Driving under the influence

LegacyUser

Hi

I have a problem. On friday night I went to the pub with the lads for a few drinks. I went really early, and was drunk quite early on. We left the pub at about 11pm, and went back to a mates house and had some more to drink. At about 12.30am we all decided to call it a night, we had been out drinking since 8pm and were hammered!!

I decided to go back to the girlfriends house, so hopped in a taxi, and headed over there. When I arrived, it turned out she was actually out herself, and there was no answer from the door. I had no money to get home, and it was too far to walk, so I decided to wait. I had no jacket and was freezing, so I hopped into my car (which I had driven over there earlier, knowing that I would be staying at hers that night) to keep warm. Still freezing cold, I turned on the ignition to get a bit of heat into myself, it was 1am at this stage and all I had was a t-shirt. Ii should add I didnt have my phone with me so I couldnt call her to see where she was.

Well, you can see where this is going...the gardai pull up, apparently responding to a call that was made. They pull me out of the van (not literally) handcuff me, bring me to a cell, breathalise me and charge me with the intent to drive under the influence!!

You have no idea how mad I am about this. Now I want to get two things clear here. Im NOT looking for legal advice, I know I have to get a solicitor. and also, I was not driving the car, and had no intention to, I despise drunk drivers.

My situation is very unfortunate, as I understand I don't really have much of a case here. I am going to talk to a solicitor, Im wondering if anyone can recommend any in the Dublin area who deal with drink driving charges on a regular basis, or if anyone can tell me how to find this out. Sorry if this is a stupid question, but I have no experience with this kind of thing, and Im very worried because if I get disqualified I lose my job.

The gardai told me I can expect a 4 year ban. Im really worried about this, Im wondering if anyone can give me any advise as to what happens in circumstances like this? What other action should I take apart from getting a solicitor? Should I contact the taxi firm I got the cab from?

Any advice is greatly appreciated.

Thanks

John Mason

Once you have the keys in the ignition, you are considered drunk and in charge of the car.

Get a solicitor and he might be able to get the ban reduced

froosh69

aw no! bad luck!

maybe if you could get in contact with the taxi driver who dropped you to your gf house...if you were chatting to him on the way, he could be a witness...

LegacyUser

pink fluffy bunny wrote: »

Once you have the keys in the ignition, you are considered drunk and in charge of the car.

Get a solicitor and he might be able to get the ban reduced

Thanks for the reply, and I really don't mean to sound rude when I say this, but I know that. I know that although what I did was innocent, as far as the gardai knew I was just some idiot who had decided to get into the car and drive off. I wasnt aware of the law until friday night by the way, but I do understand it and accept why she cuffed me. However, I am angry at the thought that had I driven the car, Id be gone out of the estate by the time she had gotten around to me. I would never have done that, but it gets to me that by doing the right thing I still get done!!

However, I cant change what has happened. Im just wondering if anyone knows the normal course of action for something like this. Surely its not a four year ban?? Again, this might be a silly question, but can anyone give a ROUGH idea of how much a decent solicitor would cost for something like this? I know that might be hard to guess, but do they charge by the hour/ day... a rough estimate, am I talking 500euro or 2000euro?? I have no idea, and to be honest, would feel stupid strolling into a solicitor without a single clue, so I came here to get a rough idea just so Im not going in looking like a complete dope!!

I personally know of a man on the road I live on who drink drives regularly, has been doing so for a long time, and has never been caught. I mean, Ive heard of guys being pulled over who were pissed drunk and the keys were just taken off them and they collected the car the next day. And theres me, who was genuinely not doing anything wrong, and they're going to ruin my life for the next four years for it.

And no, ruining my life is not an exaggeration, I am going to be as good as a convicted drunk driver, Im going to have a criminal record now, no matter how small, I will be banned from the road, I will lose my job, not to mention the stigma attached to being drunk and behind the wheel. Im very bitter about this at the moment.

seamus

As far as I know, this is a slightly different charge than if you'd been found actually driving the car while pissed, but the penalties can still be quite severe.

The only person who can really answer your questions is a solicitor, who will be able to tell you how to put the best spin on your story.

maybe if you could get in contact with the taxi driver who dropped you to your gf house...if you were chatting to him on the way, he could be a witness...

This is irrelevant really. He's not being charged because the Garda thinks he drove to his location. If anything, the taxi might prove worse if he says that the OP seemed to be very drunk.

SuperGrover

a mate of mine went through the same thing a few years back. i was in the passenger seat. we were waiting outside a pub for some other people and were going to walk around to a house party. sat in the car, ignition on, keeping warm.

i was called as a witness by defense solicitor and testified that he had no intention of driving, that we were just waiting for some people.

case was dismissed due to this. the judge could see that we were being honest, the gardai were not happy.

