Strange situation

shanered

Can somebody clarify what actions are legally correct/incorrect.

Well this is my story, last weekend myself and two friends went down from dublin to a music festival down the country, was good craic and we all had a good time. After we went back to the car, where we were planning on sleeping until morning and we sobered up.
We were only in the car for about 5 minutes and some man came up to the window asking us to open up, my friend the driver asked why, the man said he was a garda and that we open up immediately, my friend opened up his window, but realised something wasn't right about this man's approach and then asked him for his badge, the man said he didn't have to show his badge, so my frend in that case he get his hands off the car and go away since he didn't have a badge. After 2 minutes, the garda actually arrived in a squad car, my friend had had his chair reclined and his keys in his pocket as he had said before anything that if he put the keys in the ignition he "could be done for it", when the garda arrived the proceeded to breathalize him and arrest him for drink driving, his charge sheet said intent to drive without attempting to drive a vehicle, the strange part was as he was getting arrested and he hadn't commited a crime to my knowledge, in fact the only crime I had witnessed was this man who was inpersonating a garda, which I asked to make an official complaint to the garda about this man who was still standing there, which the reply was to shut the f*** up and under section so-and-so of the public order act to leave the area, which is't the most professional response...
I left and my friend now has a court date in two weeks, any legal clarification on what was correct or wrong about this situation, many thanks in advance.

Wolfe Tone

In charge of a car while drunk, illegal afaik.


The gardai were professional and courteous as always I see.

MagicSean

shanered wrote: »

Can somebody clarify what actions are legally correct/incorrect.

Well this is my story, last weekend myself and two friends went down from dublin to a music festival down the country, was good craic and we all had a good time. After we went back to the car, where we were planning on sleeping until morning and we sobered up.
We were only in the car for about 5 minutes and some man came up to the window asking us to open up, my friend the driver asked why, the man said he was a garda and that we open up immediately, my friend opened up his window, but realised something wasn't right about this man's approach and then asked him for his badge, the man said he didn't have to show his badge, so my frend in that case he get his hands off the car and go away since he didn't have a badge. After 2 minutes, the garda actually arrived in a squad car, my friend had had his chair reclined and his keys in his pocket as he had said before anything that if he put the keys in the ignition he "could be done for it", when the garda arrived the proceeded to breathalize him and arrest him for drink driving, his charge sheet said intent to drive without attempting to drive a vehicle, the strange part was as he was getting arrested and he hadn't commited a crime to my knowledge, in fact the only crime I had witnessed was this man who was inpersonating a garda, which I asked to make an official complaint to the garda about this man who was still standing there, which the reply was to shut the f*** up and under section so-and-so of the public order act to leave the area, which is't the most professional response...
I left and my friend now has a court date in two weeks, any legal clarification on what was correct or wrong about this situation, many thanks in advance.

If the first guy was not in uniform he can only exercise his powers by showing his ID. He is not legally required to show his ID unless he wishes to make a legal demand on you under the road traffic act. If you have a problem with the way he acted then report it to the Ombudsman.

Your friend committed a crime under Section 50 of the Road Traffic Act. Drunk in charge of a vehicle.

Your attempt to make a complaint of impersonating a garda was pathetic. You were obviously just trying to be as difficult as you could.

Zambia

That a fast court turn around 1 Month from discovery to Court date...I'm impressed well done that man.

OP your friend can fight the charge in court.

McCrack

Seanbeag1 wrote: »

e way he acted then report it to the Ombudsman.

Your friend committed a crime under Section 50 of the Road Traffic Act. Drunk in charge of a vehicle.

To be fair that's a bit presumptuous to say.

The prosecution must show an attempt to drive to convict under S50 and keys not in the ignition together with the drivers seat reclined might be enough to convince a court the OP had no intention to drive the car.

OP engage a solicitor.

littlemac1980

McCrack wrote: »

To be fair that's a bit presumptuous to say.

