Drink driving query

nennec

Howdy folks,

My friend was arrested and charged with drink driving on Sun night/Monday morning (nothing suprising there if you knew the lunatic). His breath reading was 70+ microgrammes of alcohol per 100 millilitres of breath (approx. double the legal limit). He is due in court in a couple of weeks.

What is interesting is that he wasn't driving at the time. He was parked, smoking a cigarette with the engine off. The key was in the ignition. Although he MAY have driven to the spot he denied this; the arresting Garda agreed that the engine was cold. I was just wondering if anyone could offer an opinion on whether it would be worth his while contesting the case based on the fact that he hadn't actually been driving.

A quick search of citizensinformation.ie suggests that to get a conviction the following "proofs" must be satisfied:
• That you drove or attempted to drive
• That you must have driven or attempted to drive a mechanically propelled vehicle
• That your driving or attempt to drive took place in a public place
• That you were under the influence of an intoxicant to such a degree that you could not properly control the vehicle.

IMHO it would be necessary to prove in court that he actually attempted to start the car.

Could anyone shed any light on this for me?

Warm thanks,
Nennec

Heraldoffreeent

Is this not a case of "being drunk while in charge of a "mekanikally propelled ve-hick-el""?

smartblaa

nennec wrote:

Howdy folks,

My friend was arrested and charged with drink driving on Sun night/Monday morning (nothing suprising there if you knew the lunatic). His breath reading was 70+ microgrammes of alcohol per 100 millilitres of breath (approx. double the legal limit). He is due in court in a couple of weeks.

What is interesting is that he wasn't driving at the time. He was parked, smoking a cigarette with the engine off. The key was in the ignition. Although he MAY have driven to the spot he denied this; the arresting Garda agreed that the engine was cold. I was just wondering if anyone could offer an opinion on whether it would be worth his while contesting the case based on the fact that he hadn't actually been driving.

A quick search of citizensinformation.ie suggests that to get a conviction the following "proofs" must be satisfied:
• That you drove or attempted to drive
• That you must have driven or attempted to drive a mechanically propelled vehicle
• That your driving or attempt to drive took place in a public place
• That you were under the influence of an intoxicant to such a degree that you could not properly control the vehicle.

IMHO it would be necessary to prove in court that he actually attempted to start the car.

Could anyone shed any light on this for me?

Warm thanks,
Nennec

Before I say anything Nennec..this is only my opinion.

There was a guy in the Waterford area successfully convicted in similar circumstances back a while ago for D.Driving. I'm not sure of the fine details but I think there's something about having the key in the ignition. Because of being intoxicated, and in charge of a motor propelled vehicle..or somethin like that. I think the key in the ignition is seen as intention to drive.

I'd say get a friend with legal knowledge to check it out.

Trojan911

nennec wrote:

Could anyone shed any light on this for me?

Drunk in Charge, not worth contesting, in my opinion....

TJ911...

Overheal

I think a key in the ignition is a silly interpretation. I've put the key in the ignition plenty of times, but you don't see me getting arrested for attempting to operate a "veheckel" without a liscence or insurance. All I did was turn the heat and radio on

Fey!

IIRC, you don't even need to have the key in the ignition , or even be in the driving seat. I THINK that once you're in the car on your own and have the keys, then you're "in charge" of the vehicle.
It may be an urban legend, but I've heard of a guy being done for being over the limit after he was found asleep in the passenger seat of the car sleeping it off.

Also, having the key in the ignition would strike me as having intent to drive.

wba88

Whats the legal limit these days?

smartblaa

wba88 wrote:

Whats the legal limit these days?

It's hazy.. depending on your body weight, metabolism, whether you've eaten beforehand. All those have to be factored in.

I have heard that it takes 3-4 hours for one pint to be processed by your body.

TBH I never drink alcohol before I drive, and it's not the fear of getting caught, it's the fear of killing someone. People often say "I drive better with a few pints". Everyone knows that you get cocky, confident and arrogant, so your senses are all over the place.

Sorry, Nennec this isn't a personal attack on you or your friend..it's just my feeling about drink driving.

I have slept off my drinking in the car on several occasions, and if a Garda just even tried to summons me, i'd be up in arms about it.

Sure as it happens, i've been randomly breathalised three times over christmas, and the disgusted looks I got from the Guards each time when it showed up "Zero"...I felt like saying "Do you want me to pop back to the Pub for a few shots?"

wba88

I think u misinterpreted. I meant when the gards check you what is a 'your under arrest amount' and a 'on your way amount'. How many milligrams-is it 80?

reason is i have a breathalyser here and check myself the day after going out.

