Vehicle Ireland
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· IF YOU'RE SITTING in the driver’s seat of your car drunk, keys in the ignition and engine running you’ll definitely be arrested for being drunk in charge.
· If you’re sitting in the driver’s seat drunk, you’ll likely be arrested for being drunk in charge.
· If you’re walking towards your car drunk, you might be arrested for being drunk in charge.
Some people find it unfair that a person could be disqualified from driving for sitting in a car while drunk.
But then you see why the charge was created in the first place, and it makes sense.
More on that later.
What does being “in charge” of a vehicle mean?
Happily Irish law doesn’t define it. Determining whether someone was “in charge” of a vehicle depends on the facts of the individual case.
Every case is different after all.
This annoys people. It annoys them because they want certainty. If the law can be interpreted from one judge to another then it denies them that certainty. Uncertainty breeds the thing we humans hate most: anxiety.
But don’t blame the Irish legislators too much.
Most of our laws are basically copied from the UK equivalents and enacted over here. All we seem to do is remove the royal seal from UK legislation, place a harp on it and call it Irish law.
So, what does UK law say about what constitutes “being in charge”?
Not much I’m afraid. According to the leading textbook on drink driving, (PM Callow’s The Drink -and Drug-Drive Offences) “there is no [legal] definition of the expression ‘in charge’. Its interpretation is a question of fact”.
No help there.
This is known as the burden of proof
and it is the unique feature, the “golden thread”,
that runs through the criminal law.
Except its different for drunk in charge.
Its reversed.
Irish law (Byrne [2002]) has stated that what constitutes being in charge must be applied in a “common sense way”. In that case Mr Justice Murray said that since there was no definition of what “in charge” meant he took the view that judges had no difficulty ‘knowing it when they saw it’.
When in doubt though we always turn to our brothers in the UK.
In Byrne Judge Murray referred to the UK case of Watkins (1989).
Watkins was a big case in the area of drunk in charge.
Mr Watkins was sitting in the driving seat of a Mini Cooper car. The car didn’t belong to him. It was early in the morning and Watkins was holding a bunch of keys with a key marked “Honda” between his thumb and forefinger. The key could fit into the ignition, but it was uncertain whether the Honda key could start the Mini’s engine.
The court concluded that since the prosecutor hadn’t proved that the Honda key could start the Mini’s engine it hadn’t been proven that Mr Watkins had a “likelihood of driving”.
[NOTE: In Ireland it is presumed “until the contrary is shown” that the defendant had intended to drive]
Watkins joy at being found not guilty was short-lived.
The prosecutor appealed to the Divisional Court.
Here its important to understand the role of a Judge.
Judges don’t create laws, politicians do. The role of a Judge is to interpret the law created in parliament, not amend it or ‘fix’ it so that it ‘reads properly’.
Doubt is created when the law isn’t clear, and the court is being asked to interpret it in one way or another.
Sometimes if your argument is weak a lawyer may ask the court to take a “purposive” interpretation of the law i.e. to give a purpose to something that parliament didn’t specify.
Courts are often very reluctant to do this because it means ‘crossing the threshold’ into the area of creating legislation, the domain of parliament.
Many judges prefer a literal interpretation of the law i.e. that the words used in the Act should be read literally.
Remember, courts interpret law, they don’t create it.
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NOTE: This is known as the Separation of Powers. Just as judges cannot create laws, neither can politicians tell them how to do their jobs. This includes Ministers for Justice who state publicly that people will be arrested and jailed for certain offences. It is not the role of politicians to decide whether someone goes to jail. That is the judiciary’s job.
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Careful footsteps are now required. This was the case in Watkins.
The Divisional Court said that the law didn’t require the prosecution to prove that there was a likelihood of driving. It was up to Watkins to show that he had no likelihood of driving.
The Divisional Court gave a good reason for this.
They looked back into the archives of the House of Commons debates on the formation of the Road Traffic Act in February 1955. This Act was proposed and sponsored by Home Secretary, Gwilum Lloyd George, son of the famous former Prime Minister.
The Divisional Court wanted to see what Lloyd George and his fellow politicians “had in their mind” when they created the offence of drunk in charge.
When they checked the records of the debates in the House, they found no mention of the expression “likelihood of driving” [NOTE: the defence of ‘no likelihood of driving’ was only introduced under the 1988 Road Traffic Act].
The court concluded that the politicians must have wanted to prevent this excuse as a sort of legal ‘escape hatch’.
They wondered why this was so and concluded that the House of Commons had felt that if a person was in charge of a car, they should not be so drunk as to be incapable of controlling it.
Such a person might have no intention of driving, but they might accidentally release the handbrake and cause the vehicle to roll away.
