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Intoxicated in charge of a vehicle

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    #62
    Effects
    Registered Users Posts: 9,761 ✭✭✭Effects


    ghost of ireland past wrote: »
    I believe you can successfully rebut the presumption that you were intending to do something by explaining that you were not conscious at the time, and consciousness is required for intentions, therefore you cannot have been intent on doing anything at the time in question, as you weren't conscious.

    How would you argue against that?

    Have you got any successful cases where this defence worked?

    You're basically saying that you can get into your car, blind drunk, put the keys in the ignition, and then fall asleep. Then when the Garda wakes you up at the wheel of the car, you can be excused by saying you were asleep. It's ludicrous.


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    #63
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    I don't think it is ludicrous.

    I'm not aware of any successful uses of this defence but I don't think that unconscious people harbour intentions. If a court does presume that an unconscious, sleeping person has intentions I believe that could be appealed.

    The court might presume that the person had intentions before they fell asleep. But the guard wasn't present at that time, and no other witnesses were either. Therefore, it is speculation. The person may have been placed in the car, while they were already asleep, by a third party, in which case no crime has been committed.

    I can't imagine there are too many examples of people being asleep in their cars but at the same time there's probably a few.

    What if the car was pulled over onto the hard shoulder with a sleeping driver?
    I don't think you can argue that the sleeping driver had intentions while he was asleep.

    Your intentions cease when you fall unconscious.


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    #64
    CrankyHaus
    Closed Accounts Posts: 2,281 ✭✭✭CrankyHaus


    Only for crimes of specific intent, so not a valid defence.

    Honestly just disconnect the battery terminals and you're not in control of a mechanically propelled vehicle.


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    #65
    Credit Checker Moose
    Closed Accounts Posts: 1,226 ✭✭✭Credit Checker Moose


    Still wouldn't work.


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    #66
    CrankyHaus
    Closed Accounts Posts: 2,281 ✭✭✭CrankyHaus


    Credit Checker Moose wrote: »
    Still wouldn't work.


    Got any authority to back that up?


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    #67
    Credit Checker Moose
    Closed Accounts Posts: 1,226 ✭✭✭Credit Checker Moose


    All you need do is reconnect the battery and you can drive.

    It would not pass the intention to drive test.

    You would be better off removing a wheel or the steering wheel. Those would show clearly that there is no intention to drive.


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    #68
    CrankyHaus
    Closed Accounts Posts: 2,281 ✭✭✭CrankyHaus


    Credit Checker Moose wrote: »
    All you need do is reconnect the battery and you can drive.

    It would not pass the intention to drive test.

    You would be better off removing a wheel or the steering wheel. Those would show clearly that there is no intention to drive.


    It's not a functioning mechanically propelled vehicle until it is repaired. I'd take my chances.


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    #69
    Credit Checker Moose
    Closed Accounts Posts: 1,226 ✭✭✭Credit Checker Moose


    You will end up paying a high price lawyer to argue that in a court. I wouldn't fancy your chances.


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    #70
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    CrankyHaus wrote: »
    Only for crimes of specific intent, so not a valid defence....

    I've never heard the phrase 'specific intent'. The alternative appears to be 'basic intent'.
    What are these things and what is the difference between them?

    What level of intent is required in the drink driving legislation?
    Is it basic, or is it specific?


    From Google.
    “A specific intent requires something more than contemplation of the prohibited act and foresight of its probable consequences. The mens rea in a crime of specific intent requires proof of a purposive element.”

    Hmmm, very difficult stuff.


    I can't work out what difference this makes to the drink driving charge.

    It seems you cannot have specific intents when asleep, but you can have basic intents perhaps, I'm not sure.
    Also, you apparently cannot have specific intents when seriously intoxicated, or, expressed differently, it is possible that a person is so intoxicated that they are unable to form specific intents.

    How does all of that square up with the drink driving legislation?


    What is basic intent?
    Can you have it while asleep?
    Is it sufficient to be convicted on a presumption?


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    #71
    CrankyHaus
    Closed Accounts Posts: 2,281 ✭✭✭CrankyHaus


    Credit Checker Moose wrote: »
    You will end up paying a high price lawyer to argue that in a court. I wouldn't fancy your chances.


    Fair enough. I'm not aware of the defence being tried in Court so really we're just two people on the internet speculating.


    That said, the Irish criminal justice system is far from draconian and goes to considerable, some might say excessive, lengths to protect the rights of any accused.


    Note that the offence is to be "in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle" while intoxicated.