In my opinion,the drunk in charge of a vehicle when you are not driving it is ridiculous but a part of the statutes unfortunately.
You have my sympathies for what it's worth on that.

Your solicitor will advise.Yes contact the taxi driver.It is highly likely that you will get a ban unfortunately though.

lemon125

Were you in the front seat sitting up or lying down in the back?
This happened a friend i knew and he was lying down asleep in the back seat during christmas in a car park. No car around and he was done, think 2/3 years off the road. It caused uproar as there is and still are people in our locality getting off while pissed drunk driving on technicalities left right and centre. I think its harsh but I remember the judge saying that there is a very high possibility that he would have driven home once he had woken up the next morning, so maybe if your car was outside your GF place you can say you would have went in there once you woke up?

Lemon125 makes a very good point.

Have you phone records to say that you spoke to your GF when she wasn't there?
Keep that record as she told you to waith that she'd be back soon like

LegacyUser

SuperGrover wrote: »

a mate of mine went through the same thing a few years back. i was in the passenger seat. we were waiting outside a pub for some other people and were going to walk around to a house party. sat in the car, ignition on, keeping warm.

i was called as a witness by defense solicitor and testified that he had no intention of driving, that we were just waiting for some people.

case was dismissed due to this. the judge could see that we were being honest, the gardai were not happy.

So they guy had drink on him and all when he was in the driver's seat? See I have no witness,but I could get in touch with the taxi driver and get him to verify that he dropped me to my gf's house. When the gardai picked me up I explained that she lived in the house across the road and wasnt there. As they brought me to the cell I explained the whole thing, and the male garda believed me, the female garda still processed it all though. When they dropped me back to the gf's house, they actually remarked "Oh look, her car is here, she's back now" So they did believe my story, but are taking me to court anyway!! Unbelievable!!

I'm not trying to be cheap, I genuinely can't afford to pay a solicitor. Would it be wise to go it alone, represent myself so to speak, and then pay out for a solicitor if I have to appeal the decision?

LegacyUser

Deleted User wrote: »

Lemon125 makes a very good point.

Have you phone records to say that you spoke to your GF when she wasn't there?
Keep that record as she told you to waith that she'd be back soon like

I had no intention of going home, because my bedroom is being redecorated and Ive no bed! To be honest, if I was going to go home after discovering she wasnt there, Id have been gone by the time the gardai showed up!! I was in the front seat, but was asleep. I was thinking though that this proves nothing, because for all they knew I was intending to drive but was so pissed that I fell asleep!

I never spoke to the gf because I didnt have the phone on me. The heart wrenching thing about it all is that had I got the phone with me, I would have called her only for her to tell me that she had anticipated me coming home early, because I was out since 8, and she had actually left her keys for me under the mat at the front door.

Bluetonic

Deleted User wrote: »

Lemon125 makes a very good point.

Have you phone records to say that you spoke to your GF when she wasn't there?
Keep that record as she told you to waith that she'd be back soon like

Unregistered wrote: »

Ii should add I didnt have my phone with me so I couldnt call her to see where she was.

:rolleyes:

aidan24326

Get yourself a good solicitor who has experience with this type of thing.

Something similiar happened to my dad once, sat into the car to ring my mother to come and collect him, and was done with intent to drive. His
solicitor got him off, though I'm not sure if the keys were actually in the ignition. If you had the keys in the ignition they can convict you, but a good solicitior may find a technicality somewhere. That's your only hope.

It's harsh but the law is there for a reason, and you can see how the gardai might assume you intended to drive, as I'd hazard a guess that a significant % of people in that situation would drive the car. It's worth contesting though as you do have a case to argue so find yourself a good solicitior and hope for the best.

kayos

Have seen people leaving a pub going to the car to get their jacket out and getting pulled for intent to drive! That was while I worked in said pub and yes we had a few stupid people who would drive with drink in them but one of the guys caught never did his car was left out the front and he would collect it on the way back from mass on a Sunday. Best get some legal advice even if from one of the freebie places.

Surely this is something that would be very tricky to gain a conviction on, fair enough if you had the seat belt on, engine on and were checking your mirror to pull off when they found you. But come on your sitting in your car to keep warm and bam they can put you off the road on their belief that you intended to drive? Thats like doing some one for intention to get drunk and disorderly when they are just walking into a pub! They might be tea totallers for heavens sake.

LegacyUser

aidan24326 wrote: »

Get yourself a good solicitor who has experience with this type of thing.

Something similiar happened to my dad once, sat into the car to ring my mother to come and collect him, and was done with intent to drive. His
solicitor got him off, though I'm not sure if the keys were actually in the ignition. If you had the keys in the ignition they can convict you, but a good solicitior may find a technicality somewhere. That's your only hope.

It's harsh but the law is there for a reason, and you can see how the gardai might assume you intended to drive, as I'd hazard a guess that a significant % of people in that situation would drive the car. It's worth contesting though as you do have a case to argue so find yourself a good solicitior and hope for the best.