The prosecution must show an attempt to drive to convict under S50 and keys not in the ignition together with the drivers seat reclined might be enough to convince a court the OP had no intention to drive the car.

OP engage a solicitor.

Not to throw the cat amongst the pigeons... but... I think s50 actually contains a presumption that the accused intended to drive.

Nevertheless, with two witnesses capable of giving evidence as to the circumstances that actually existed before the Garda arrived, if the account the OP has given is accurate and honest, then it should be relatively easy to knock the ball back to the Guards side of the court.

I still agree with McCrack though, your friend should get a Solicitor to look at his options re contesting the charge.

jblack

McCrack wrote: »

To be fair that's a bit presumptuous to say.

The prosecution must show an attempt to drive to convict under S50 and keys not in the ignition together with the drivers seat reclined might be enough to convince a court the OP had no intention to drive the car.

OP engage a solicitor.

Doubtful that the circumstances would be enough to convince a judge there was no intention.

If you do dispute you will most likely be asked "were you going to drive the car home the next day when you had sobered up"?

As a matter of interest how would you answer that question?

MagicSean

McCrack wrote: »

To be fair that's a bit presumptuous to say.

The prosecution must show an attempt to drive to convict under S50 and keys not in the ignition together with the drivers seat reclined might be enough to convince a court the OP had no intention to drive the car.

OP engage a solicitor.

Presumably he intended to drive home when he woke up.

jblack

Seanbeag1 wrote: »

Presumably he intended to drive home when he woke up.

Precisely.

Fine and convict.

SteelyDanJalapeno

If i go asleep in my car after i night on the beer can i be arrested??? :eek::eek:

MagicSean

TiltedBrain wrote: »

If i go asleep in my car after i night on the beer can i be arrested??? :eek::eek:

Yes. You see it might sound reasonable to you, have a few beers, sleep it off, drive home sober. But how do you know you are sober? How long are you prepared to wait? Will you have a breathaliser to show you are sober? Most people think they are sober after an hour of not drinking. What if you can't sleep? Will you take a chance and drive? Probably. I would say most people who sleep in their car and then drive home end up effectively driving drunk.

littlemac1980

jblack wrote: »

Doubtful that the circumstances would be enough to convince a judge there was no intention.

If you do dispute you will most likely be asked "were you going to drive the car home the next day when you had sobered up"?

As a matter of interest how would you answer that question?

I was under the impression that the intention referred to in the Section was of an intention to drive whilst still unfit to drive, and that an intention to drive the day after, or a week later, or a couple of months later isn't relevant.

Unless I'm mistaken, you appear to have a completely different opinion.

I can't immediately see the sense in your view, nor can I see the purpose it would serve to criminalise a person in such circumstances, though I stand to be corrected.

jblack

littlemac1980 wrote: »

I was under the impression that the intention referred to in the Section was of an intention to drive whilst still unfit to drive, and that an intention to drive the day after, or a week later, or a couple of months later isn't relevant.

Unless I'm mistaken, you appear to have a completely different opinion.

I can't immediately see the sense in your view, nor can I see the purpose it would serve to criminalise a person in such circumstances, though I stand to be corrected.

Respectfully and as this is a discussion forum, whilst I do see where you are coming from, the stock defence is "I was trying to be a responsible citizen by sleeping off a few beers and there were no taxis available - I was going to drive home in the morning/afternoon when I would be more than sober" - This denotes intention and the person "in charge" will be found guilty of an offence under s50RTA.

I did hear of a guy getting off as he told the judge he was going to get a taxi in the morning rather than drive the car as the car's battery was removed.

littlemac1980

jblack wrote: »

Respectfully and as this is a discussion forum, whilst I do see where you are coming from, the stock defence is "I was trying to be a responsible citizen by sleeping off a few beers and there were no taxis available - I was going to drive home in the morning/afternoon when I would be more than sober" - This denotes intention and the person "in charge" will be found guilty of an offence under s50RTA.

