is it illegal to drink in your car?

Joebits

is it illegal for the driver and passengers to drink in a car that is parked?
if the car isnt being driven(hence its parked) can you be accused of drink driving?

greenman09

Aren't you technically in charge of a vehicle while intoxicated?

Jo King

You can be accused of anything. Whether the evidence supports the accusation is another matter. If the car is parked and there are people in the car there is the possibility that one or more of them could be found to be drunk in charge.

Vim Fuego

An old college lecturer of mine once told the class about his friend who had been out for drinks and had parked in town. He was planning to kip in his car so he sat in the driver's seat and had turned the car on to get the heat going. He got breathalysed anyway and was charged because technically he was in control of the vehicle. Whether it would been ok if he was in the passenger seat, I don't know.

JohnK

Vim Fuego wrote: »

An old college lecturer of mine once told the class about his friend who had been out for drinks and had parked in town. He was planning to kip in his car so he sat in the driver's seat and had turned the car on to get the heat going. He got breathalysed anyway and was charged because technically he was in control of the vehicle. Whether it would been ok if he was in the passenger seat, I don't know.

I wonder if that was the reason? Perhaps if the engine was switched off and the handbreak applied then maybe it would have had a different outcome.

Trojan911

wrote:

[GA] Being in charge of mechanically propelled vehicle while under influence of intoxicating liquor or drug.

50.—(1) In this section "unfit to drive" means under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of a mechanically propelled vehicle.

[GA] (2) A person who, when in charge of a mechanically propelled vehicle which is in a public, place with intent to drive or attempt to drive the vehicle, but not driving or attempting to drive the vehicle, is unfit to drive the vehicle shall be guilty of an offence.

[GA] (3) A person who is guilty of an offence under this section shall be liable on summary conviction, in the case of a first offence, to a fine not exceeding twenty pounds or, at the discretion of the court to imprisonment for any term not exceeding one month or to both such fine and such imprisonment and, in the case of a second or any subsequent offence, to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and such imprisonment.

[GA] (4) In a prosecution for an offence under this section, it shall be presumed, until the defendant shows—

[GA] ( a ) that at the material time the circumstances were such that there was no likelihood of his driving the mechanically propelled vehicle so long as he remained unfit to drive, and.

[GA] ( b ) that between his becoming unfit to drive and the material time he had not driven the mechanically propelled vehicle in a public place,

[GA] that he intended to drive or attempt to drive the mechanically propelled vehicle.

[GA] (5) A person liable to be charged with an offence under this section shall not, by reference to the same occurrence, be liable to be charged under section 12 of the Licensing Act, 1872, with the offence of being drunk while in charge, on a high-way or other public place, of a carriage.

[GA] (6) Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.

[GA] (7) Where a person convicted of an offence under this section has been previously convicted of an offence under section 49 of this Act or under section 30 of the repealed Act, he shall be treated for the purposes of this section as having been previously convicted of an offence under this section.

Source

Dublin_Gunner

This is slightly off topic.

A friend of mine was drunk in town, and decided to try drive home (about 3 am).

He was parked near Kevin St in town, and drove a very short distance until he side swiped a telegraph pole, and decided to pull over and park the car.

A short time later a Garda woke him (as he fell asleep when parked), and breathalised him, and brought him to the station.

Needless to say he was charged with drink driving.

He got off though, there was no evidence to prove he actually drove the car while intoxicated - even though he admitted it to the Gardaí.

JohnK

Trojan911 wrote: »

[GA] (2) A person who, when in charge of a mechanically propelled vehicle which is in a public, place with intent to drive or attempt to drive the vehicle, but not driving or attempting to drive the vehicle, is unfit to drive the vehicle shall be guilty of an offence.

Surely if the car is parked and you're sitting there having a drink with someone there is neither attempt nor intent to drive the car?

Dublin_Gunner

JohnK wrote: »

Surely if the car is parked and you're sitting there having a drink with someone there is neither attempt nor intent to drive the car?

Check my post above - the Gardaí also have to prove it.

seamus

JohnK wrote: »

Surely if the car is parked and you're sitting there having a drink with someone there is neither attempt nor intent to drive the car?

But you may intend to drive the vehicle later. People have been done for it.

However, there is no specific law that says it is illegal for a driver or a passenger to be drinking in a vehicle. In fact, it is perfectly legal to drink while driving your vehicle so long as you're under the legal limit.

There was a big enough discussion on this before. A guy started a thread because he'd gotten into his van to start up the heater and turn on the radio while he waited for his girlfriend to come home. The Gardai arrested him. Another guy mentioned that he used to take a bottle of beer with him on Friday evening while driving home to the sticks. He was stopped once by a Garda, had a chat with him, got breathalysed, negative and the Garda waved him on his merry way.

You only need to be unfit to drive the vehicle by way of intoxication. The generally-accepted rule is that if you have the keys in the ignition, then you can be accused of intending to or attempting to drive the vehicle. If you have the keys in your pocket (and you're asleep) or you're not sitting in the driver's seat, you cannot be accused of that.

