Drunk in charge of a vehicle.

nudger

Can you be arrested for Drunk Driving if you are sitting in your car with the engine running in a privately owned car park of a hotel after having a few drinks.
I'm not talking about driving into the car park and stopping, this would be walking from the hotel bar into the car while being watch by AGS.

Corruptable

Yes, I believe so. You're in charge of a mechanically propelled vehicle.

Wile E. Coyote

I'd imagine you could charged with being drunk in charge of the car as opposed to drunk driving.

ResearchWill

nudger wrote: »

Can you be arrested for Drunk Driving if you are sitting in your car with the engine running in a privately owned car park of a hotel after having a few drinks.
I'm not talking about driving into the car park and stopping, this would be walking from the hotel bar into the car while being watch by AGS.

Simple answer is yes, the car park is a public place under the RTA acts. It is an offence to be in charge of a MPV with the intention to drive. The burden of proof in relation to intention is passed to the defendant to prove he had no intention to drive.

There are loads of threads on this issue on boards.

“‘public place’ means—

(a) any public road, and

(b) any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge;”;

Section 5 of the 2010 Act

5.— (1) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle

nudger

So you can be done for sitting in your car in your drive way with drink taken?

Corruptable

nudger wrote: »

So you can be done for sitting in your car in your drive way with drink taken?

I think the driveway one is different as it's not a public place.

If you were followed by gardai to your driveway, then yes. But I don't think they could just enter your driveway when your in your car without any reason to suspect you're intoxicated.

Should note that intoxication isn't limited to alcohol, it includes drugs and even medication.

Hooch

nudger wrote: »

So you can be done for sitting in your car in your drive way with drink taken?

Your drive isn't a public place. A hotel carpark is.

nudger

This is a small country hotel that has a "normal" car park and an over flow one that only opens when very busy.
All the land around it is owned by the Farmer who own's the hotel as well, is this not Private property?

rebecca 30

There was a guy done in Galway a couple of years back , been drunk in his car , in his own driveway , He had had a fight with the wife and just sat out in his car and turn it on , As far as I know He didn't move the car got a 3 year ban and €500 fine ,

ResearchWill

DpP v Byrne [2002] 2 IR 397 is a good case on this issue.

Corruptable

nudger wrote: »

This is a small country hotel that has a "normal" car park and an over flow one that only opens when very busy.
All the land around it is owned by the Farmer who own's the hotel as well, is this not Private property?

From the Road Traffic Act, 1961 (the principle piece of legislation under which drunk driving is charged) as was quoted above:

'public place’ means—

(a) any public road, and

(b) any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge;”;

MarkR

nudger wrote: »

This is a small country hotel that has a "normal" car park and an over flow one that only opens when very busy.
All the land around it is owned by the Farmer who own's the hotel as well, is this not Private property?

Not private property if the public are allowed to drive into it. If this is you, i'd recommend getting some proper legal advice.

ResearchWill

nudger wrote: »

This is a small country hotel that has a "normal" car park and an over flow one that only opens when very busy.
All the land around it is owned by the Farmer who own's the hotel as well, is this not Private property?

Read the defination, if the public have a right to access for a fee or free it's a public place. If you have a right to be there as any other member of the public then it's public, if not its private.

Corruptable

For those who don't have access to Case Reports, here is the headnote from DPP v Byrne:

The accused was convicted in the District Court of the offence of being in charge of a mechanically propelled vehicle with intent to drive while he had in his body a quantity of alcohol in excess of that permitted by law, contrary to s. 50(3) of the Road Traffic Act, 1961, as inserted by s. 11 of the Road Traffic Act, 1994. On appeal in the Circuit Court, the judge found as a fact that a garda could see the accused asleep in the driver's seat of his car, while the keys were in the ignition, turned "two clicks" to ready. Having awoken the accused, the garda formed the opinion that he had consumed intoxicating liquor and arrested him under s. 50(10) of the Road Traffic Act, 1961, as amended, for being drunk in charge of a car. The Circuit Court Judge stated a case to the Supreme Court as to (i) whether he was entitled to hold that the accused was in charge of a mechanically propelled vehicle in a public place with intent to drive on the facts as set out above and (ii) whether he could consider the intentions of the accused before he went to sleep.

Held by the Supreme Court (Keane C.J., Murray and Fennelly JJ.), in answering the case stated in the affirmative, 1, that, where the car was parked on the hard shoulder with the lights turned on and the accused was asleep in the driver's seat with the keys in the ignition turned to ready, the Circuit Court Judge was entitled to hold that the accused was in charge of the motor car when the garda arrived at the scene.