I did hear of a guy getting off as he told the judge he was going to get a taxi in the morning rather than drive the car as the car's battery was removed.

OK I understand what you are saying.

Clearly the second example would not amount to the commission of an offence, as the car was incapable of being driven.

In relation to the first example, I see you've reiterated your view of what amounts to the necessary intention, and that consequently you are of the view it is a certainty in those circumstances that an accused would always be found guilty.

Well I have no reason to change my view based on your response, so we'll have to agree to disagree (which I find myself doing quite a bit on here lately), and hopefully some other posters will assist to break the deadlock.

jblack

littlemac1980 wrote: »

In relation to the first example, I see you've reiterated your view of what amounts to the necessary intention, and that consequently you are of the view it is a certainty in those circumstances that an accused would always be found guilty.

Careful: not quite what I have said.

What I am trying to get across is that where a Judge finds that a person is drunk in charge of a car it is very difficult to argue that there was no intention.

littlemac1980

jblack wrote: »

Respectfully and as this is a discussion forum, whilst I do see where you are coming from, the stock defence is "I was trying to be a responsible citizen by sleeping off a few beers and there were no taxis available - I was going to drive home in the morning/afternoon when I would be more than sober" - This denotes intention and the person "in charge" will be found guilty of an offence under s50RTA.

I did hear of a guy getting off as he told the judge he was going to get a taxi in the morning rather than drive the car as the car's battery was removed.

Ok, fair enough, that's what I had understood from the above, but I accept you meant it differently than it may appear.

As regards the difficulty an accused may face, I completely accept it would be difficult in many circumstances, particularly in light of the presumption which I had initially focused upon.

Anyway, its that particular intention, as required by the offence, that I hope will generate more discussion.

source

jblack wrote: »

Careful: not quite what I have said.

What I am trying to get across is that where a Judge finds that a person is drunk in charge of a car it is very difficult to argue that there was no intention.

It's actually written into the Act that there is a presumption of intent to drive.

(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.

From Section 50 RTA 1961 (as inserted by Section 11 RTA '94)

So once the person who is sitting in the drivers seat with the keys is intoxicated, then they are guilty of the offence unless they can prove that they did not intend to drive. Something which I would say is very hard to do, unless of course like the story earlier, they can prove that at the material time it was not a MPV, due to some fault or defect that would stop it running.

Marcusm

source wrote: »

It's actually written into the Act that there is a presumption of intent to drive.



From Section 50 RTA 1961 (as inserted by Section 11 RTA '94)

So once the person who is sitting in the drivers seat with the keys is intoxicated, then they are guilty of the offence unless they can prove that they did not intend to drive. Something which I would say is very hard to do, unless of course like the story earlier, they can prove that at the material time it was not a MPV, due to some fault or defect that would stop it running.

OP, you should have a read o f this interesting paper which summarises aspects of the law. Note that the courts have held that the fact that a "driver" was asleep does not preclude being in charge. It all comes down to intention however ad perhaps evidence can be adduced to the effect that there was to be such a long period before any prospect of driving. Ultimately a solicitor should be involved although I would take it from the contributions above from some with AGS experience that these will be batted away by the District Judge. I guess your friend would be unlikely to appeal to a higher court where more attention would be aid to parsing the language of the statute. I guess "intention" is a question of fact rather than law.

MapForJ

Seanbeag1 wrote: »

You were obviously just trying to be as difficult as you could.

how do you know?

MapForJ

jblack wrote: »

I do see where you are coming from, the stock defence is "I was trying to be a responsible citizen by sleeping off a few beers and there were no taxis available - I was going to drive home in the morning/afternoon when I would be more than sober" - This denotes intention and the person "in charge" will be found guilty of an offence under s50RTA.
.

intention of what please?

if he intended to "drive home in the morning/afternoon when I would be more than sober" how is this a bad intention?

KingIsabella

Christ on a bike and mary on the handlebars what is this world coming to.