    I'd argue that a vehicle that will not function is not a mechanically propelled vehicle, and that you cannot be in control of it if it will not function.



    Note also the subsection:



    (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 or she shows the contrary.


    I'd argue that disabling the vehicle so it cannot be turned on adequately shows the contrary to the presumption of intent.



    We live in a country where a drink driving charge can be dismissed because the Garda briefly looked away druring the observation period.
    https://www.irishtimes.com/news/crime-and-law/courts/high-court/high-court-rules-for-man-who-had-drink-driving-charge-dismissed-1.2088587

    I once saw a drink driving case against a man found roaring drunk with his car on its side in a tree struck out because the Garda giving evidence looked at her notebook.

    I'd be fairly confident that this defence could be relied upon.


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    #72
    cobhguy28
    Registered Users Posts: 301 ✭✭cobhguy28


    ghost of ireland past wrote: »
    I believe you can successfully rebut the presumption that you were intending to do something by explaining that you were not conscious at the time, and consciousness is required for intentions, therefore you cannot have been intent on doing anything at the time in question, as you weren't conscious.

    How would you argue against that?

    https://www.casemine.com/judgement/uk/5da0282a4653d058440f94eb

    D.P.P v Byrne

    Its was tried and failed.

    However, all you have to do is show a reasonable doubt, that you did not intented to drive. So a person in a sleeping bag or under a blanket or alseep in the back seat would all show you had no intent and would be reasonable doubt and grounds for acquittal.


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    #73
    Claw Hammer
    Registered Users Posts: 6,168 ✭✭✭Claw Hammer


    ghost of ireland past wrote: »
    A person cannot intend anything if they are asleep.




    Can the guards argue that a person had the requisite intent to drive before they fell asleep?

    Yes, and have done, successfully.


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    #74
    Claw Hammer
    Registered Users Posts: 6,168 ✭✭✭Claw Hammer


    CrankyHaus wrote: »
    Fair enough. I'm not aware of the defence being tried in Court so really we're just two people on the internet speculating.


    That said, the Irish criminal justice system is far from draconian and goes to considerable, some might say excessive, lengths to protect the rights of any accused.


    Note that the offence is to be "in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle" while intoxicated.


    I'd argue that a vehicle that will not function is not a mechanically propelled vehicle, and that you cannot be in control of it if it will not function.



    Note also the subsection:



    (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 or she shows the contrary.


    I'd argue that disabling the vehicle so it cannot be turned on adequately shows the contrary to the presumption of intent.



    We live in a country where a drink driving charge can be dismissed because the Garda briefly looked away druring the observation period.
    https://www.irishtimes.com/news/crime-and-law/courts/high-court/high-court-rules-for-man-who-had-drink-driving-charge-dismissed-1.2088587

    I once saw a drink driving case against a man found roaring drunk with his car on its side in a tree struck out because the Garda giving evidence looked at her notebook.

    I'd be fairly confident that this defence could be relied upon.
    forget what you might have seen. many times judges in the District Court have struck out charges and the the DPP has taken a case stated to the High court and the decision has been held to be wrong in law.
    Sympathetic judges soon get fed up of cases being stated to the high Court. the cost of a taxi or hotel is invariably cheaper and easier than an argument in court. Being in a vehicle of any kind in a public place whilst over the drink drive limit is asking for trouble and being fairly confident that some District judge will see tings your way is a rock many have perished on.


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    #75
    finjoe
    Registered Users Posts: 14 ✭finjoe


    no judge in this little country is going to look sympathetic on this or any similar case. Drunk in charge, the argument will be that there was a possibility an attempt to drive could be made, dont go wasting your time about no keys in the ignition or if the car was faulty/or what seat the owner might be in when caught...also saying getting thrown out of house party too much information (is it the house owners fault you got bagged because they ejected you from the party!!). I am sure there may be very genuine people out there whom get caught sitting in their car waiting for a taxi/lift (I and many have done it) but if a guard gets you, you can be in bother. Generally they never minded me but once I see the squad get out and sit on a window sill or other, get well away..they wont spare you...


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    #76
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    cobhguy28 wrote: »
    https://www.casemine.com/judgement/uk/5da0282a4653d058440f94eb

    D.P.P v Byrne

    Its was tried and failed.

    However, all you have to do is show a reasonable doubt, that you did not intented to drive. So a person in a sleeping bag or under a blanket or alseep in the back seat would all show you had no intent and would be reasonable doubt and grounds for acquittal.