I do understand why the law is there, usually a person who is drunk only ever finds themselves in their car with the ignition on when they intend to drive it. Thats fair enough. But the gardai are renowned for using their discretion in this country, and if ever there was a time to use it, this was it as far as Im concerned. It was obvious even to them that I was telling the truth. My case is an exception to that rule.

Boskowski

aidan24326 wrote: »

It's harsh but the law is there for a reason, and you can see how the gardai might assume you intended to drive, as I'd hazard a guess that a significant % of people in that situation would drive the car. It's worth contesting though as you do have a case to argue so find yourself a good solicitior and hope for the best.

To the OP I might say, 'unlucky, good luck, seriously'.

But more so on the actual regulations. It strikes me as a bit weird.
I mean if you think about it. Not only can they not prove that I've been driving, no, in fact I haven't been driving at all, but they assume I was going to drive, which of course they also can't prove. And which - in this case - I wasn't going to do either - and still they can get you a conviction. That's actually insane if you think about it.

I mean I always thought you can get done for things you actually did or in some cases for things you planned to do and you were carrying out preparations for. But to get done for something the Guards assume you were going to do...? Just on the grounds that others in the same situations are likely to do it?

Drummerboy08

I can see how it looked to the passing gardai - man sitting in car with ignition on, breathalysed, done for drink driving. I'm not taking a swipe at Gardai, i know all the work they do, but hopefully some common sense will be used here - IF you really had no attention of driving.

LegacyUser

realcam wrote: »

To the OP I might say, 'unlucky, good luck, seriously'.

But more so on the actual regulations. It strikes me as a bit weird.
I mean if you think about it. Not only can they not prove that I've been driving, no, in fact I haven't been driving at all, but they assume I was going to drive, which of course they also can't prove. And which - in this case - I wasn't going to do either - and still they can get you a conviction. That's actually insane if you think about it.

I mean I always thought you can get done for things you actually did or in some cases for things you planned to do and you were carrying out preparations for. But to get done for something the Guards assume you were going to do...? Just on the grounds that others in the same situations are likely to do it?

you make a good point, and I agree with you. I understand the idea of the law, but surely they cant do this, because they are wrong, I wasnt going to drive. And that seems to be the case with alot of people who were in similar situations. The gardai are getting it wrong, not all of the times, obviously, but innocent people are suffering because of what the 'average' person 'might' do. Its incredible. I wonder too if they had been sitting watching me for a while beforehand, to see if I was going to move, or what.

LegacyUser

Drummerboy08 wrote: »

IF you really had no attention of driving.

I didnt, but from listening to everyone here, I dont think that comes into it at all. It sounds like its all going to depend on the judge on the day. I could have had every intention of driving and give a sob story and get off or else I could tell the truth and he wont believe me. It is the most frustrating thing in the world!! I have always said I dont know how people who are in jail for crimes they didnt commit cope. I know this isnt that serious at all, but I feel that helpless, its completely out of my hands, and if the judge is a pr*ck, then I lose my car, licence, job, money...

the gf keeps telling me that it will be okay, and that the truth will come out, but this is one of them "my word against theirs" cases where a young 25yr old male (the very type they would expect this behaviour from) goes up against the gardai (those troopers) to try convince them he's not a scumbag.

Not that Im too sure whether this has anything to do with it, but the gf rents in a bad enough area where joyriding and burned out cars are kinda the norm! They would probably tend to not believe me because of the area??

Bottle_of_Smoke

Unregistered wrote: »

So they guy had drink on him and all when he was in the driver's seat? See I have no witness,but I could get in touch with the taxi driver and get him to verify that he dropped me to my gf's house. When the gardai picked me up I explained that she lived in the house across the road and wasnt there. As they brought me to the cell I explained the whole thing, and the male garda believed me, the female garda still processed it all though. When they dropped me back to the gf's house, they actually remarked "Oh look, her car is here, she's back now" So they did believe my story, but are taking me to court anyway!! Unbelievable!!

I'm not trying to be cheap, I genuinely can't afford to pay a solicitor. Would it be wise to go it alone, represent myself so to speak, and then pay out for a solicitor if I have to appeal the decision?

F*cking hell, they really must have nothing better to be doing. If I was a guard I'd just tell people the story with the law. The idea that so much costs and time is wasted due to crap like this really makes you wonder about the type of people they choose to be gardai.

Bet this would never happen in England.

To answer your question, get a loan for a solicitor. How could you pay for an appeal solicitor if you can't afford one first time round.

You really have my sympathies & I wish you the best of luck

Duckjob

realcam wrote: »

To the OP I might say, 'unlucky, good luck, seriously'.