"I'm arresting you, without any previous knowledge of you or your character, on the basis that at face value you may or may not, 50/50 drive drunk tomorrow"

In an ideal world: drunk tank, sober up, out you go. Common sense. Innocent until proven guilty me arse. World goosed folks.


Next time ill have to put me keys in the boot when im sleeping in my car.

MagicSean

MapForJ wrote: »

intention of what please?

if he intended to "drive home in the morning/afternoon when I would be more than sober" how is this a bad intention?

Because in all likelyhood when the decision to drive is made they will still be over the limit.

jblack

MapForJ wrote: »

intention of what please?

if he intended to "drive home in the morning/afternoon when I would be more than sober" how is this a bad intention?

Intention to drive.

It may seem to be a sensible intention, but the judicial interpretation is more often than not that a person in drunk charge of a car has the intention to drive and therefore guilty of an offence under s50. In the legislation it actually imposes a presumption that the person charged with s50 must rebut of their intention to drive. A sort of guilty until proven innocent facet of that particular section of the legislation.

I think this is fairly clear from the posts and to go further into specifics is bordering on legal advice.

Our man in Havana

OP, go get a solicitor now.

cml387

Supposing hypothetically that the person,after being arrested,arranged to have his car towed to his house.

In court,he presented the evidence of having had the car towed as proof that the car was undriveable at the time of the offence.

Did the guard at the time of arrest make any effort to prove the car was driveable?

MagicSean

cml387 wrote: »

Supposing hypothetically that the person,after being arrested,arranged to have his car towed to his house.

In court,he presented the evidence of having had the car towed as proof that the car was undriveable at the time of the offence.

Did the guard at the time of arrest make any effort to prove the car was driveable?

That would not be proof the car was not driveable. He would need a mechanic as a witness to say their was some defect.

jblack

MapForJ wrote: »

intention of what please?

if he intended to "drive home in the morning/afternoon when I would be more than sober" how is this a bad intention?

cml387 wrote: »

Supposing hypothetically that the person,after being arrested,arranged to have his car towed to his house.

In court,he presented the evidence of having had the car towed as proof that the car was undriveable at the time of the offence.

Did the guard at the time of arrest make any effort to prove the car was driveable?

Again to reiterate - the Gards don't have to prove anything, it is up to the accused to prove he had no intention to drive, and as very clearly laid out in this thread that is extremely difficult.

shanered

Thanks for all the discussion, he is going to get a solicitor but since its in a different county he has to get one from there, he is going to get one though. And on being difficult, maybe, but I was just pointing out the actual crime that was being committed at the time. I feel I was only trying to defend my friend and if anybody was being difficult it was the initial man who came over claiming to be a guard, which he may have been but refused to show badge, and the three other guards that arrived and started recking an otherwise nice situation after a good night and a good few drinks, we were to sleep it off, wake up get breakfast and listen to some more music and drive home. I see that this whole charge is a strange one and a bit subjective. Its just a shame when its an almost guilty until you prove yourself innocent thing.
Hopefully benifit of doubt and common sense prevails here, but thats not always the case though, I will keep you posted on outcome though..

MagicSean

shanered wrote: »

Thanks for all the discussion, he is going to get a solicitor but since its in a different county he has to get one from there, he is going to get one though. And on being difficult, maybe, but I was just pointing out the actual crime that was being committed at the time. I feel I was only trying to defend my friend and if anybody was being difficult it was the initial man who came over claiming to be a guard, which he may have been but refused to show badge, and the three other guards that arrived and started recking an otherwise nice situation after a good night and a good few drinks, we were to sleep it off, wake up get breakfast and listen to some more music and drive home. I see that this whole charge is a strange one and a bit subjective. Its just a shame when its an almost guilty until you prove yourself innocent thing.
Hopefully benifit of doubt and common sense prevails here, but thats not always the case though, I will keep you posted on outcome though..