So if you want to drink in your car with your mates and you intend to get pissed, have the person with the keys sit in the back and leave the driver's seat vacant.

Trojan911

JohnK wrote: »

Surely if the car is parked and you're sitting there having a drink with someone there is neither attempt nor intent to drive the car?

wrote:

[GA] (2) A person who, when in charge of a mechanically propelled vehicle which is in a public, place with intent to drive or attempt to drive the vehicle, but not driving or attempting to drive the vehicle, is unfit to drive the vehicle shall be guilty of an offence.

Not illegal to drink in your car/vehicle unless you are in a public place & unfit.

seamus wrote:

So if you want to drink in your car with your mates and you intend to get pissed, have the person with the keys sit in the back and leave the driver's seat vacant.

I wouldn't deem that safe either as the keys are in the drivers possession. Open to correction on that one though.

seamus

Trojan911 wrote: »

I wouldn't deem that safe either as the keys are in the drivers possession. Open to correction on that one though.

True, I would advise the "not at all" approach because why are you sitting in the car with your keys if not to drive it later on

Reloc8

Dublin_Gunner wrote: »

Check my post above - the Gardaí also have to prove it.

Nope. There is a presumption that if you are in charge of the car you are intending to drive. It is for you to prove the contrary, within the usual bounds of the criminal burden of proof.

Reloc8

Joebits wrote: »

is it illegal for the driver and passengers to drink in a car that is parked?
if the car isnt being driven(hence its parked) can you be accused of drink driving?

Yes. The potential offence pursuant to S. 50 of the 1961 Road Traffic Act as set out above, i.e. being intoxicated to an impermissible extent whilst being in charge of the car. People have been convicted of this for approaching the vehicle with their keys in their hand, and for putting the key into the door lock.

Dublin_Gunner

Reloc8 wrote: »

Nope. There is a presumption that if you are in charge of the car you are intending to drive. It is for you to prove the contrary, within the usual bounds of the criminal burden of proof.

My friends case would state otherwise.

They can 'charge' you with the offence, but unless they can prove beyond reasonable doubt that you intended to drive the car / did drive the car, you will not be convicted.

Reloc8

Dublin_Gunner wrote: »

My friends case would state otherwise.

They can 'charge' you with the offence, but unless they can prove beyond reasonable doubt that you intended to drive the car / did drive the car, you will not be convicted.

Incorrect. I don't doubt your friend's charge was dismissed. The onus however was on him to prove that he did not intend to drive, he having been charged ('charged'?) with an offence under S. 50, unless the case was dismissed for some other reason. That's just the way it is.

Thicktights

Reloc8 wrote: »

Incorrect. I don't doubt your friend's charge was dismissed. The onus however was on him to prove that he did not intend to drive, he having been charged ('charged'?) with an offence under S. 50, unless the case was dismissed for some other reason. That's just the way it is.

There is no onus on the accused to prove anything until the prosecution lead evidence to show an intent to drive. At that point the accusaed will have to negative the prosecutiion evidence.

Dublin_Gunner

Reloc8 wrote: »

Incorrect. I don't doubt your friend's charge was dismissed. The onus however was on him to prove that he did not intend to drive, he having been charged ('charged'?) with an offence under S. 50, unless the case was dismissed for some other reason. That's just the way it is.

An offence has to be proven to have taken place before you can be convicted. The onus is on the prosecutors (Gardaí, DPP etc) to prove an offence was committed by the defendant.

Only upon a successful prosecution is there an onus on a defendant to attempt to prove their innocence.

Ever hear of the phrase 'innocent until proven guilty'?

His case was dismissed.

UrbanFox

Is there a statutory definition and or case law to define what actually constitutes the specific act of "driving" as distinct from attempting to do so ?

Dublin_Gunner

UrbanFox wrote: »

Is there a statutory definition and or case law to define what actually constitutes the specific act of "driving" as distinct from attempting to do so ?

Driving???? I really don't think they need to define that! I would assume it would be 'being in control of a moving, mechanically propelled vehicle'.

Attempting to drive, or intent to drive however, is not so clear, as it would be very difficult to prove unless they had witnesses of someone in the drivers seat, with the keys in the ignition, or putting the keys in the ignition.

Reloc8

Thicktights wrote: »

There is no onus on the accused to prove anything until the prosecution lead evidence to show an intent to drive. At that point the accusaed will have to negative the prosecutiion evidence.

Read Section 50 RTA 1961 - see Trojan's post on previous page which quotes it in full. In fact under s. 50 once you are charged with the offence it is then presumed that you intended to drive until you show the contrary. I'm not making this up or anything.

Dublin_Gunner wrote: »

An offence has to be proven to have taken place before you can be convicted. The onus is on the prosecutors (Gardaí, DPP etc) to prove an offence was committed by the defendant.

Correct in principle. There are however many statutory presumptions in criminal law which place the onus on the accused to establish a defence. This is called the evidential burden of proof.

Dublin_Gunner wrote: »

Only upon a successful prosecution is there an onus on a defendant to attempt to prove their innocence.