2. That, if the court was satisfied that the accused was in charge of the motor vehicle, the presumption of intention to drive pursuant to s. 50(8) of the Road Traffic Act, 1961, as amended, arose and it was for the accused to rebut that presumption; in deciding the issue, it was open to the Circuit Court Judge to consider the intention of the accused before falling asleep.

3. That there may be certain inferences which can be drawn as to the accused's intentions before he fell asleep and the Circuit Court Judge was free to consider them.

All credits to Eilis Brennan, Barrister who compiled the case report.

ResearchWill

rebecca 30 wrote: »

There was a guy done in Galway a couple of years back , been drunk in his car , in his own driveway , He had had a fight with the wife and just sat out in his car and turn it on , As far as I know He didn't move the car got a 3 year ban and €500 fine ,

If this happened, and he had a lawyer, I would not be happy if I was him. I can not see how a driveway is a public place. Are you sure it was not that he drove into his driveway that would be different, as long as AGS formed the opinion before he entered the driveway.

Can you provide a link to the case.

nudger

MarkR wrote: »

Not private property if the public are allowed to drive into it. If this is you, i'd recommend getting some proper legal advice.

No, thankfully so as a finish to this and thank's for the advise, if someone were to find themselves in this position and to be found over the limit a good bit, what might they be looking at.

ResearchWill

nudger wrote: »

No, thankfully so as a finish to this and thank's for the advise, if someone were to find themselves in this position and to be found over the limit a good bit, what might they be looking at.

All depends on the amount of alcohol in system and if learner permit or professional driver or full licence. But minimum for first offence on max is 3 year ban plus fine plus endorsement plus test expended if blood or urine.

If someone is in this position I would strongly advise to get good solicitor.

nudger

ResearchWill wrote: »

All depends on the amount of alcohol in system and if learner permit or professional driver or full licence. But minimum for first offence on max is 3 year ban plus fine plus endorsement plus test expended if blood or urine.

If someone is in this position I would strongly advise to get good solicitor.

First offence, full licence, think it will be in the second of the 3 categories.
Didn't do the breath test, wen't to the station for a urine test.
Needs car for job.
Has legal advise who thinks 2 year is on the cards, just thought i'd throw it out there.

ResearchWill

nudger wrote: »

First offence, full licence, think it will be in the second of the 3 categories.
Didn't do the breath test, wen't to the station for a urine test.
Needs car for job.
Has legal advise who thinks 2 year is on the cards, just thought i'd throw it out there.

Yup I it is in the middle cat then 2 year minimum ban, most DJ's give no more than the minimum, in this case 2 years. It matters not that you need the car once convicted then have to get the minimum ban.

spurs2010

There are two keys to a successful defence in this case 1. Get a good court solicitor who does such cases. 2. Did you intend to drive at the point of detection ?

nudger

I believe he was leaving the car over night because he knew he was over the limit but wanted to move it to a safer spot at the back of the hotel, hadn't moved the car but not sure what was said to AGS who had been parked up in the car park waiting.

ResearchWill

nudger wrote: »

I believe he was leaving the car over night because he knew he was over the limit but wanted to move it to a safer spot at the back of the hotel, hadn't moved the car but not sure what was said to AGS who had been parked up in the car park waiting.

Well if he said that to AGS he has proved intention to drive.

nudger

I know, don't know what he said, not sure he does either, cuff went on for the first time, back to the station. Done the urine test, put in a cell, parents arrive next morning, given the second sample for himself that's it.

ResearchWill

nudger wrote: »

I know, don't know what he said, not sure he does either, cuff went on for the first time, back to the station. Done the urine test, put in a cell, parents arrive next morning, given the second sample for himself that's it.

Tell him not to open the second sample, store in a fridge, and get tested straight away. His local solicitor will be able to arrange that.

nudger

Will do, his solicitor has probably already done but just in case.
By the way, are you due a phone call at the station/should you be told this?
Are you entitled to a solicitor at the station if you want one and again should you be told this, he wasn't.

He has heard nothing from AGS, summons wise, results from test, how long should he expect to wait to hear from them?

ResearchWill

nudger wrote: »

Will do, his solicitor has probably already done but just in case.
By the way, are you due a phone call at the station/should you be told this?
Are you entitled to a solicitor at the station if you want one and again should you be told this, he wasn't.