But more so on the actual regulations. It strikes me as a bit weird.
I mean if you think about it. Not only can they not prove that I've been driving, no, in fact I haven't been driving at all, but they assume I was going to drive, which of course they also can't prove. And which - in this case - I wasn't going to do either - and still they can get you a conviction. That's actually insane if you think about it.

I mean I always thought you can get done for things you actually did or in some cases for things you planned to do and you were carrying out preparations for. But to get done for something the Guards assume you were going to do...? Just on the grounds that others in the same situations are likely to do it?

Yep, it's getting into 'Minority Report' territory, methinks.

seamus

Bottle_of_Smoke wrote: »

F*cking hell, they really must have nothing better to be doing. If I was a guard I'd just tell people the story with the law. The idea that so much costs and time is wasted due to crap like this really makes you wonder about the type of people they choose to be gardai.

In another circumstance, people would be berating the Gardai for not clamping down on people who do this.

The purpose of the law is to remove any ambiguity from the whole thing. If you had to actually catch people driving while they were pissed, then you put a lot of people at risk. If you can make it an offence to "intend" to drive a vehicle, then all you have to do is catch them in the driver's seat of the vehicle with the keys.

Of course, none of this helps the OP. It's a mistake a lot of people could make and have made with a few pints on them - your judgement is clouded and you're much more likely to think "ah feck it, sure the Guards won't arrest me for just sitting in the car". It's this exact kind of thinking which causes some people to then think, "Sure I only live down the road, it'll be grand if I go slow".

For the OP, his best course of action is to get a solicitor, whatever it costs. From having a brief look at the various acts in force, it would appear that a six month driving ban is mandatory for a conviction on this offence. But I could be wrong. In any case, paying a solicitor has to be better than losing your job and your licence.

Bet this would never happen in England.

It happens all the time in England.

LegacyUser

Bottle_of_Smoke wrote: »

F*cking hell, they really must have nothing better to be doing. If I was a guard I'd just tell people the story with the law. The idea that so much costs and time is wasted due to crap like this really makes you wonder about the type of people they choose to be gardai.

Bet this would never happen in England.

To answer your question, get a loan for a solicitor. How could you pay for an appeal solicitor if you can't afford one first time round.

You really have my sympathies & I wish you the best of luck

Thanks, sounds like I need all the luck I can get.

My thinking behind the solicitor thing was that I would try win the case myself and if not then I would get a loan to pay the solicitor. Does an appeal solicitor cost more?

LegacyUser

seamus wrote: »

In another circumstance, people would be berating the Gardai for not clamping down on people who do this.

The purpose of the law is to remove any ambiguity from the whole thing. If you had to actually catch people driving while they were pissed, then you put a lot of people at risk. If you can make it an offence to "intend" to drive a vehicle, then all you have to do is catch them in the driver's seat of the vehicle with the keys.

Of course, none of this helps the OP. It's a mistake a lot of people could make and have made with a few pints on them - your judgement is clouded and you're much more likely to think "ah feck it, sure the Guards won't arrest me for just sitting in the car". It's this exact kind of thinking which causes some people to then think, "Sure I only live down the road, it'll be grand if I go slow".

For the OP, his best course of action is to get a solicitor, whatever it costs. From having a brief look at the various acts in force, it would appear that a six month driving ban is mandatory for a conviction on this offence. But I could be wrong. In any case, paying a solicitor has to be better than losing your job and your licence.

It happens all the time in England.

As it happens, I completely agree with the intent thing, it doesn't make sense to let these people on the road and possibly harm others before arresting them. However, with a charge as ambiguous as 'intent', it shouldnt be as simple as 'no, youre guilty, we can read your mind' Not when so much is at stake for an innocent person

Duckjob

seamus wrote: »

In another circumstance, people would be berating the Gardai for not clamping down on people who do this.

The purpose of the law is to remove any ambiguity from the whole thing. If you had to actually catch people driving while they were pissed, then you put a lot of people at risk. If you can make it an offence to "intend" to drive a vehicle, then all you have to do is catch them in the driver's seat of the vehicle with the keys.

Ok, but look at it another way:

Somebody finds themselves in a situation where there are pissed, and have their car with them. They may think:

"if I drive home I might get done for it. But if I do the right thing and curl up inside to sleep it off, I might still get done anyway. So, in for a penny, in for a pound: I may as well chance it"

andrewh5

Both in the Uk and here, the minute the key goes into the ignition you are deemed under law to be in control of the vehicle - whether you intend to drive it or not.

All you can do is plead your case and hope you get a sympathetic judge.

Turner

To the OP, check out this link.

http://www.irishstatutebook.ie/1961/en/act/pub/0024/sec0050.html

Its the act you were arrested under. Its up to the Gardai to prove in court that you intended to drive.

Starting the car or havin the engine on does not show you intended to drive, as you said the reason you had the engine on was to keep warm.