I don't know where you are getting your information on this kind of assertion but anyway, on a successful prosecution the accused is convicted. You may be trying to refer to the situation which arises where on the closing of the prosecution evidence the accused is considered to have a case to answer.

Dublin_Gunner wrote: »

Ever hear of the phrase 'innocent until proven guilty'?

Heheh. Eh...yeah...I am somewhat familiar with the expression...oh wait that was some kind of rhetorical question wasn't it ? If I was a juror on a telly-lawyer-drama-comedy starting TJ Hooker I might be swayed.

Dublin_Gunner wrote: »

His case was dismissed.

I don't doubt that for a moment.

edit : look, in all seriousness, here is s. 50(4) 1961 RTA

"In a prosecution for an offence under this section, it shall be presumed, until the defendant shows—
( a ) that at the material time the circumstances were such that there was no likelihood of his driving the mechanically propelled vehicle so long as he remained unfit to drive, and.
( b ) that between his becoming unfit to drive and the material time he had not driven the mechanically propelled vehicle in a public place,
that he intended to drive or attempt to drive the mechanically propelled vehicle."

Read the bolded bits as one sentence first. Then read (a) and (b) as if they were sort of one long sentence all together.

Apologies if I sound intolerant - but that's just the way it is, broad & unfounded assertions/cheesy lines notwithstanding.

UrbanFox

Dublin_Gunner wrote: »

Driving???? I really don't think they need to define that! I would assume it would be 'being in control of a moving, mechanically propelled vehicle'.

Attempting to drive, or intent to drive however, is not so clear, as it would be very difficult to prove unless they had witnesses of someone in the drivers seat, with the keys in the ignition, or putting the keys in the ignition.

I don't quite follow this argument.

Look at S. 49 RTA 1961 "49.—(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle."

The offence defined there is grounded on the proposition that the defendant commits the proscribed act whilst in the act of driving. I thought that many driving offences required proof of actual driving by the defendant.

I would repeat UrbanFox's question and wonder if there is a statutory or case law definition of the act of driving.

Victor

Being parked is part of driving. Its defined in, I think, the 1961 act.

Grolschevik

Thought you might be interested in this, from a local paper. All identifying elements removed, to be sure to be sure.

JUDGE **** ***** dismissed a case against a ***** man of being drunk in charge when the case was heard in ***** District Court last Thursday. ***** ***** (22) with an address at *****, ***** was contesting the charge.

Garda ***** ***** said he had been on mobile patrol at about 3.30am on the morning of 19 October along the ***** Road when his attention was drawn to a parked small van, with its engine running and very loud music coming from it. When he spoke to the driver, he said he got a strong smell of alcohol from his breath and his speech was slurred.

Under questioning from Mr *****’s solicitor, ***** *****, Garda ***** said the defendant had told him he was sitting listening to the music. “He told me the battery would run flat if the engine wasn’t running. The music was extremely loud. He was also drinking from a plastic bottle and I had to require him to stop drinking.”

Garda ***** said that when Mr ***** was breath-tested, he returned a reading of 41mcg/100ml.

Giving evidence, Mr ***** said he had been on the way to a house party at the time. The reason why he had been drinking from the plastic bottle and sitting listening to the music was, “I put the whiskey into the bottle of coke so as to not draw attention to me. I told John (*****) I had a new CD and he said he wanted to hear it. We were in the car for about 15 minutes. I had to turn on the ignition or the two amps (speakers) would have killed the battery. I agree the music was loud, but I have a big sound system in the van.”

John ***** said he had been a passenger in the van at the time Garda ***** had come along. He said: “I am involved with a band and particularly interested in music. I said to Garda ***** (the observer in Garda ***** patrol car), ‘Look, it’s just an innocent situation. We’re just listening to this (new CD)’. I didn’t know what we were doing was an offence.”

Judge ***** said the defendant’s evidence had a resonance of truth about it and went on to dismiss the charges against him.

Dublin_Gunner

You do realise you did not have to take out the names, right? It was printed in a paper...


Perfect case example though.

Grolschevik

Actually hasn't been printed yet, so I thought I'd be extra careful!

Dublin_Gunner

Grolschevik wrote: »

Actually hasn't been printed yet, so I thought I'd be extra careful!

Ha ha fair enough!

Farcear

Reloc8 wrote: »

Nope. There is a presumption that if you are in charge of the car you are intending to drive. It is for you to prove the contrary, within the usual bounds of the criminal burden of proof.

Where does this presumption arise from?

neilthefunkeone

JohnK wrote: »

Surely if the car is parked and you're sitting there having a drink with someone there is neither attempt nor intent to drive the car?

Suppose he is hammered, accidently knocks the hand brake.. boom dead person!!!!

Guess all aspects have to be covered..

JohnK

True that is possible although I've never seen a handbreak that can simply be knocked; generally you'd have to depress the catch first then lower it which is unlikely to happen without intent.

Reloc8

Farcear wrote: »

Where does this presumption arise from?

Section 50(4), Road Traffic Act 1961. The bit where it says "in a prosecution for an offence under this section, it shall be presumed, until the defendant shows...".

As quoted in my previous post and also by another poster on the front page of this thread.