So you are saying you honestly believed that the first man was not a Garda but a man impersonating a Garda. Despite the fact that he was able to have a patrol car come and assist him. Did you really believe he was a civilian impersonating a Garda?

You say you were gonna sleep, have food, listen to music and then drive off. How long were you going to sleep? How much had the driver had? How long were you going to listen to music before you decided to head for home? Is it not likely that he would still be over the limit? Never mind about his hangover and fatigue.

shanered

Seanbeag1 wrote: »

So you are saying you honestly believed that the first man was not a Garda but a man impersonating a Garda. Despite the fact that he was able to have a patrol car come and assist him. Did you really believe he was a civilian impersonating a Garda?

You say you were gonna sleep, have food, listen to music and then drive off. How long were you going to sleep? How much had the driver had? How long were you going to listen to music before you decided to head for home? Is it not likely that he would still be over the limit? Never mind about his hangover and fatigue.

I had all reason not to believe that the first man was not a guard, he refused to show his badge when requested, and he didn't radio in assistance, so there is all reason to believe that this man was not a guard, he didn't prove anything of any reasonable evidence that he was an acting member of the force.
And I don't think I need to answer these condencending questions, but its reasonable to believe that it takes about roughly one hour per drink drank for your body to filter alcohol through your body, so after 7 hours sleep and and morning spent eating and wondering around the town we were visting for another hour or two that he would have been fine.
Either way the whole situation of is that we hadn't planned to the hour what we were going to do when we woke up, usually just see how things play out and whenever my friend thought he was under the legal limit he was to drive home, whenever that be. The was absolutely no intention to drive while unfit, only to use the car as a place to rest while drunk.
But its a presumable thing to say he was going to drive while unfit and it is clearly a situation where the worst is presumed while the best intentions still were there.

shaneybaby

shanered wrote: »

And I don't think I need to answer these condencending questions, but its reasonable to believe that it takes about roughly one hour per drink drank for your body to filter alcohol through your body, so after 7 hours sleep and and morning spent eating and wondering around the town we were visting for another hour or two that he would have been fine.

Not trying to get up your back but it's one standard drink per hour (half a pint). So seven hours is roughly 3 1/2 cans. I'm not much of a drinker but even i'd bring more than that to a festival....
Number 9

shanered

I stand corrected, but non the less, is he guilty if he just wasn't going to drive until he knew himself to be fit to drive, I understand the angle being taken here, its all about his intention. Would the argument not stand that he was simply going to wait until he was fit, whenever that be.
I get the whole thing that he may have driven while still hung-over the next day, but the time of that decision was a long time away, so technically he had no intent to drive while drunk if you understand.
I know this and he is not one to drive while drunk, especially with as much drink on him as when he was arrested for, which carries a 3 year min ban on him driving.
There was no immediate intention nor any future intenstion to drive while drunk. Though its true anybody could just decide that he was going to, as the guards clearly showed, but for when somebody actually wasn't going to, where do they stand?
Is it just me or can this whole law be used in a very unfair manner against completely innocent parties?
Which I still believe my friend to be.

MagicSean

shanered wrote: »

I had all reason not to believe that the first man was not a guard, he refused to show his badge when requested, and he didn't radio in assistance, so there is all reason to believe that this man was not a guard, he didn't prove anything of any reasonable evidence that he was an acting member of the force.

I didn't ask if you had reason to believe. I asked if you honestly believed.

shanered wrote: »

And I don't think I need to answer these condencending questions, but its reasonable to believe that it takes about roughly one hour per drink drank for your body to filter alcohol through your body, so after 7 hours sleep and and morning spent eating and wondering around the town we were visting for another hour or two that he would have been fine.
Either way the whole situation of is that we hadn't planned to the hour what we were going to do when we woke up, usually just see how things play out and whenever my friend thought he was under the legal limit he was to drive home, whenever that be. The was absolutely no intention to drive while unfit, only to use the car as a place to rest while drunk.
But its a presumable thing to say he was going to drive while unfit and it is clearly a situation where the worst is presumed while the best intentions still were there.

