New thread re being in a car drunk but no intent to drive

jenny smith

http://www.boards.ie/vbulletin/showpost.php?p=101149971&postcount=42

I would like to start a new thread on the above.

As far as I know there are changes now in that if the gardai see you driving drunk they can follow you home and enter your drive and test your where as before they had to leave if you asked them.

They cannot enter your home. What would happen if you staggered out of the car and in the door before they could reach the car?

The original question as to the situation of being drunk in car without intention of driving is interesting to me hypotheticaly. I never drink alcohol when driving

Arcade_Tryer

jenny smith wrote: »

As far as I know there are changes now in that if the gardai see you driving drunk they can follow you home and enter your drive and test your where as before they had to leave if you asked them.

Good.

They cannot enter your home.

Pity.

The original question as to the situation of being drunk in car without intention of driving is interesting to me hypotheticaly. I never drink alcohol when driving

"Intention to drive" as described in the previous thread seems wholly ambiguous given there are stories of people being prosecuted for sleeping in the passenger seat and so on. In that case, surely if you're sitting in the pub having a few pints with your keys in your pocket and your car parked outside, you are also showing "intent to drive".

Pro Hoc Vice

Arcade_Tryer wrote: »

Good.

Pity.
"Intention to drive" as described in the previous thread seems wholly ambiguous given there are stories of people being prosecuted for sleeping in the passenger seat and so on. In that case, surely if you're sitting in the pub having a few pints with your keys in your pocket and your car parked outside, you are also showing "intent to drive".

Sitting in pub with keys in pocket does not show you are in charge of the car. The offence is 1 being in charge and 2 with the intention of driving. There are many cases on the both being in charge and intention. Many people convict themselves as they say I was sleeping it off and then going to drive that shows being in charge and intention to drive.

Arcade_Tryer

Pro Hoc Vice wrote: »

Sitting in pub with keys in pocket does not show you are in charge of the car. The offence is 1 being in charge and 2 with the intention of driving. There are many cases on the both being in charge and intention. Many people convict themselves as they say I was sleeping it off and then going to drive that shows being in charge and intention to drive.

You could argue you are never in charge of a car until the keys are in the ignition, even until the car is turned on. The only distinguishing factor between sitting in the car and sitting in the pub is distance to the car. What about sitting outside the car? Or on the bonnet of the car? Also, I could have intention to drive the car sitting in the pub whereas no plans whatsoever to drive the car sitting in the passenger seat. It's all very shaky ground imo.

Pro Hoc Vice

Arcade_Tryer wrote: »

You could argue you are never in charge of a car until the keys are in the ignition, even until the car is turned on. The only distinguishing factor between sitting in the car and sitting in the pub is distance to the car. What about sitting outside the car? Or on the bonnet of the car? Also, I could have intention to drive the car sitting in the pub whereas no plans whatsoever to drive the car sitting in the passenger seat. It's all very shaky ground imo.

There are plenty of cases on both issues going back years. It's not shaky at all and as I said it's usually the accused that convicts themselves.

You don't seem to get it's not an offence to intend to drive a car nor is it an offence to be in charge of a car. There is when a person is found by the court to be in charge a presumption that the person intends to drive, that presumption is rebuttable.

There should be plenty of UK and Iridh articles on the issue on line.

K.Flyer

jenny smith wrote: »

http://www.boards.ie/vbulletin/showpost.php?p=101149971&postcount=42

I would like to start a new thread on the above.

As far as I know there are changes now in that if the gardai see you driving drunk they can follow you home and enter your drive and test your where as before they had to leave if you asked them.

If there is a suspicion of DUI, the car should be stopped immediately. Why wait until they are home or, worse again, they are involved in an accident.

They cannot enter your home. What would happen if you staggered out of the car and in the door before they could reach the car?

Unless they happened upon the driver as they try to get in their driveway, why wait until they are home? (see above).