All these storys of people being convicted after sleeping in the boot, the passenger seat, with keys in his pocket, keys under the fecking car ect, are absoulte rubbish.

Its up to you and your solicitor to prove you werent intending to drive the car. This could be as simple as saying in court "i had no intention of driving the car judge, i have never drank and drove i simply turned on the engine to get some heat going" Then its up to the gardai to prove you were. If they cant it will be dismissed.

The judge will decide. Bring your girlfriend into court and get her to say you were staying in her house.

These cases are very hard for the gardai to win in court, i should know i am one.

Best of luck and remember it is not a criminal offence you have been charged with, its simply a road traffic offence and you will not have a criminal record if convicted.

LegacyUser

if the person is in the driving seat and the engine is on then the person is in charge of the vehicle.it is illegal to be in charge of a vehicle when drunk

Turner

Check the link in my post above.

Look for these words intent to drive or attempt to drive the vehicle

Its only an offence if you do the above. Starting an engine for heat alone is a good defence.

copperfacegaz

Unregistered wrote: »

if the person is in the driving seat and the engine is on then the person is in charge of the vehicle.it is illegal to be in charge of a vehicle when drunk

You were arrested under Section 50 Road Traffic Act ,,, "Drunk in Charge of a MPV" ,, What did your reading come back on the breathyliser ?? 35mg/100ml of alcohol is the legal limit ,, if you came back under 62mg your probably looking at a year off the road and a fine so im curious as to where you got the 4 year ban from ?? if your as broke as you say you are you can apply for free legal aid to the judge on the first court date , the judge will decide whether he will grant you free legal aid based on your circumstances (income , dependants etc ).
If you are seeking a solicitor for this you can always get one in the courts on the date when u explain to the judge that you dont have a solicitor yet he will adjourn the case till u get a solicitor ( they are the suits lurking over your back licking their lips )... best of luck with this !

this is such bad luck op... just thinking i'd so the exact same if i was locked out of my house but had car keys. wouldn't risk it now..



make sure the solicitor and judge know exactly how cold it was.. if it was a warm summers night and a guy told me he did it for heat, i wouldnt believe him. but if it was genuinely cold, i'd listen to the rest of his story.

m5ex9oqjawdg2i

Minority report... :rolleyes:

Unlucky OP. Let us know how you get one, won't you?

LegacyUser

Thanks everyone

I will let you know how I get on, my court date is 18th December.
copperfacegaz: "where I got the 4 years from" was that the bean-garda who arrested me told me that. I am obviously happy to hear that is not the case, but again, I wouldn't know and believed her when she said it to me.

Chief: About it not being a criminal offence, I'm glad about that too. I will check that link too.

Im not so broke that I will need legal aid, I could pay for one, but I will need to get a loan to do so, which is what I have decided to do. Its just a bad time for money at the moment, thats all.

I don't know what my reading was on the brethalyser, I don't have the sheet with me at the moment, but I will check it when I get home and post it up. However, I remember the garda saying to me "You're not too bad, but you're still over the limit." Well thats just great news, isn't it??

It was just this saturday gone, a bitter cold night. Freezing in fact.

I will bring my girlfriend to court with me. I'm hoping that the fact that I was technically home (not my home but hers) will be enough for the judge to decide that I had no intention of driving the vehicle, even when I woke up.

I'm also thinking, these guys apparently responded to a call that was made by a neighbour. Now, in the time it took them to get from wherever they were (even if it was just around the corner), to approach my car, and to stop their own vehicle, get out, walk up to mine and knock on my window to wake me, if I had intent to drive, wouldn't I have done it by then??

PixelTrawler

This is definitely a case of bad luck and you have my sympathies but the garda in question didnt really have a choice but to do you.

She prob heard that excuse a million times "ah garda i was just warming me hands"... sad but true

She saw a guy
a) drunk / alcohol on board anyway
b) sitting in a car
d) engine running

To even chance doing this was very stupid but you dont need a lecture here...
(I wouldnt go posting this in the motoring section if I were you - they'll maul you for this)

Its only one motion away from pulling off. She had to act.

I have been told that if I was ever to take a kip in the car like that, put the keys in the glove box and sit in the back - even that may not save you - you cant be perceived to be in control of the car at all

There was also a case last year where a guy got in serious bother for revving a car while drunk. The thing is it wasnt his car and he couldnt drive or had a license - so cant remember the punishment but it was in the papers last year - he didnt get away with it anyway.

I do feel bad for you but just looking at this from the gardai view they may not be inclined to believe you nor the judge - they tend to take a dim view of cars mixed with alcohol.

Get good legal advice.

LegacyUser

Solyad wrote: »

This is definitely a case of bad luck and you have my sympathies but the garda in question didnt really have a choice but to do you.