You don't seem to get it. A drunk person does not exercise good reasoning. So how would he know if he was unfit to drive? When he felt clear headed? people twice the limit feel clear headed.

shanered

To be honest, no I didn't believe him to be a guard, I know that there is a small chance, but my inclination would be to think he was some random chap with a problem.
And I know he had no intention, he was clear headed enough to say that he was not going to put the keys in the ignition incase the guards where to come before any of this happened.
So by your argument is that by simply the fact that he was drunk, he was going to commit the crime...because his judgment would have been impaired?
I don't get this reasoning. Can you even see where I am coming from?
He simply wasn't going to drive while drunk.
Your saying that his whole argument is void simply because of him being drunk.
Even if, he had no intention....

McCrack

Seanbeag1 wrote: »

I didn't ask if you had reason to believe. I asked if you honestly believed.



You don't seem to get it. A drunk person does not exercise good reasoning. So how would he know if he was unfit to drive? When he felt clear headed? people twice the limit feel clear headed.

What does any of that matter in the context of a S50 prosecution and the particular facts that the OP has laid out?

If you are of the opinion it does clearly explain.

MagicSean

McCrack wrote: »

What does any of that matter in the context of a S50 prosecution and the particular facts that the OP has laid out?

If you are of the opinion it does clearly explain.

It's the reasoning behind a prosecution of this nature. The person is likely to drive while drunk, maybe not immediately but whenever they wake up or feel they have a "clear head".

littlemac1980

Seanbeag1 wrote: »

It's the reasoning behind a prosecution of this nature. The person is likely to drive while drunk, maybe not immediately but whenever they wake up or feel they have a "clear head".

But if as the OP has pointed out, the intention was to get up, have some food, go fora walk about town - all the next day, then that would clearly, in my view, displace the presumption, and require the Prosecution to prove that there was an intention to drive while unfit. Surely thats the crux. Otherwise a person (holding a weekend ticket) drunk and asleep at a festival in a camper van on a friday night, could be charged and found guilty. That doesn't make any sense.

source

littlemac1980 wrote: »

But if as the OP has pointed out, the intention was to get up, have some food, go fora walk about town - all the next day, then that would clearly, in my view, displace the presumption, and require the Prosecution to prove that there was an intention to drive while unfit. Surely thats the crux. Otherwise a person (holding a weekend ticket) drunk and asleep at a festival in a camper van on a friday night, could be charged and found guilty. That doesn't make any sense.

I'll redirect you back to my post here. The driver will get an opportunity to have his say in court. Where he can put forward his defence, as per the section I quoted in the post I've linked, there is no requirement on a member of AGS to prove intent. It is down to the accused to prove that he didn't intend to drive. Again he'll get the opportunity to do that when he is in court.

Also sitting in the driver seat of a car is very different to lying on a bed in a camper van.

Dayo93

Seanbeag1 wrote: »

It's the reasoning behind a prosecution of this nature. The person is likely to drive while drunk, maybe not immediately but whenever they wake up or feel they have a "clear head".

Sure isnt that a decision most people make on a morning after a night on the beer weather you sleep in someones house or in your car

Grolschevik

source wrote: »

Also sitting in the driver seat of a car is very different to lying on a bed in a camper van.

a) So there'd be a difference if he'd been in the back seat?

b) Or had given the keys to a passenger?

c) What about a passenger without a licence or insurance?

d) If we're talking about presumption of intent here, could the passenger then have been done for drunk-in-charge and no licence?

McCrack

Seanbeag1 wrote: »

It's the reasoning behind a prosecution of this nature. The person is likely to drive while drunk, maybe not immediately but whenever they wake up or feel they have a "clear head".

