Our Motoring Legal Hour is hosted by Dan Hart, Solicitor Advocate in our Motoring department.

If you require further help regarding motoring law, please phone us on 01279 755777 or contact Dan Hart directly.

Our Motoring Team will be hosting the Nockolds Legal Hour on the following dates:

Wednesday 26th July 2017 12pm - 1pm 
Wednesday 6th September 2017 12pm - 1pm 
Wednesday 18th November 2017  12pm - 1pm 
Wednesday 29th November 2017  12pm - 1pm 

Our Latest Legal Hour Questions (03.05.2017)

Read your previously answered questions here

I slept in my vehicle after a night out where I had been drinking. I was spoken to by police, breathalysed and then arrested. The police have charged me with being drunk in charge and I have to go to court. Do I have a defence to this?

The offence of being Drunk in Charge is committed if:

“a person is in charge of any 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.  

Whether or not a person is ‘in charge’ of a motor vehicle is a question of the facts of each individual case.  The key question being whether the person is in control of the vehicle and whether in the circumstances there is a realistic possibility of him taking control of the vehicle. These cases will usually arise in circumstances where a motorist who is above the prescribed limit is found inside a car, but is not driving.  The Police will often say that people are guilty of the offence where they go to their car for any  purpose, such as sleeping in your case or they go to remove any items of property.  However, if you can establish that you would not have driven until such time as you were under the limit, this is a valid defence.  

In order to succeed you are likely to need a report from an expert intoxicologist to show at what time you would have been under the limit and then you will need to persuade the Court that you would not have driven until after that time.

The penalties for this offence are similar to drink driving but not quite as serious.  It carries a minimum of 10 points or a disqualification.  The Courts do often disqualify but this depends  on a range of factors, including how high your breath or blood reading was.  A disqualification is not mandatory for this offence.  
I have been charged with drink driving.  My drinks were spiked without my knowledge. Is that a defence?
Unfortunately, if you were driving then having your drink spiked is not a defence.  However it might a ‘special reason’ not to disqualify you. Special reasons are a legal concept that mean that although you are guilty you might not be banned from driving.

To succeed at court the onus will be on you to prove to the court that your drinks were spiked and this is what has resulted in you being over the limit. If you were substantially over the limit the spiked drinks argument is unlikely to work as Magistrates will usually say that you should have realised you were driving whilst over the limit.  It is therefore more likely to succeed if you were only marginally over the limit.  

In such cases, it is vital that evidence is obtained as quickly as possible to prove what happened.  It is important wherever possible, to get statements the person who spiked the drinks or from other people who may have witnessed it. 
I am facing a charge of failing to provide a specimen of breath because I was unable to blow into the breathalyser.  I was willing to have given a blood sample. What can I do?
If you are stopped by the police and asked to give a specimen of breath, you do not have an automatic right to ask for a blood sample instead.  Normally if a driver refuses to take a breath test on the basis that they are only willing to give a blood sample they will be charged with failing to provide a specimen of breath.

However, it may be possible to defend such a case if there was a ‘reasonable excuse’ for not providing a specimen.  A reasonable excuse would normally be a medical reason.  If are able to show that there was a genuine physical or mental reason as to why you were unable to provide a specimen and this is accepted as ‘reasonable’ then you are likely to be acquitted.  Examples of the types of reasons why a person may not be able to provide a breath specimen include having an anxiety or panic attack, suffering from a chest infection and/or asthma/chronic obstructive pulmonary disease (COPD).  

In order to succeed with the defence, you will need to seek a report from an expert explaining why your physical or mental condition prevented you from providing the specimen.