Our man in Havana

Limit is 35 microgrammes of alcohol per 100ml of breath.

Fey! wrote:

It may be an urban legend, but I've heard of a guy being done for being over the limit after he was found asleep in the passenger seat of the car sleeping it off.

Not a legend at all. I know of a case where a man was convicted for drunk in charge simply by opening the boot and taking a coat out of it.

seamus

The statute is below:

Road Traffic Act 1994, Section 11

(4) A person shall be guilty of an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath.

How do you disprove "intent to drive"? It would seem to me, that sitting in the driver's seat with the keys in the ignition is reasonable grounds for assuming "intent to drive". You could of course argue that you were just using the radio and heater, but then why didn't you just get out of the car and go inside?

nennec

smartblaa wrote:

Sorry, Nennec this isn't a personal attack on you or your friend..it's just my feeling about drink driving.

Don't apologise, no offence taken, I agree with ya. I'm not trying to trivialize what he did (or may have intended to do) or pretend for one second that the poor lamb was sinned against; I was just wondering if it would be worth his while in contesting the charge. Obviously he's consulting a solicitor before making a decision, I just wanted to see if anyone had come across a similar case.

Thanks a million for all the replies/opinions/wise-cracks/etc.

Nennec

grumpytrousers

seamus wrote:

The statute is below:

Road Traffic Act 1994, Section 11

How do you disprove "intent to drive"? It would seem to me, that sitting in the driver's seat with the keys in the ignition is reasonable grounds for assuming "intent to drive". You could of course argue that you were just using the radio and heater, but then why didn't you just get out of the car and go inside?

Any amount of reasons; your designated driver friend is inside, they're not letting anybody else into the pub, and you went out to the car to get fags/phone and decided to listen to the radio...

to be quite honest, without getting into whether the OPs friend was about to drive or not, as a general point, 'nailing' somebody when they don't do anything, but just because they might be thinking about doing something is far too close to a 'thoughtcrime' for my liking.

obv no i don't want some clown, in a similar situation, to turn the key and kill a busload of orphans, but I do think that the Gardai in cases like the OP reports should have a quiet word with the person.

It boils down to common sense; if a parent leaves a fifteen year old 'child' in a car while parked on the public road so as to nip into the shops, and junior is left with the keys in the ignition so he can listen to the radio, have we an offence of somebody without a license/insurance being in control of a car...just a thought, like!

dats_right

OP essentially your understanding of the law is fundamentally correct. What offence was 'your friend' actually charged with i.e. s49 or s.50, in layman's terms 'drink driving' or 'drunk in charge'? It would appear on the face of it, that s. 50 would be the correct way for the Gardai to proceed.

My advice is to advise your friend to get himself/herslef a solicitor, as there are numerous quite technical considerations which will need to be considered in this case. Also, advise your friend not to listen to all the 'old wives tales' about drink driving court cases, all of whichwill only serve to obfuscate the matter, the only person he should listen to is his solicitor.

I don't intend to offer definitive advice, as I stated above, your friend really needs to consult with a solicitor. But, 'attempt to drive' for the purposes of s.50 is given quite a liberal interpretation by the courts and not necessarily pro-defendant either. My understanding of the case law on the matter is along the lines that usually there is sufficient proximity between putting the keys into the ignition and attempting to drive as to satisfy the court that the defendant is guilty of attempting to drive.

seamus

grumpytrousers wrote:

Any amount of reasons; your designated driver friend is inside, they're not letting anybody else into the pub, and you went out to the car to get fags/phone and decided to listen to the radio...

Ah here, that's tenuous at best. As best I can tell, if you're not sitting in the driver's seat, then you could very validily argue that you had no intent to drive and were not attempting to drive. Unlike in the US, it's almost impossible to drive a car here while sitting in any seat except the driver's seat.

We don't know the exact specifics of the OP's friend's case in question. He may have been on a quiet country road with nothing else around. There's no proof that he drove the car there, but there's ample evidence that he may attempt to drive (otherwise how will he get home?). On the other hand, if he was sitting in the car outside his own home, or a friend's home, then it's more likely that he would not be attempting to drive. So we can't really comment much more than we have.

to be quite honest, without getting into whether the OPs friend was about to drive or not, as a general point, 'nailing' somebody when they don't do anything, but just because they might be thinking about doing something is far too close to a 'thoughtcrime' for my liking.