Its not. Drink driving or S50 "drunk in charge" is a strict liability offence. What you have been describing is completely superficial. S50 there is a rebuttable presumption that the accused intended to drive the car. A situation like having the keys in ones pocket, being asleep and the seat reclined are all factors which assist an accused in rebutting the presumption (and in my view most likely successfully)

Things like potential hangover, fatigue, time the alarm was set to wake you up to drive on etc etc are irrelevant.

http://en.wikipedia.org/wiki/Strict_liability_(criminal)

source

Grolschevik wrote: »

a) So there'd be a difference if he'd been in the back seat?

b) Or had given the keys to a passenger?

c) What about a passenger without a licence or insurance?

d) If we're talking about presumption of intent here, could the passenger then have been done for drunk-in-charge and no licence?

A camper van is designed for sleeping in a car is not. Going off the OP I'm presuming that the guy was sitting in the drivers seat. Simples.

Marcusm

shanered wrote: »

I stand corrected, but non the less, is he guilty if he just wasn't going to drive until he knew himself to be fit to drive, I understand the angle being taken here, its all about his intention. Would the argument not stand that he was simply going to wait until he was fit, whenever that be.
I get the whole thing that he may have driven while still hung-over the next day, but the time of that decision was a long time away, so technically he had no intent to drive while drunk if you understand.
I know this and he is not one to drive while drunk, especially with as much drink on him as when he was arrested for, which carries a 3 year min ban on him driving.
There was no immediate intention nor any future intenstion to drive while drunk. Though its true anybody could just decide that he was going to, as the guards clearly showed, but for when somebody actually wasn't going to, where do they stand?
Is it just me or can this whole law be used in a very unfair manner against completely innocent parties?
Which I still believe my friend to be.

The problem is that the law as it currently stands does not deal with intent to drive while unfit but simply intent to drive. When the RTA 1961 was first introduced, it was possible to avoid a conviction if the person could establish that "there was no likelihood of his driving the mechanically propelled vehicle so long as he remained unfit to drive" s50(4) RTA 1961 (as originally introduced).

However, this was amended in 1964 to the current language. The difficulty with this was pointed out in the DPP v Byrne case (http://www.bailii.org/ie/cases/IESC/2001/97.html) which is well worth a read if only to see the extremes of some drivers - he was found parked on a hard shoulder late at night with the lights on and the ignition two notches across but so soundly asleep that he had to be shaken awake - basically described as a blackout, he hadn't intended to sleep. He claimed that he could have no intention to drive while soundly asleep. He was convicted.

Based on a reading of this it seems difficult for a driver to defeat the law. Seems like the best way is to give up "charge" of the car to a non driver or a non drinker and sit in one of the other seats to sleep.

OP - your friend needs to see a solicitor asap.

MagicSean

Dayo93 wrote: »

Sure isnt that a decision most people make on a morning after a night on the beer weather you sleep in someones house or in your car

Yes, and quite often people end up drink driving as they do not allow sufficient time for the alcohol levels to go down to legal limits.

McCrack wrote: »

Its not. Drink driving or S50 "drunk in charge" is a strict liability offence. What you have been describing is completely superficial. S50 there is a rebuttable presumption that the accused intended to drive the car. A situation like having the keys in ones pocket, being asleep and the seat reclined are all factors which assist an accused in rebutting the presumption (and in my view most likely successfully)

Things like potential hangover, fatigue, time the alarm was set to wake you up to drive on etc etc are irrelevant.

I was talking about the motivations behind prosecutions of this nature.

littlemac1980

source wrote: »

I'll redirect you back to my post here. The driver will get an opportunity to have his say in court. Where he can put forward his defence, as per the section I quoted in the post I've linked, there is no requirement on a member of AGS to prove intent. It is down to the accused to prove that he didn't intend to drive. Again he'll get the opportunity to do that when he is in court.

Also sitting in the driver seat of a car is very different to lying on a bed in a camper van.

Thanks Source, but as you will be aware, having read through the thread, it was I who first highlighted the presumption in s50, I'll redirect you back to my post here so I'm well aware of the presumption, and what effect that has. I think that has been clearly pointed out and accepted by all.

