecution, as opposed to a driving prosecution is only really likely as an adjunct to something else.

For instance, if a friendly copper knocks on your door to tell you that you are parked in a place where there has been trouble from thieves or vandals & you tell him to F-off & mind his own business, then if he suspects you have been drinking, an 'in charge' report is quite likely to be the result. If you offer him a nice cup of freshly brewed coffee, thank him for the warning & assure him that you will move on in the morning, he's not going to think it's in anyone's interest to report you & may even offer to drive back past later to deter anyone who might view you as a target.

 

[SMB]

There is no need for the prosecution to prove that a person was likely to drive whilst unfit or over the limit. It is for the Defendant to prove that there is no prospect of using the vehicle.
The police have to suspect you have driven or are about to drive having consumed alcohol before requiring a breathtest.
There are a lot of people on here who maybe have a tot or two while parked up in their vans. Has anyone actually been asked to take a breathtest while in their m/h?
Allan

This is what I have always understood, if you are in a position where you are able to drive away just before being approached or there is a reason why the cops would suspect you are about to, or intending to, drive then they can breathalyze you. If you are parked up with a lock across the steering wheel or a wheel clamp on etc you are not in a position to drive off. It's down to the individual cops interpretation but I thought the prosecution had to prove in court that you were about to drive, or intended to drive, under the influence.

 

[scotjimland]

the prosecution would have to prove in court that you were about to drive, or intended to drive, under the influence.

Legal advice..

"It will not be sufficient for you to turn up at court and simply say I would not have driven while over the limit. It will be for you to prove that there was no likelihood of you driving."

 

[SMB]

Legal advice..

was just about to post it, looked it up online. Didn't realize that it was up to the defendant to prove that!

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[Allanm]

was just about to post it, looked it up online. Didn't realize that it was up to the defendant to prove that!

May I draw your attention to my previous post M'Lud.........

 

[SMB]

Yeah I saw it thanks, suppose that's what happens when you speed read trying to do two things at once (film on TV being the distraction). Time for a beer

 

[sdc77]

In fairness to the legal advice above.. The cps will not prosecute if there was no likelihood of the defendant driving.. Due to things like..
No keys
Awning out
Wheel clamp on
... If on the other hand someone's keys were in the ignition (f ex) . The onus is going to be on them

 

[Emmit]

And can I also point out that this barsteward of a copper has to convince an old, grizzled, careworn, face like he's chewing a wasp, Custody Sgt. (for an ex example see photo on left. NO!!! not the missus!!!). that after knocking you up out of bed in your van for no good reason and spuriously arresting you on a drink/drive offence, that there was a likelihood of you driving in your JimJams whilst over the limit.

The blokes who came into my Suite (still makes me snort at that description) knew better.

 

[scotjimland]

arresting you on a drink/drive offence,..

The charge would be 'drunk in charge' .. not 'drink driving' ..

..
drunk in charge offence is not as serious as the related offence of drink driving and there is no mandatory 12 month ban although a ban it's not out of the question for this offence.

There is a fairly significant mandatory minimum penalty of 10 penalty points which, if convicted, could lead you to being banned under the "totting up" procedures if you have 3 points or more already on your licence.

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[callumwa]

You are "in charge" if you are the owner, in possession of the vehicle or have recently driven it. Not whether the Police can find the keys ..

Ownership is irrelevant to this; Otherwise if you were not the owner, such as anyone in a spouses' vehicle, commercial vehicle, hire car, company car etc, would have a get out clause.

There is no statutory definition of being "in charge", it is a matter of circumstances and interpretation, depending on exactly what occurred at the time of the alleged offence.

Sec 5.1.b of the RTA 1988 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.

However "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."

So, parked up, in bed, or on sofa, watching TV, keys nowhere near ignition, having had a drink is not really what this offence is directed at. In my years as a Plod, I never ever considered banging on a parked up camper van door in the remote hope of getting a Sec 5.1.b . I cannot recall any of my colleagues ever doing this either. We had much more on our hands than this nonsense.

To me this is just like gassing stories. Much talked about, but very little, if any evidence at all that it happens. Where is the motor-homer who can tell us that when he/she was parked up, minding their own business, in his locked up van, blinds drawn etc, who then had a knock on the door, and was subsequently to find himself taken away to a police station charge room shortly thereafter.

I have never heard of one, and wait for any member to come forward and tell us it "actually" happened to them.

I still have the old fashioned belief that "common sense" does actually still exist.

 

[Emmit]

The charge would be 'drunk in charge' .. not 'drink driving' ..

Jim,
You're taking my words too literally.

I refer you to the comments made by Callumwa (above) and would point out to you that under the circs. I described, ie waking up a 'vanner who was clearly asleep in night attire would be, not only part of any such persons defence, (and it would not come to that), it would also form part of the decision making process by the Custody Officer on the arrival of such a person to a Designated Police Station.
In these circs. it would be highly unlikely that the arresting officer could argue with the Custody Officer when the arrest is overturned . The only person who could countermand the decision of the Custody Officer is the Superintendent of that designated station. Not the Traffic Sgt, not the shift Inspector, no one other than the big boss, and he's unlikely to be around at 1 o'clock in the morning.

I confirm Callumwa's comments. It never happened to me in nearly 10 years as a Custody Sgt. That at a Police Station with a throughput of 10,000 persons a year.

 

[PORKSTER]

Glad I don't drink 1 thing less to worry about

 

[scotjimland]

Just to refresh.. The question asked by the OP was..

Can we be asked to take a breathtest, by the Police, after drinking(more than you should) and then, sleeping in a Motorhome in a lay-by, or a bit of rough ground at the side of a road ?

The answer is yes.. you could be nicked.

the law of 'drunk in charge' may be a bit wooly .. and the odds of actually being nicked tucked up in your van small.. but why take a risk ?

There was another thread where it was reported that a person was done for being drunk in charge of a camper van and lost his licence.. http://www.motorhomefun.co.uk/forum...-in-vehicle-can-result-in-lost-license.27960/

you can write this off as hearsay.. or heed the warning..

For what it's worth, my advice is if you are going to park for the night in a public place.. don't drink.. If you want to drink, book into a site..