It's a fine line, and next to impossible to define. As you say, we don't want people picked up off the streets for anything, but at the same time pushing it too far the other way (i.e. imagine if everyone actually had to be "caught in the act") leaves far too much room for criminals to get off scott free. If the law sets out fairly specific circumstances under which a person may be arrested/charged (and in my mind, the above paragraph is fairly straightforward), then people will be able to avoid arrest, and don't need to fear unwittingly breaking the law.

It boils down to common sense; if a parent leaves a fifteen year old 'child' in a car while parked on the public road so as to nip into the shops, and junior is left with the keys in the ignition so he can listen to the radio, have we an offence of somebody without a license/insurance being in control of a car...just a thought, like!

Well, not really. First off, it's assumed that the teenager will be sitting in the passenger seat, which means that they cannot be driving. And secondly, you can't be charged with "having intent to drive a vehicle without a licence", you actually have to be caught driving unlicenced or uninsured in a public place. I get what you're trying to say, but this circumstance is fairly specific to the issue of drink-driving.

nennec

dats_right wrote:

OP essentially your understanding of the law is fundamentally correct. What offence was 'your friend' actually charged with i.e. s49 or s.50, in layman's terms 'drink driving' or 'drunk in charge'? It would appear on the face of it, that s. 50 would be the correct way for the Gardai to proceed.

Hi,

Just been in touch with "my friend" (why am I using ""'s?), he's actually charged with s.50 with an alcohol reading of 71 mg per 100millilitres of breath.

Does this change, in any way, your opinion on the matter?

Also, it's his first offence (of any kind) could you offer an opinion on what punishment may be handed down if he was to be convicted.

(Also, as I've said previously, he's contacting a solicitor and will be taking his advice and his advice only )

Thanks for taking the time to post.

Nennec

Gurgle

seamus wrote:

you can't be charged with "having intent to drive a vehicle without a licence", you actually have to be caught driving unlicenced or uninsured in a public place.

So a 15 year old can be in charge of a vehicle and thats OK, so long as he isn't driving.

Stretching it a bit, if a drunk 15 year old were on his own in the passenger seat and the keys were in the ignition, he could be convicted of being drunk in charge of a motorised vehicle?

seamus

nennec wrote:

Just been in touch with "my friend" (why am I using ""'s?), he's actually charged with s.50 with an alcohol reading of 71 mg per 100millilitres of breath.

Section 50 of the RTA, 1961 is basically the "Drunk in Charge" offence, and is worded similarly to what I posted above.

Also, it's his first offence (of any kind) could you offer an opinion on what punishment may be handed down if he was to be convicted.

Penaltypoints.ie lists "Driving when unfit" as a specific issue, so he probably won't receive penalty points. There is a good chance of a large fine and a small ban however.

So a 15 year old can be in charge of a vehicle and thats OK, so long as he isn't driving.

I'd trust a sober 15 year old who doesn't know how to operate the vehicle, over a pissed 30 year old who does know how to operate the vehicle. At least the 15 year old can't get the car moving

Stretching it a bit, if a drunk 15 year old were on his own in the passenger seat and the keys were in the ignition, he could be convicted of being drunk in charge of a motorised vehicle?

Provided the 15 year old was in a public place. That's really the key here. It's legal to sit in your own driveway with a few beers on you and listen to the radio. It's not legal, for example, to go into town, park your car on St. Stephen's Green, have five pints, then return to your vehicle and listen to the radio. Which is 100% justified IMHO.

Victor

In the act, doesn't "driving" include "parking"?

grumpytrousers

seamus wrote:

It's a fine line, and next to impossible to define. As you say, we don't want people picked up off the streets for anything, but at the same time pushing it too far the other way (i.e. imagine if everyone actually had to be "caught in the act") leaves far too much room for criminals to get off scott free. If the law sets out fairly specific circumstances under which a person may be arrested/charged (and in my mind, the above paragraph is fairly straightforward), then people will be able to avoid arrest, and don't need to fear unwittingly breaking the law.

*insert Paxman-esque 'Yeeessss here*....:D

See, I guess my major problem is that on the surface a chap seems to have one over the nine, sat into a car, lit up a fag and was minding his own business. We have an engine that's cold. He has the key in the ignition, but to be quite honest, it's not implausable that he just wanted to sit in the car and put the heat on. I'll grant you that the only way to ensure he doesn't drive his car on that night is to take him out of it, but to have a presumption that he *will* drive his car because he's in the drivers seat is taking it a bit far; i know for a fact from my own car, it's a f*cker to get the key into the ignition from the passenger side, and doubly so after I've had a skinful!