He has heard nothing from AGS, summons wise, results from test, how long should he expect to wait to hear from them?

He is entitled to be told he has a right to a solicitor, and a doctor if he so wishes. I can say that reguardles of what your friend remembers the custody record will record all of that happened. Also the member in charge will say he complied with the custody regulations.

He will get the results in the post of the sample usually take a few weeks. The AGS have upto 6 months to request a summons, and then they can serve it, usual is they leave summons till month 5.

MagicSean

It is not necessary for them to wait for a solicitor to arrive before taking a sample. A solicitor cannot advise a client not to give a sample as it is a legal demand. Ususally a person will have been processed before a solicitor even gets to the station.

nudger

Just an update, If you were to have a urine sample showing 260 would that be a 2 or a 3 year ban and what kind of a fine do you think would be handed out.

Think I have an idea but would like your opinion.

Thanks.

ResearchWill

nudger wrote: »

Just an update, If you were to have a urine sample showing 260 would that be a 2 or a 3 year ban and what kind of a fine do you think would be handed out.

Think I have an idea but would like your opinion.

Thanks.

Over 200 is min 3 year ban, 260 is very high judge could go higher than 3 if he wishes. Fine is hard to say as different districts give different fines but I would guess the usual is between 500 to 1000 but could easily go higher depending on other factors.

nudger

Thanks a lot for all your help.

nudger

ResearchWill wrote: »

He is entitled to be told he has a right to a solicitor, and a doctor if he so wishes. I can say that reguardles of what your friend remembers the custody record will record all of that happened. Also the member in charge will say he complied with the custody regulations.

He will get the results in the post of the sample usually take a few weeks. The AGS have upto 6 months to request a summons, and then they can serve it, usual is they leave summons till month 5.

Hi ResearchWill

Sorry for bringing up an old thread, but the 6 months are nearly up from the incident (December) and no word from AGS since the result letter in January.

On a technicality, might he be in the clear?

ResearchWill

nudger wrote: »

Hi ResearchWill

Sorry for bringing up an old thread, but the 6 months are nearly up from the incident (December) and no word from AGS since the result letter in January.

On a technicality, might he be in the clear?

The six monts time limit is the time to request the issuing of a summons. Once the request is made within 6 months then no issue. There is no set limit to serve the summons. But of course delay can be raised if it is not served promptly. There are some cases saying a hearing 2 years 4 months post event is too long.

As I also said they usually leave it till the 5th month to request the summons.

nudger

Thanks for the quick response and clarification.

He is thinking, like a lot of young guys to head to Auz or Canada, would the driving offence stop him getting in?

Just finished his trade and is working the experience time off ( matter of weeks)
Time is not his friend due to the offence.

Would the pending case come up if he was trying to get in? (know the answer as I write) If he said no would they have it on file?

He's a good guy, just needs a break, one stupid mistake.

ResearchWill

nudger wrote: »

Thanks for the quick response and clarification.

He is thinking, like a lot of young guys to head to Auz or Canada, would the driving offence stop him getting in?

Just finished his trade and is working the experience time off ( matter of weeks)
Time is not his friend due to the offence.

Would the pending case come up if he was trying to get in? (know the answer as I write) If he said no would they have it on file?

He's a good guy, just needs a break, one stupid mistake.

Most countries in visa applications exclude driving offences. The USA is a bit confused with some saying drink driving should be disclosed, but most recent decisions say drink driving is not an offence of moral turpitude.

In any case your friend currently does don't need to worry as he has no conviction. He should of course answer all questions on visa application truthfully.

PCPhoto

nudger wrote: »

Thanks for the quick response and clarification.

He is thinking, like a lot of young guys to head to Auz or Canada, would the driving offence stop him getting in?

Just finished his trade and is working the experience time off ( matter of weeks)
Time is not his friend due to the offence.

Would the pending case come up if he was trying to get in? (know the answer as I write) If he said no would they have it on file?

He's a good guy, just needs a break, one stupid mistake.

he may have a problem if he intends looking for garda clearance - pulse system might highlight the recent events !

As researchwill has said he has not been convicted of anything (yet) ...so innocent until guilty - but if he receives a court summons after he leaves the country - is he going to return ?

nudger

My guess is he would return after a year or two, would there be a BW waiting for him and then no going back to the other country?

Would he be facing a more serious case, or a prison sentence?

ResearchWill

nudger wrote: »

My guess is he would return after a year or two, would there be a BW waiting for him and then no going back to the other country?