She prob heard that excuse a million times "ah garda i was just warming me hands"... sad but true

She saw a guy
a) drunk / alcohol on board anyway
b) sitting in a car
d) engine running

To even chance doing this was very stupid but you dont need a lecture here...
(I wouldnt go posting this in the motoring section if I were you - they'll maul you for this)

Its only one motion away from pulling off. She had to act.

I have been told that if I was ever to take a kip in the car like that, put the keys in the glove box and sit in the back - even that may not save you - you cant be perceived to be in control of the car at all

There was also a case last year where a guy got in serious bother for revving a car while drunk. The thing is it wasnt his car and he couldnt drive or had a license - so cant remember the punishment but it was in the papers last year - he didnt get away with it anyway.

I do feel bad for you but just looking at this from the gardai view they may not be inclined to believe you nor the judge - they tend to take a dim view of cars mixed with alcohol.

Get good legal advice.

Well, you see, I do see it from her position, and as I have already said, I accept that even though I was oblivious (stupid as it seems) to the fact that I was breaking a law, I accept that I did. However, its not as simple as you say. It didn't go like this: Garda sees man stumble into car, get into driver's seat, and turn on the ignition. If it was, Im sure she would have waited for me to drive off and then really get me for the whole hog. It was garda comes up to a man asleep in his car, with the ignition on. Already in the car before she even came on the scene, making no attempt to move it at all, in fact, asleep. A man whose girlfriend wasnt at home (but was when they dropped me home, and didnt they just make a point of noticing that too!!) and was wearing a t-shirt.

I mean, if I had made up the story about my gf living in the house, or even that I was cold, I was well prepared for it, wasnt I?

The thing is, Im not having a go at the gardai. I know theyre just doing their job and thats fine, but thats what court is there for, to fight your case. A dim view is taken of murder too, but that doesn't mean that everyone accused of it goes to jail. I sincerely hope that I'm not punished for this.

Darragh29

pink fluffy bunny wrote: »

Once you have the keys in the ignition, you are considered drunk and in charge of the car.

Get a solicitor and he might be able to get the ban reduced

The only way out of this is if the vehicle was on private property, such as in your gf's driveway, I don't suppose this was the case??? If you were on the public road, forget it...

LegacyUser

Darragh29 wrote: »

The only way out of this is if the vehicle was on private property, such as in your gf's driveway, I don't suppose this was the case??? If you were on the public road, forget it...

It wasn't in her driveway, no. But it was half parked on the road, half up on the grass, as the roads are small enough in the estate. So it wasnt in a completely driveable position if that makes sense, as in opposed to being plonk in the middle of the road. I dont think that matters anyway though.

PixelTrawler

Wait, she found you asleep at the wheel with the engine running?

That may look pretty bad. She may have assumed you intended to drive but were so drunk u feel asleep. It would look to me from how you described it this way (if i was walking by say). I'd guess its how it looked to the gardai and how she reported it.

If you were way over the limit it'll add credibility to that line of thinking, if you were just a hair over, less so, less likely you'd pass out - you dont mention how much over but it'll prob have a bearing on what they believe

Im not sure if its advice you are looking for here on PI or if its just to air it off your chest but the advice you need wont be found here.

You have to hope you get a sympathetic judge and a good solicitor but seeing as it was not on private property it'll be hard to get away scott free on this one.

Is there any circumstances they make take into account such as being a sales rep of van driver where its your livelihood at stake here (may not count for anything but worth bringing up, it might come down to appealing to the judges better nature).

Whatever happens best of luck of it, rotten way to face into christmas

LegacyUser

Solyad wrote: »

Wait, she found you asleep at the wheel with the engine running?

That may look pretty bad. She may have assumed you intended to drive but were so drunk u feel asleep. It would look to me from how you described it this way (if i was walking by say). I'd guess its how it looked to the gardai and how she reported it.

If you were way over the limit it'll add credibility to that line of thinking, if you were just a hair over, less so, less likely you'd pass out - you dont mention how much over but it'll prob have a bearing on what they believe

Im not sure if its advice you are looking for here on PI or if its just to air it off your chest but the advice you need wont be found here.

You have to hope you get a sympathetic judge and a good solicitor but seeing as it was not on private property it'll be hard to get away scott free on this one.

Is there any circumstances they make take into account such as being a sales rep of van driver where its your livelihood at stake here (may not count for anything but worth bringing up, it might come down to appealing to the judges better nature).

Whatever happens best of luck of it, rotten way to face into christmas

No, Im sorry, read over my posts and I realise I totally gave that impression. No, I was asleep when they pulled up, but somehow at that point I woke up, I was awake when she knocked on my window, but sleepy and it did take me a minute to realise what was going on.

With relation to the brethalyser, I just read the sheet of paper they gave me, I got two forms from them, one says I agree to pay 300euro if I don't show up in court, but the other says that I was brethalysed and charged and was over 35mg but never actually states what my reading was. Is this an error on their part that they didn't provide me with my breathalyser reading, or am I clutching at straws?