It's only now I think of it, but I was down in Miltown Malbay earlier this year for the Willie Clancy Festival and the amount of people who may have had a few shandies too many who were sleeping in their cars was absolutely amazing. I'll wager a few of them had the heat on for a while too. I'd hate to think that gardai went and lifted them all....

anyhoo...your other points are valid, although y'll understand if i choose to disagree!
best of luck to OPs friend...methinks any sensible judge will admonish him with a bollocking and leave it at that!

Gobán Saor

grumpytrousers wrote:

the amount of people who may have had a few shandies too many who were sleeping in their cars was absolutely amazing. I'll wager a few of them had the heat on for a while too.

The engine has to be on to operate the heater. In which case, they could have accidentally put the car in motion.

dermot_sheehan

seamus wrote:

Section 50 of the RTA, 1961 is basically the "Drunk in Charge" offence, and is worded similarly to what I posted above.
Penaltypoints.ie lists "Driving when unfit" as a specific issue, so he probably won't receive penalty points. There is a good chance of a large fine and a small ban however.

Reason there's no penalty points is there's an automatic 2 year ban for a reading of 71 per 100 of breath

http://www.irishstatutebook.ie/1995_7.html

grumpytrousers

Gob&#225 wrote: »

The engine has to be on to operate the heater. In which case, they could have accidentally put the car in motion.

They could indeed; my point was I doubt that they got lifted for that...was this negligence by the gardai or a sensible application of the law, i wonder...

Sunshine33

Hi Nennec,
Just wondering whatever happened with your friends case? The very same thing happened my boyfriend, he was given a 2 year ban and a fine - he has since appealed it. He needs his car for work so to be banned from driving is going to leave him unemployed. Don't get me wrong I totally think that people who drink and drive are stupid and deserve to be punished but I think the 2 year ban was unfair considering he only sat into his car to get something and had NO intention to drive it. I've heard of cases where people have driven drunk therefore endangering other peoples lives and gotten off much lighter. Surely, the punishment for drunk in charge of a vehicle should be less for actual drink driving? Anyway, we just have to wait and see now..

vasch_ro

nennec wrote:

Howdy folks,

My friend was arrested and charged with drink driving on Sun night/Monday morning (nothing suprising there if you knew the lunatic). His breath reading was 70+ microgrammes of alcohol per 100 millilitres of breath (approx. double the legal limit). He is due in court in a couple of weeks.

What is interesting is that he wasn't driving at the time. He was parked, smoking a cigarette with the engine off. The key was in the ignition. Although he MAY have driven to the spot he denied this; the arresting Garda agreed that the engine was cold. I was just wondering if anyone could offer an opinion on whether it would be worth his while contesting the case based on the fact that he hadn't actually been driving.

A quick search of citizensinformation.ie suggests that to get a conviction the following "proofs" must be satisfied:
• That you drove or attempted to drive
• That you must have driven or attempted to drive a mechanically propelled vehicle
• That your driving or attempt to drive took place in a public place
• That you were under the influence of an intoxicant to such a degree that you could not properly control the vehicle.

IMHO it would be necessary to prove in court that he actually attempted to start the car.

Could anyone shed any light on this for me?

Warm thanks,
Nennec

If the key is in the igntion he is drunk in charge of the vehicle
the engine does not have to be running,
the key proofs are that the keys were in the ignition and that he was over the legal limit (about 2 times over in ur friends case)
it is not necessary to prove that he had actually started the car or tried to , once the key is in the ignition he is deemed by law to be in charge , the penalties are exactly the same as drunk driving its section of the road traffic act.

vasch_ro

Heraldoffreeent wrote:

Is this not a case of "being drunk while in charge of a "mekanikally propelled ve-hick-el""?

No it seems to be case of serious sterotyping on your behalf, other than that you are correct.

vasch_ro

wba88 wrote:

I think u misinterpreted. I meant when the gards check you what is a 'your under arrest amount' and a 'on your way amount'. How many milligrams-is it 80?

reason is i have a breathalyser here and check myself the day after going out.

the limit is 35 microgrammes of alcohol per 100mls of breath, better if it was anything over 0mgs easier all round...