    This is incorrect, the presumption is rebutted on the balance of probabilities, not when you raise a reasonable doubt.


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    #77
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    CrankyHaus wrote: »
    Honestly just disconnect the battery terminals and you're not in control of a mechanically propelled vehicle.

    Control is based on possession, not the actual ability to drive and the presumption is simply based on the fact you intend to drive at some stage in the future, the fact you have to reconnect the battery is irrelevant.


    CrankyHaus wrote: »
    It's not a functioning mechanically propelled vehicle until it is repaired. I'd take my chances.

    The offence is based on presumed intentions, not the means of achieving such intentions, the only way such a defence of a defective vehicle would work would be when you establish the vehicle was defective, you knew it was defective yourself and it wasn't an easy fix - i.e you needed a mechanic etc. There's nothing stopping you from reconnecting the batteries and then driving off.


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    #78
    Effects
    Registered Users Posts: 9,761 ✭✭✭Effects


    ghost of ireland past wrote: »
    I don't think that unconscious people harbour intentions. If a court does presume that an unconscious, sleeping person has intentions I believe that could be appealed.

    The intention is there, it doesn't matter if you are conscious or not.

    I go to bed every night with the intention of getting and and going to work.
    Are you saying I don't intend to go to work because I'm asleep?


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    #79
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    cobhguy28 wrote: »
    https://www.casemine.com/judgement/uk/5da0282a4653d058440f94eb

    D.P.P v Byrne

    Its was tried and failed.

    However, all you have to do is show a reasonable doubt, that you did not intented to drive. So a person in a sleeping bag or under a blanket or alseep in the back seat would all show you had no intent and would be reasonable doubt and grounds for acquittal.

    That is very interesting.

    However, the circumstances in that case are the worst possible, in that the driver was found asleep at the wheel, pulled over onto a hard shoulder, with the keys in the ignition turned a few clicks towards 'on', nowhere near his house.

    You can't copy and paste text from that site which is annoying.
    The Circuit Court judge wasn't sure if he could consider the intentions of the driver before he fell asleep and he referred that question to the Supreme Court.


    The Supreme Court found that the person's intentions before he fell asleep did matter, and they could be considered, but I don't fully agree there. The only evidence offered as to his state of mind before he fell asleep was circumstantial, although it was fairly compelling.

    The Supreme Court determined that he must have had an intention to drive before he fell asleep and it was on that basis that he was convicted. I wouldn't be fully happy with that.


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    #80
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    ghost of ireland past wrote: »
    That is very interesting.

    However, the circumstances in that case are the worst possible, in that the driver was found asleep at the wheel, pulled over onto a hard shoulder, with the keys in the ignition turned a few clicks towards 'on', nowhere near his house.

    You can't copy and paste text from that site which is annoying.
    The Circuit Court judge wasn't sure if he could consider the intentions of the driver before he fell asleep and he referred that question to the Supreme Court.


    The Supreme Court found that the person's intentions before he fell asleep did matter, and they could be considered, but I don't fully agree there. The only evidence offered as to his state of mind before he fell asleep was circumstantial, although it was fairly compelling.

    The Supreme Court determined that he must have had an intention to drive before he fell asleep and it was on that basis that he was convicted. I wouldn't be fully happy with that.

    I already linked to the case at the start of this thread, it obviously wasn't read at the time!

    The SC did not determine he must have had an intention to drive and on that basis he was convicted, the CC judge did that, this was a case stated, they simply answered the questions posed by the CC judge as being correct and outlined the area of law.

    I fail to see how anyone can disagree with:-
    The fact that he had fallen asleep before giving effect to that intention did not mean that intention lapsed or ceased to exist

    It goes without saying, sleep does not diminish your intentions.


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    #81
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    From the link.
    At the conclusion of the case stated the learned Circuit Court Judge stated that having heard submissions of the parties he 'was of the opinion that the statute only allowed me to consider the intention of the Defendant only as and from the time garda found the Defendant in the car'

    The questions of law for the supreme court are.
    1. was the driver in charge?
    2 can i consider the intentions of the defendant before he went to sleep?
    end quote from link.


    The Circuit Court judge clearly was not clear on whether or not he could convict. I don't know if he convicted or not but I doubt it, given his stated concerns. He referred the question to the supreme court. The supreme court said, yes and yes.

    I don't fully agree with 2.


    edit: The driver was convicted in district court, appealed to circuit court, then referred to supreme


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    #82
    cobhguy28
    Registered Users Posts: 301 ✭✭cobhguy28


    GM228 wrote: »
    This is incorrect, the presumption is rebutted on the balance of probabilities, not when you raise a reasonable doubt.