Would he be facing a more serious case, or a prison sentence?

A bench warrant should only issue if the defendant was correctly served.

gustafo

nudger wrote: »

My guess is he would return after a year or two, would there be a BW waiting for him and then no going back to the other country?

Would he be facing a more serious case, or a prison sentence?

well i know a guy who got caught for dd and he went to oz before he got the summons and when he came back almost 2 years later he got a knock on the door and there was a cop with the summons,

He would be better facing it now and then head abroad or else it will only be waiting for him when ever he comes back.

ResearchWill

gustafo wrote: »

well i know a guy who got caught for dd and he went to oz before he got the summons and when he came back almost 2 years later he got a knock on the door and there was a cop with the summons,

He would be better facing it now and then head abroad or else it will only be waiting for him when ever he comes back.

I am aware of exactly same situation, when the guy and his solicitor turned up in court, almost 3 years post event the solicitor mentioned delay. The matter was later struck out by AGS.

I'm not giving any advice but there is case law to support any delay application. I really hope your friend sought good legal advice.

nudger

ResearchWill wrote: »

I am aware of exactly same situation, when the guy and his solicitor turned up in court, almost 3 years post event the solicitor mentioned delay. The matter was later struck out by AGS.

I'm not giving any advice but there is case law to support any delay application. I really hope your friend sought good legal advice.

Think the Legal advice is a friend of the family or recommended by a friend.

Is it safe to say that no matter what good reasons you put forward (job, good character, family hardship, etc) the court does not take these into account, and probably will give the lower end of the minimum sentence e.g 3 years €500 fine.

Have you ever heard of a judge giving 6 months but you have to have a clear licence for the next 5 years or the 3 years kicks in?

theAwakening

ResearchWill wrote: »

If this happened, and he had a lawyer, I would not be happy if I was him. I can not see how a driveway is a public place. Are you sure it was not that he drove into his driveway that would be different, as long as AGS formed the opinion before he entered the driveway.

Can you provide a link to the case.

i think you've just answered this for me, but in a section 4 RTA matter, could AGS follow a driver from a public road into his driveway, speak with driver in his driveway in order to form opinion he's intoxicated, and then arrest in driveway?

...or alternatively if AGS invited the driver back out onto the public road purpose of forming their opinion and making the arrest?

ResearchWill

theAwakening wrote: »

i think you've just answered this for me, but could AGS follow a driver from a public road into his driveway, speak with driver in his driveway in order to form opinion he's intoxicated, and then arrest in driveway?

...or alternatively if AGS invited the driver back out onto the public road purpose of forming their opinion and making the arrest?

No the opinion must be formed before they enter the driveway, this can be formed by reference to the irratic driving, seeing the guy stagger out of a pub etc. but if opinion formed after entry then no good.

The relevant legislation is section 39 of the 1994 Act

(2) A member of the Garda Síochána may for the purpose of arresting a person under section 49 (8) or 50 (10) of the Principal Act, enter without warrant (if need be by use of reasonable force) any place (including the curtilage of a dwelling but not including a dwelling) where the person is or where the member, with reasonable cause, suspects him to be.

You have to have formed an opinion in order to arrest. The section was amended in the 2010 act to read the relevant sections of that act.

Hooch

ResearchWill wrote: »

No the opinion must be formed before they enter the driveway, this can be formed by reference to the irratic driving, seeing the guy stagger out of a pub etc. but if opinion formed after entry then no good.

The relevant legislation is section 39 of the 1994 Act

(2) A member of the Garda Síochána may for the purpose of arresting a person under section 49 (8) or 50 (10) of the Principal Act, enter without warrant (if need be by use of reasonable force) any place (including the curtilage of a dwelling but not including a dwelling) where the person is or where the member, with reasonable cause, suspects him to be.

You have to have formed an opinion in order to arrest. The section was amended in the 2010 act to read the relevant sections of that act.

Section 7 of the 2010 Act allows entry to require a breath test to form an opinion in the curtilage

ResearchWill

Hooch wrote: »

Section 7 of the 2010 Act allows entry to require a breath test to form an opinion in the curtilage

Thanks for that, I'm still getting my head around the new act.

Hooch

ResearchWill wrote: »

Thanks for that, I'm still getting my head around the new act.

Aren't we all:)

ResearchWill

Hooch wrote: »

Aren't we all:)

I really need to sit down and read it from start to finish, but to be honest won't untill I have too lol.