I'm not looking to vent here, if I was, I would have posted this in "What made me angry today" Im looking to hear about other cases and what happened to them. I suppose I am looking to be made feel a little hopeful about the whole thing. I have asked my girlfriend to come to court and she said she would. I am hoping to find a solicitor, but how do I find one who has experience in drink-driving charges? Do I just go into places and ask?

seamus

Chief--- wrote: »

Check the link in my post above.

Look for these words intent to drive or attempt to drive the vehicle

Its only an offence if you do the above. Starting an engine for heat alone is a good defence.

The '61 act was replaced with this:
http://www.irishstatutebook.ie/1994/en/act/pub/0007/sec0011.html#zza7y1994s11

(which is very similar).

The key part being this line:

(8) In a prosecution for an offence under this section it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he shows the contrary.

It would be worth mentioning to a solicitor that you were asleep when the Gardai pulled up. The Garda would have to admit this on cross-examination, which would help your defence.

LegacyUser

seamus wrote: »

The '61 act was replaced with this:
http://www.irishstatutebook.ie/1994/en/act/pub/0007/sec0011.html#zza7y1994s11

(which is very similar).

The key part being this line:

(8) In a prosecution for an offence under this section it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he shows the contrary.

It would be worth mentioning to a solicitor that you were asleep when the Gardai pulled up. The Garda would have to admit this on cross-examination, which would help your defence.

Yes, thanks. And what about this?

The garda said she was responding to a call that was made by a neighbour. She never said what the nature of the call was, but that is irrelevant. I want to make the point that if what she says is true, and she responded to a call made, surely by the time she got to me, if I had any intention of moving the vehicle I would have done so by then, therefore proving that I had no intent on moving the vehicle.

However if she was lying and she wasnt responding to a call, well then she's a liar, and she's not reliable then.

Diddler82

The Bans have changed...

35 - 45 - 1 year ban for definite
45 - 60 - 2 Years (I think)
60 - 79 - 3 Years
80 + 4 years...

Not 100% sure but it is along them lines in terms of the new law.

Also you cannot appeal the 1 year ban, all the others can be appealed after 12 Months I think

Also failure to give a sample is an automatic 4 year ban.

Darragh29

seamus wrote: »

The '61 act was replaced with this:
http://www.irishstatutebook.ie/1994/en/act/pub/0007/sec0011.html#zza7y1994s11

(which is very similar).

The key part being this line:

(8) In a prosecution for an offence under this section it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he shows the contrary.

It would be worth mentioning to a solicitor that you were asleep when the Gardai pulled up. The Garda would have to admit this on cross-examination, which would help your defence.

I know this isn't the legal discussion forum but I just wanted to point out that this piece of legislation seems remarkably similar to the 1935 Criminal Law Amendment Act that was recently struck down as unconstitutional, because it had the effect of accusing someone of an offence that as far as they were concerned, had not actually been committed.

You could argue that as you had no intention of driving the vehicle and were only waiting in it to keep warm while you were waiting for your girlfriend to come home, that the above piece of legislation which assumes that you were intending to or attempting to drive the vehicle, unfairly deprives you of your right to plead not guilty to that particular offence...

It's an awful pity that you didn't think of driving the car into the driveway, then they couldn't touch you...

LegacyUser

Darragh29 wrote: »

I know this isn't the legal discussion forum but I just wanted to point out that this piece of legislation seems remarkably similar to the 1935 Criminal Law Amendment Act that was recently struck down as unconstitutional, because it had the effect of accusing someone of an offence that as far as they were concerned, had not actually been committed.

You could argue that as you had no intention of driving the vehicle and were only waiting in it to keep warm while you were waiting for your girlfriend to come home, that the above piece of legislation which assumes that you were intending to or attempting to drive the vehicle, unfairly deprives you of your right to plead not guilty to that particular offence...

It's an awful pity that you didn't think of driving the car into the driveway, then they couldn't touch you...

That is some excellent advice, thank you very much for that.

As stupid as it sounds, I didn't actually realise I was committing an offence for it even to cross my mind to drive it into the driveway.

Darragh29

Unregistered wrote: »

That is some excellent advice, thank you very much for that.

As stupid as it sounds, I didn't actually realise I was committing an offence for it even to cross my mind to drive it into the driveway.

One of the principles of law is a concept called Mens Rea. Mens Rea is a latin terms which broadly translates to mean "Guilty Mind". For you to be found guilty of an offence, usually the principle of Mens Rea has to be established by the prosecution. This means that it must be proven that you knew the act your were commiting was an offence, that what you were doing that resulted in you commiting an offence, was to your mind, an actual chargable offence or an illegal act.