    "15. I conclude, therefore, that if the Court is satisfied that the Defendant was in charge of the motor vehicle as charged, the presumption of intention to drive pursuant to subsection 8 of section 50 arises. It is then for the Defendant to show to the contrary so as to raise a reasonable doubt in the mind of the trial judge."

    That is a much lower threshold than on the, balance of probabilities


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    #83
    Claw Hammer
    Registered Users Posts: 6,168 ✭✭✭Claw Hammer


    ghost of ireland past wrote: »
    From the link.
    At the conclusion of the case stated the learned Circuit Court Judge stated that having heard submissions of the parties he 'was of the opinion that the statute only allowed me to consider the intention of the Defendant only as and from the time garda found the Defendant in the car'

    The questions of law for the supreme court are.
    1. was the driver in charge?
    2 can i consider the intentions of the defendant before he went to sleep?
    end quote from link.


    The Circuit Court judge clearly was not clear on whether or not he could convict. I don't know if he convicted or not but I doubt it, given his stated concerns. He referred the question to the supreme court.
    The case would have been stopped while the Supreme Court was considering it. It would have gone back to the judge who would have had to decide it in light of the answers he got from the Supreme Court. The driver might have been ordered to pay the costs of the state in the Supreme Court as well as probably being banned.


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    #84
    the_pen_turner
    Registered Users Posts: 7,507 ✭✭✭the_pen_turner


    what would happen if you made a video of yourself in the car stating that you have no intention of driving until enough time has passed for you the be sober


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    #85
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    the_pen_turner wrote: »
    what would happen if you made a video of yourself in the car stating that you have no intention of driving until enough time has passed for you the be sober
    It might work. It depends on how true it appears to be. If it is credible then it might work. It's not necessary though. The circumstances of the case are what matter.

    You cannot have an intention to drive, even if you only intend to drive after you have sobered up. That is not allowed. It seems unfair. You are allowed to intend to drive the car the following summer, just not the following morning. The distinction between the two is not entirely clear.

    The link does contain this problem text here.
    the link wrote:
    20. If a car owner left his house solely for the purpose of getting something from the boot of his car parked on the street outside when he was under the influence of alcohol he may be considered to be in charge of the motor vehicle but the fact that he intended to drive to work the following day would not mean that he was in charge with intent to drive, within the meaning of the section. There I think the intention would be too remote to fall within the section.

    So, you cannot sleep in the car while intending to drive to work the following day but you can get stuff from the boot, while intending to drive to work the following day.

    The rulings don't seem consistent.

    Can you get stuff from the glove box and fall asleep?


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    #86
    monkeysnapper
    Registered Users Posts: 2,575 ✭✭✭monkeysnapper


    I remember back in 1997 asking a police officer about this very thread while stuck in town one night. Now this was in uk and was a long time ago....

    I asked him if I could sleep in car while under the influence and his reply was to get the keys as far away from the car as possible and you'll be ok. No keys equals no intention to drive.

    This probably doesnt happen these days tho.


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    #87
    80j2lc5y7u6qs9
    Closed Accounts Posts: 957 ✭✭✭80j2lc5y7u6qs9


    Lux23 wrote: »
    Does anyone know what the possible penalties are for being in drunk in charge of the vehicle? These are the facts of the case:
    • The person was three times over the limit
    • They were at a house party, were thrown out and were attempting to sleep it off in the car
    • Garda say on the charge sheet - not driving or attempting to drive

    The problem I see with is that they probably would have woken up in the morning still drunk, and attempted to drive home.
    What exactly is the charge then, intention to drive?


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    #88
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    The facts of the case presented in the opening post.

    The person was three times over the limit
    They were at a house party, were thrown out and were attempting to sleep it off in the car
    Garda say on the charge sheet - not driving or attempting to drive


    They are in charge of the vehicle with a presumed intent to drive the vehicle, unless the presumption can be rebutted, which only requires a balance of probability standard, not a higher standard of proof.

    The person claims they were only intending to sleep in the car.
    Is that sufficient to rebut the presumption?
    In my view now, yes it is.

    The balance of probability standard only requires that you have an excuse, a reasonable excuse as to why you were in the car which doesn't involve driving the car, or intending to drive the car.
    It is obvious that the guy intends to drive the car at some stage in the future, for example, next week. I'm a bit confused as to exactly what the rules are around intent.