The original question as to the situation of being drunk in car without intention of driving is interesting to me hypotheticaly. I never drink alcohol when driving

There has to be a clear line laid out on this.
IIRC, being in the driving seat with keys in the ignition is showing clear intent to drive.
How could they try to prosecute someone who goes out in their car, unintentionally finds themselves over the limit, but still has their car keys, no doubt with house keys attached, in their pocket, has decided to get a taxi later on, and opens the car to retrive something before going home.

The Road Traffic Act says..

A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol [...]

Having keys in your pocket or asleep in the car is not driving or attempting to drive.

brian_t

Arcade_Tryer wrote: »

In that case, surely if you're sitting in the pub having a few pints with your keys in your pocket and your car parked outside, you are also showing "intent to drive".

It's not unknown to drive to a pub but get a taxi home.

You need your keys to collect your car the next day.

Pro Hoc Vice

K.Flyer wrote: »

If there is a suspicion of DUI, the car should be stopped immediately. Why wait until they are home or, worse again, they are involved in an accident.


Unless they happened upon the driver as they try to get in their driveway, why wait until they are home? (see above).

There has to be a clear line laid out on this.
IIRC, being in the driving seat with keys in the ignition is showing clear intent to drive.
How could they try to prosecute someone who goes out in their car, unintentionally finds themselves over the limit, but still has their car keys, no doubt with house keys attached, in their pocket, has decided to get a taxi later on, and opens the car to retrive something before going home.

The Road Traffic Act says..



Having keys in your pocket or asleep in the car is not driving or attempting to drive.

AGS do attempt to stop people who they believe are driving over the limit the issue arises when the person pulls into driveway before AGS manage to stop the person often because AGS are behind the accused.

"Having keys in your pocket or asleep in the car" has been held by courts to show an intention to drive. To say it is not attempting to drive as a blanket statement ignores the number of people found guilty.

Johnboy1951

Pro Hoc Vice wrote: »

AGS do attempt to stop people who they believe are driving over the limit the issue arises when the person pulls into driveway before AGS manage to stop the person often because AGS are behind the accused.

"Having keys in your pocket or asleep in the car" has been held by courts to show an intention to drive. To say it is not attempting to drive as a blanket statement ignores the number of people found guilty.

That brought to mind a friend, owner and driver, who after a night out, proceeded to get into the back of the car, take his trousers off and put it on the back window shelf, and cover himself with his coat.
I did not understand his actions at the time, but about 5am a guard knocked on the front passenger window where I was sleeping, and questioned us.
Being assured the driver was in the rear and the keys on the back window shelf, he proceeded on his way.

(hehehehe actually he came back and asked if a bloke who appeared to be asleep in a close-by phone box {standing up } was "one of yours". He wasn't.)

That was 1973 ....... seems little has changed.

jenny smith

K.Flyer wrote: »

If there is a suspicion of DUI, the car should be stopped immediately. Why wait until they are home or, worse again, they are involved in an accident.


Unless they happened upon the driver as they try to get in their driveway, why wait until they are home? (see above).

There has to be a clear line laid out on this.
IIRC, being in the driving seat with keys in the ignition is showing clear intent to drive.
How could they try to prosecute someone who goes out in their car, unintentionally finds themselves over the limit, but still has their car keys, no doubt with house keys attached, in their pocket, has decided to get a taxi later on, and opens the car to retrive something before going home.

The Road Traffic Act says..



Having keys in your pocket or asleep in the car is not driving or attempting to drive.

I was talking about cases like

http://www.irishtimes.com/news/crime-and-law/courts/intoxicated-kerry-farmer-drove-tractor-into-stranger-s-driveway-1.1951174

jenny smith

Pro Hoc Vice wrote: »

There are plenty of cases on both issues going back years. It's not shaky at all and as I said it's usually the accused that convicts themselves.

You don't seem to get it's not an offence to intend to drive a car nor is it an offence to be in charge of a car. There is when a person is found by the court to be in charge a presumption that the person intends to drive, that presumption is rebuttable.

There should be plenty of UK and Iridh articles on the issue on line.

what does this mean please? and when you say the person convict themselves it is by saying they intended to drive when sober ?