Watkins was useful in other ways too because the court tried to give examples of what being “in charge” was. They said that there were two types of cases.
First scenario.
Where the motorist is the owner of the car or has recently driven it. He’s still regarded as being ‘in charge’ of it unless its shown that he’s not. But, he’s not in charge if:
· He’s given the vehicle to someone else, or
· He’s no longer in control of it and there’s no realistic possibility of him resuming control. Examples here would be if the motorist was at home in bed or a good distance from the car.
Second scenario.
Where the motorist isn’t the owner, possessor or driver of the car but he is sitting in it. Are they in charge? The court said they would be if:
· They were in control of it, or
· They gained entry to the car and demonstrated an intention to drive, or
· They stole the keys in circumstances showing an intention to drive quite soon.
“You were going to drive”
Don’t be alarmed by this.
No one’s accusing you of anything but Irish law differs from English law in this one particular area.
In England the motorist must show that there was no likelihood of them driving while drunk. In Ireland the motorist must show that they had no intention to drive while drunk.
This is what’s known as a ‘reverse burden of proof’. The iron rule in the criminal law (dating back to (Woolmington v DPP) is that the prosecution must prove every aspect of the case beyond a reasonable doubt. The defendant doesn’t have to prove anything.
This is known as the burden of proof and it is the unique feature, the “golden thread”, that runs through the criminal law.
Except its different for drunk in charge.
Its reversed.
Now the prosecution don’t have to prove every aspect of the case. All they have to prove is that you were in charge of a car while drunk.
Now its over to you. You have to prove you didn’t intend to drive.
It’s a high bar but not impossible.
Judges don’t create laws, politicians do.
The role of a Judge is to interpret the law
created in parliament,
not amend it or ‘fix’ it so that it ‘reads properly’.
A client of mine had been driving his car while drunk. He struck a kerb and damaged the passenger side wheel at about 8am. He noticed the problem straight away and pulled the car in. He then rang a tow-truck to come to take his car away. He sat in the driver’s seat smoking.
While waiting for the tow truck the police pulled up beside him and spoke to him. They noticed he was drunk. They asked him to get out of the car and decided to arrest him for drunk in charge. He advised them that he had called a tow truck.
At this moment the tow truck appeared, and the police told the driver that he wasn’t required as my client was under arrest.
The court dismissed the charge as they were satisfied that by calling the tow-truck my client had demonstrated that he had no intention to drive.
Another client of mine had been drinking. It was 5am and his partner came home. She agreed to drive him to the petrol station to get cigarettes. She was sober. On the way they had an argument.
She stopped the car and the argument continued on the road. She walked away. My client got out of the passenger seat and sat into the driver’s seat, waiting for her to return.
Neighbours who had heard the argument called the police. When they arrived, they arrested my client for being drunk in charge.
He claimed that he had no intention of driving. He said that he was going to wait for his girlfriend to return. But this claim was worth little unless accompanied by other evidence.
This was provided by his girlfriend (thankfully for him they were still together). She gave evidence that she had walked away but was going to return to the car as their home was too far to walk to. The charge was dismissed.
WHAT IS OR WHAT IS not drunk in charge is something that the trial judge has to determine. Every case and set of circumstances is different. There is no “one size fits all”.
Just because the police find you sitting in the driver’s seat doesn’t mean that you’ll be convicted of being drunk in charge. Other factors are important.
Like what?
If the police come upon a drunk man sitting in his car and he tells them that he is waiting for his wife to come to pick him up, is he guilty of being drunk in charge?
Possibly not.
Why?
Because if he has called his wife to come to collect him and she is later prepared to give evidence that they had spoken on the phone and that she was coming in to collect him, this is likely enough to defeat the presumption that he intended to drive.
After all, if it was shown that you had called someone to come get you and they were on their way, this shows that you had no intention to drive.
What about the man washing his car while drunk?
He’s clearly not sitting in the car but he’s in charge of it and he’s drunk. Technically he’s guilty of the offence.
He'd have to give evidence that he had no intention of driving. Presumably the car was parked on the road outside his house so other people in the house might be able to give evidence about his intentions.
Then there’s the inherent unlikelihood of the scenario.
People arrested for drunk in charge are usually arrested late at night or early morning, some distance away from their home. And if people wash their cars, they almost always do it during daylight hours, not at nighttime.
But still, don’t put yourself in that position.
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HERE'S A MUCH MORE likely scenario.
Christmas is approaching. Families will get together. Families will argue. They always do.
If you do have an argument and need to flee from someone, don’t use the car as a place of refuge.
Its no fun having to explain to a judge that you just wanted to sit in a car to get away from someone, not drive.
This type of thing does happen.
Don’t let it happen to you.