Q. If I drive to a party, but decide that due to the amount of alcohol consumed I should not drive, is it legal for me to sleep in the car, or do I run the risk of prosecution for being drunk in charge?

A. You do run the risk of prosecution for either being in charge of a vehicle whilst unfit to drive or with excess alcohol in your breath, blood or urine.

You would have a defence to such a prosecution if you can prove that at the time of the alleged offence the circumstances were such that there was no likelihood of you driving whilst in that condition.

Although it is usually for the prosecution to prove its case, in order to establish the defence you have to prove that there was no likelihood of your driving. There has been a legal challenge to this burden for being in breach of the principle of presumed innocence under the Human Rights Act, but this challenge failed in the House of Lords in 2004, due to the legitimate object of the legislation of preventing death, injury or damage caused by unfit drivers.

“Likelihood”, in the context of this defence, means real risk, a risk that ought not to be ignored and not just a fanciful risk. Your intentions are only a factor for a court to take into account; they are not conclusive. A court has in the past observed that someone under the influence of alcohol might have the best of intentions, but that very influence might cause him to change his mind and that if he wanted to show no likelihood of his driving he should divest himself of the power to do so, perhaps by giving the car keys to someone else.

In a case in 2007, a van driver, being over the alcohol limit, was found asleep in his van, with the keys in the ignition so that the heater could operate, but without the engine running. Although the magistrates’ court accepted his explanation that he often slept in the van due to the nature of his employment and that he had no intention to drive, the prosecution appealed and the appeal court decided that his intention was not the decisive factor and that he had not satisfied the burden of proving that he was unlikely to drive.

Somewhat bizarrely, a magistrates’ court decided in a case in 1968 that because the defendant was so hopelessly drunk when found beside his car, there was no prospect of him driving. On appeal, the High Court dismissed that notion, saying that he could still have been unfit to drive even when the worst effects of the alcohol had worn off.

In short, you do run a significant risk of prosecution if you sleep in your car after drinking alcohol (and there are similar offences in relation to being unfit through consumption of drugs). If you really must do this, then remove all possibility of your driving, by giving your keys to someone else, perhaps a fellow party guest, but not someone staying at the house near to where your car is parked, so as to remove any chance of you going back to the house to retrieve your keys. Better still, take a taxi to the party!

Designed by solicitors, tested by barristers and available around the clock, Road Traffic Representation is an online legal system that allows people accused of a motoring offence to get free advice on how the law will be applied in their case, and referral to a telephone helpline and representation by a barrister in court if required. Practising solicitor Martin Langan spent two years designing the system and creating the data repository which allows the software to analyse road traffic offences with the same authority as a solicitor.
www.roadtrafficrepresentation.com

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