    What is the guy supposed to do if he doesn't sleep in the car?
    He didn't intend to be thrown out of the party. He is now stuck. Should he sleep on the road? The law wasn't intended to criminalise sleeping in your car in these circumstances. He's stuck and needs somewhere to sleep. In my view that is sufficient reason to be in the car, and sufficient to rebut the presumption that you were in the car with an intention of driving.

    There is a very fine line here.

    Was the car in a built up area?
    Could the guy have slept in a hotel?
    Did he have money for a hotel?

    The law cannot require that you sleep on the street in order that you avoid these charges. The guy in this case may have had a bonafide genuine need to sleep in his car, due to the unforeseen circumstance of being ejected from the party.

    I think judges are fairly easy on allowing rebuttal of presumptions, if the reason given is credible and genuine.

    It's hard to explain being on the hard shoulder in the driving seat but easier to explain sleeping in a car outside a party, especially if there were no other options.

    I don't know how the case would go. Very difficult. Judges are strict on drink driving.


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    #89
    80j2lc5y7u6qs9
    Closed Accounts Posts: 957 ✭✭✭80j2lc5y7u6qs9


    GM228 wrote: »
    Control is based on possession, not the actual ability to drive and the presumption is simply based on the fact you intend to drive at some stage in the future, the fact you have to reconnect the battery is irrelevant.





    The offence is based on presumed intentions, not the means of achieving such intentions, the only way such a defence of a defective vehicle would work would be when you establish the vehicle was defective, you knew it was defective yourself and it wasn't an easy fix - i.e you needed a mechanic etc. There's nothing stopping you from reconnecting the batteries and then driving off.
    It was said above that swapping keys with another sleeper in another car would make you safe from prosecution. But could you not get your keys back as you could reconnect the battery. Or is not having the keys mean you are not in charge?


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    #90
    ghost of ireland past
    Banned (with Prison Access) Posts: 228 ✭✭ghost of ireland past


    Yes, I would think not having the keys means you're not in charge, even if you're in the car, therefore no offence.


    I think it helps to think about what the framers of the law had in mind.

    They criminalise actually driving, attempting to drive, and also intending to drive, but not merely being in charge while drunk.

    Now, I'm arguing that they couldn't have intended to criminalise all intentions to drive at any future point. Of course people intend to drive their cars in the future. The only real way not to have such an intent would be to intend to sell your car, or otherwise dispose of it, and never to drive it again.

    That couldn't have been what the framers intended. That would be absurd. So what did they intend?

    I was going to say that the framers couldn't possibly have wanted to criminalise sleeping in your car with an intention of driving the next day when you're sober. But now I think that's exactly what they intended. That's how the law is written, if interpreted sensibly. It's also what the Supreme Court found in their judgement.

    The Supreme Court was speaking about how amendments to the relevant section had altered the original meaning.
    It is not sufficient to show only that he did not intend to drive while he was unfit or during any particular period of time. That could only have been a deliberate alteration on the part of the legislature. It appears that Section 50 as it now stands seeks to create an offence of strict, or at least stricter, liability.

    The reason it makes sense to criminalise sleeping in your car with an intention to drive when you wake if you're sober is that people probably wake after only a few hours in a cold uncomfortable car, and so it's very likely that when a person sleeps in their car while drunk that they end up driving the car while still drunk, therefore it's worth criminalising.



    The offence can be avoided if you have a reason for being in the car which doesn't involve driving, or intending to drive, like sleeping perhaps in some circumstances.


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    #91
    Peregrinus
    Registered Users Posts: 26,195 ✭✭✭✭Peregrinus


    Mckenna Scrawny Female wrote: »
    . . . Or is not having the keys mean you are not in charge?
    This. If you don't have the keys, you can't drive the car, or enable anyone else to. So you're not "in charge" of the car.

    So, the answer to the "what can I do if I am thrown drunk out of a house party and have to sleep in the car?" scenario is "before you go to sleep, give the keys to the householder or, if you're not on speaking terms with him right now, post them through his letterbox". Then, if the guards come across you while you are still drunk, you can point out that you don't have, and can't get, the keys, and so aren't in control of the car.

    And this points the way to a general tactic. Far be it from me to encourage dishonesty, but the standard way of dealing with this problem is, before you go to sleep, hide the keys. Then, when challenged by the guards to produce the keys, say "Sorry, mate, don't have them. I lost them last night when in drink." (But it is desirable that you not be so drunk when you hide the keys that you cannot remember in the morning where you hid them.)


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