It was on this basis that the above act regarding statutory rape was struck down, because the person who took the appeal sucessfully argued that he had been misled as to the actual age of the girl and had been led to believe that he was not in fact commiting an offence, as he genuinely believed that the girl in question was not a minor, as she had convinced him that she was above the age of consent.

The above piece of legislation, which clearly forces you to fully submit yourself to an incorrect assumption that you had intended to drive off somewhere, when you had actually only been sleeping in the car until your other half came home, in effect using the car as a source of heat, is wide open to an appeal on the basis that an assumption in legislation that you intended to do X,Y or Z, deprives you of defending yourself on the basis of Mens Rea not being established...

Sorry for the legal verbage, I know it isn't the legal forum but he did ask for advice and it is on topic...

SIBHCHEVIE

Really really bad luck, it just wasn't your night at all was it. Its such a stupid law though intent to drive, what the hell how do you prove that.

Does this mean we all could've been done with intent to drive when we used to sit in our parents car pretending to drive with the keys in the ignition

seamus

Unregistered wrote: »

The garda said she was responding to a call that was made by a neighbour. She never said what the nature of the call was, but that is irrelevant. I want to make the point that if what she says is true, and she responded to a call made, surely by the time she got to me, if I had any intention of moving the vehicle I would have done so by then, therefore proving that I had no intent on moving the vehicle.

It's for a solicitor to discuss with. Darragh29 gives a very good overview of what you could use, but don't try to argue it yourself in court, you'd be slaughtered.

I doubt the female Garda was lying. A neighbour may have seen you arrive quite pissed, failed to get into the house, hung around for a while, made a few phone calls and then get in the van and sit down. Perhaps the neighbour was worried that you were waiting to attack someone or cause hassle.

Darragh29

seamus wrote: »

It's for a solicitor to discuss with. Darragh29 gives a very good overview of what you could use, but don't try to argue it yourself in court, you'd be slaughtered.

I doubt the female Garda was lying. A neighbour may have seen you arrive quite pissed, failed to get into the house, hung around for a while, made a few phone calls and then get in the van and sit down. Perhaps the neighbour was worried that you were waiting to attack someone or cause hassle.

Well don't underestimate yourself either OP... I represented myself once in relation to a tax appeal and won! But Seamus has a point, if you are going in with a not guily plea at trial, this carries consequences in relation to sentencing if you are ultimately found guilty of the offence.

LegacyUser

seamus wrote: »

It's for a solicitor to discuss with. Darragh29 gives a very good overview of what you could use, but don't try to argue it yourself in court, you'd be slaughtered.

I doubt the female Garda was lying. A neighbour may have seen you arrive quite pissed, failed to get into the house, hung around for a while, made a few phone calls and then get in the van and sit down. Perhaps the neighbour was worried that you were waiting to attack someone or cause hassle.

Well I originally got into the back of the van (commercial) and then went into the front and turned the engine on. As I said before, its a bad enough area, I was actually thinking that some of the neighbours, who would not necessarily know me or the vehicle, thought I was trying to gas myself to death or something, and thats why they called. So she could well have been called out.

I will definitely be calling a solicitor. I'm hoping that the fact that its a commercial will help me "appeal to the judges better nature" as one of the others said.

Yes, Darragh29 you do make alot of good points here, and all of your advice is greatly appreciated. I feel so much better for understanding it all a bit better now.

LegacyUser

A friend of mine got acquitted on a similar charge recently, he was in a friends car, drivers seat, key was in the ignition and he was drinking at the time (The owner was giving them a lift to a party but they were early and there was no-one there so they were waiting around outside, and friend hopped in the front to mess with the radio). His case looks a lot more incriminating than yours, but got off primarily on the fact that he proved he had no intention of driving the car, had a few witnesses such as the driver an other passengers who could testify as to this, and was let off. Seems like you've a good chance if you could get maybe your girlfriend and the taxi driver to testify for you. Hopefully common sense prevails, it will be ridiculous if you're convicted. Good Luck

LegacyUser

GoodLuck wrote: »

A friend of mine got acquitted on a similar charge recently, he was in a friends car, drivers seat, key was in the ignition and he was drinking at the time (The owner was giving them a lift to a party but they were early and there was no-one there so they were waiting around outside, and friend hopped in the front to mess with the radio). His case looks a lot more incriminating than yours, but got off primarily on the fact that he proved he had no intention of driving the car, had a few witnesses such as the driver an other passengers who could testify as to this, and was let off. Seems like you've a good chance if you could get maybe your girlfriend and the taxi driver to testify for you. Hopefully common sense prevails, it will be ridiculous if you're convicted. Good Luck

Glad to hear your friend got off. Hope its the same for me. Well I plan to get a solicitor, and its not like I have to make a story up, just tell the truth. I am a bit more hopeful now than I was on Saturday morning, but still need to talk to a solicitor. Thanks for all the help.