Many people convict themselves as they say I was sleeping it off and then going to drive that shows being in charge and intention to drive.

but is that not intent to drive when they have slept it off i.e. when the are not drunk any more? Or is having the intent while drunk even though you do not mean to do it until sober an offence?

4ensic15

jenny smith wrote: »

Or is having the intent while drunk even though you do not mean to do it until sober an offence?

Correct.That is what the Supreme Court has said. There does not have to be an immediate intent to drive.

Johnboy1951

jenny smith wrote:


Or is having the intent while drunk even though you do not mean to do it until sober an offence?

4ensic15 wrote: »

Correct.That is what the Supreme Court has said. There does not have to be an immediate intent to drive.

An intent to drive when legally entitled to, is what offence according to the Supreme Court?

jenny smith

4ensic15 wrote: »

Correct.That is what the Supreme Court has said. There does not have to be an immediate intent to drive.

Very interesting thanks

4ensic15

Johnboy1951 wrote: »

An intent to drive when legally entitled to, is what offence according to the Supreme Court?

If the person is in charge of the vehicle and intoxicated at the time is committing the offence of being drunk in charge.

Johnboy1951

4ensic15 wrote: »

If the person is in charge of the vehicle and intoxicated at the time is committing the offence of being drunk in charge.

That offence must also have the intent to drive while under the influence.
Not intending to drive while under the influence would mean that 'drunk in charge' requirements are not met.

The vehicle was in a public place
That the accused intended to drive or intended to attempt to drive the vehicle while under the influence
That the accused was in charge of the vehicle.

Unfortunately there seems to be a presumption that the person intends to drive while under the influence, and this is the difficult part to overcome.
How can you show the court that you did not intend to break the law? It does help if the accused is not in the drivers seat; it helps further if the keys are not in the ignition.
I don't know what else a person could do to persuade the court (or the garda) that they have no intention of driving while under the influence.

Anyway, intending to drive when not under the influence, if proven, would mean that a conviction for 'drunk in charge' could not be proved.

4ensic15

Johnboy1951 wrote: »

That offence must also have the intent to drive while under the influence.
Not intending to drive while under the influence would mean that 'drunk in charge' requirements are not met.

The vehicle was in a public place
That the accused intended to drive or intended to attempt to drive the vehicle while under the influence
That the accused was in charge of the vehicle.

Unfortunately there seems to be a presumption that the person intends to drive while under the influence, and this is the difficult part to overcome.
How can you show the court that you did not intend to break the law? It does help if the accused is not in the drivers seat; it helps further if the keys are not in the ignition.
I don't know what else a person could do to persuade the court (or the garda) that they have no intention of driving while under the influence.

Anyway, intending to drive when not under the influence, if proven, would mean that a conviction for 'drunk in charge' could not be proved.

If he had the intention to drive when he sobered up is sufficient for conviction according to the Supreme Court. He is in charge of the vehicle with an intent to drive. When he intends to drive is not relevant nor is the condition he anticipates he will be in when he drives is not relevant.

Pro Hoc Vice

jenny smith wrote: »

what does this mean please? and when you say the person convict themselves it is by saying they intended to drive when sober ? but is that not intent to drive when they have slept it off i.e. when the are not drunk any more? Or is having the intent while drunk even though you do not mean to do it until sober an offence?

I mean there are many reported cases on both "in charge" and "intention", i mean people convict themselves by the words the say, an accused person has the right to silence they should use it. By saying for example I was sleeping it off, that has been held to have an intention to drive.

Pro Hoc Vice

4ensic15 wrote: »

If the person is in charge of the vehicle and intoxicated at the time is committing the offence of being drunk in charge.

There is no offence of being drunk in charge, there is an offence of being in charge with the intention to drive.

Pro Hoc Vice

4ensic15 wrote: »

If he had the intention to drive when he sobered up is sufficient for conviction according to the Supreme Court. He is in charge of the vehicle with an intent to drive. When he intends to drive is not relevant nor is the condition he anticipates he will be in when he drives is not relevant.

You are correct to say I intended to not drive on awaking but to take the bus to work and then at some future time drive he would be ok, sleeping it off it usually not rebuting the inference.