Continuing to refer to the presumption, is effectively skipping around the real issue, which is the requisite intent required by the offence.

Clearly there is a difference in circumstances between a person asleep in the back seat of a car, or a person asleep in a camper van, to someone asleep, or sitting drunk in the driver seat. That's obvious.

However, (aside from being evidence of intention - which as you correctly point out is initially irrelevant, unless the accused can displaced the presumption) that really relates only to the Actus Reus - being in charge of a vehicle while being unfit to drive. Considering there is case law of authority to show that a person walking toward a car with the keys can be considered 'in charge of a car', I don't think that there would be any doubt in any of those circumstances that the Actus Reus could be readily established.

However, going back to the issue of Intention, I still believe, and have been given no reason (based on the further discussion that has taken place) that the following statements are incorrect.

Seanbeag1 wrote: »

Presumably he intended to drive home when he woke up.

jblack wrote: »

Precisely.

Fine and convict.

Do you have a view on that point?

McCrack

Seanbeag1 wrote: »

I was talking about the motivations behind prosecutions of this nature.

Motivations don't come into it and it's only confusing this thread and indeed the OP, S49 or S50 are concerned with proofs and I and some others have touched on them already.

If anything can come out of this is that the OP (or his/her friend) needs to talk to a solicitor. I expect the OP can sense what I and others have been saying without breaking the charter.

ResearchWill

Main case in this area is DPP v Byrne [2002] 2 IR 297, intention to drive is presumed that is an intention to drive while intoxicated to such an extent etc., it will be necessary to engage a solicitor and have your friends give evidence. You said you where at a music festival, if for example it was a 2 day festival and this was night 1 and you had an intention to get up the next morning and continue the party you may have rebutted the presumption. But get proper advice based on all your facts, and your copy statements.

MagicSean

McCrack wrote: »

Motivations don't come into it and it's only confusing this thread and indeed the OP, S49 or S50 are concerned with proofs and I and some others have touched on them already.

If anything can come out of this is that the OP (or his/her friend) needs to talk to a solicitor. I expect the OP can sense what I and others have been saying without breaking the charter.

The op mentioned that the driver intended to drive the following morning. I wanted to discuss this aspect. I'm sorry if this didn't fit in to your view on how the thread should go.

McCrack

Seanbeag1 wrote: »

The op mentioned that the driver intended to drive the following morning. I wanted to discuss this aspect. I'm sorry if this didn't fit in to your view on how the thread should go.

Right well I'm coming from a lawyer angle and experience teaches me cut the b/s and superficial out of the problem scenario a poster presents with and zone in on the relevant issues and come up with practical advice (without breaking the charter) as I would do in real life with clients. That was my angle and always is on this forum.

MagicSean

McCrack wrote: »

Right well I'm coming from a lawyer angle and experience teaches me cut the b/s and superficial out of the problem scenario a poster presents with and zone in on the relevant issues and come up with practical advice (without breaking the charter) as I would do in real life with clients. That was my angle and always is on this forum.

Good for you.

jblack

Can't figure out how to multi-quote:

On littlemac's above post; taking the OP' set of facts and the question raised about what offence has been committed (leaving aside the Garda with no I.D. issue)

Any intention will always depend on the surrounding circumstances. As s50 is based around intention and being in charge rather than the actual act of driving there is a burden placed on the accused to discharge that there was in fact no intention. Intending to drive home the next morning is still intention to drive.

This burden is quite onerous and an unfamiliarity of the law leaves people who are convicted of such an offence with a sense of being hard done by.

From the facts presented it does sound analogous to many defences offered to rebut the presumption. I would proffer that this has a likelihood of being unsuccessful due to the presumption being difficult to rebut.

I do think that there should be more awareness created of the offence. With no prior knowledge most people are shocked to learn that they can be done for sitting in their cars listening to music or sleeping a few beers off.