4ensic15

Pro Hoc Vice wrote: »

You are correct to say I intended to not drive on awaking but to take the bus to work and then at some future time drive he would be ok, sleeping it off it usually not rebuting the inference.

The difficulty with saying that, is that under cross examination, the defendant will be asked when he intended to retrieve the car. He will be virtually forced to say that he intended to drive it at some future point.

Johnboy1951

4ensic15 wrote: »

If he had the intention to drive when he sobered up is sufficient for conviction according to the Supreme Court. He is in charge of the vehicle with an intent to drive. When he intends to drive is not relevant nor is the condition he anticipates he will be in when he drives is not relevant.

That is not my impression of the Supreme Court's decision.
In that one case the accused was parked on the hard shoulder; asleep at the wheel; with the keys in the ignition and ignition on but the engine not running.
It was reasonable to assume he intended to drive while under the influence ...... he obviously drove and parked on the hard shoulder before falling asleep.

I would be delighted to read something that supports your contention that an intention to drive when legally entitled to would be sufficient for a conviction.
Do please post that info.

4ensic15

Johnboy1951 wrote: »

That is not my impression of the Supreme Court's decision.
In that one case the accused was parked on the hard shoulder; asleep at the wheel; with the keys in the ignition and ignition on but the engine not running.
It was reasonable to assume he intended to drive while under the influence ...... he obviously drove and parked on the hard shoulder before falling asleep.

I would be delighted to read something that supports your contention that an intention to drive when legally entitled to would be sufficient for a conviction.
Do please post that info.

The Supreme Court said it was a matter for the Court on the evidence. It would not be reasonable to assume anything about driving and parking under the influence.
Mr Justice Murray said it would not be a defence for the man to admit he was in charge of a vehicle with intent to drive while unfit due to the consumption of alcohol but that he did not intend to drive for some hours.

Johnboy1951

4ensic15 wrote: »

The Supreme Court said it was a matter for the Court on the evidence. It would not be reasonable to assume anything about driving and parking under the influence.

Given the position of the car; the level of alcohol in the driver's blood; and the lack of any container in the vehicle that had held alcohol it seems reasonable to assume that the alcohol was consumed prior to the car being parked and the driver falling asleep.

Mr Justice Murray said it would not be a defence for the man to admit he was in charge of a vehicle with intent to drive while unfit due to the consumption of alcohol but that he did not intend to drive for some hours.

That is not what you posted

If he had the intention to drive when he sobered up is sufficient for conviction ...

What convicted this driver was all the circumstances together.
If he had been in the passenger seat; the keys in the rear of the vehicle and an empty (or half empty) vodka bottle in the vehicle the circumstances in which he was found would be so different as to make conviction unlikely. Maybe any one of the circumstances being changed would have made the conviction unlikely and it would never have reached the supreme court.

Pro Hoc Vice

4ensic15 wrote: »

The difficulty with saying that, is that under cross examination, the defendant will be asked when he intended to retrieve the car. He will be virtually forced to say that he intended to drive it at some future point.

Which is ok according to the case law once the in charge at the time and the intention are not directly linked.

4ensic15

Johnboy1951 wrote: »

Given the position of the car; the level of alcohol in the driver's blood; and the lack of any container in the vehicle that had held alcohol it seems reasonable to assume that the alcohol was consumed prior to the car being parked and the driver falling asleep.



That is not what you posted



What convicted this driver was all the circumstances together.
If he had been in the passenger seat; the keys in the rear of the vehicle and an empty (or half empty) vodka bottle in the vehicle the circumstances in which he was found would be so different as to make conviction unlikely. Maybe any one of the circumstances being changed would have made the conviction unlikely and it would never have reached the supreme court.

In a criminal prosecution nothing can be assumed unless there is evidence given. The Supreme Court was not trying the man for the offence. It was setting out the law and leaving it to the lower court to find the facts and apply the law.
If your aunt had balls she would be your uncle. There is a question posed as to what the law is. The Supreme Court has set it out. It is as plain as day that the sleeping off defence is not a good defence.