Intoxicated in charge of a vehicle

STB.

ghost of ireland past wrote: »

But the presumption mainly applies to people who are caught red handed as it were.

No. Presumption of Innocence is constitutionally protected, i.e. that every person accused of a criminal offence in Ireland is innocent until proven guilty.

"Intent" should not be left up to be proven by balance of probability.

People do it unwittingly in cars and campers in public car park/spaces and at festivals and do not know the potential repercussions.

Drifter50

joeguevara wrote: »

Holidaying in a campervan is not a way of life.

Secondly the scenario described is not really what is discussed as the person isn’t drinking in the drivers seat with intent to drive.

If they are over the limit when the do begin their journey then they are susceptible to a drink driving charge.

If they are parked up and drinking in the sleeping are or kitchenette then intention to drive wouldn’t be there.

Maybe you`re not familiar with what happens around rural Ireland with these motorhomes. Now I know I`m generalising here but
-average age of motorhome occupants 60 plus
-retired persons
-leave their home base April/May and travel around rural Ireland for the summer months
-meet their friends in the various stops
-lots of Aldi and Lidl wine consumed
-could have wife in living area watching the soaps, husband sitting in driving seat looking at his phone / reading books paper etc
-move on every couple of days

sounds like a way of life to me

joeguevara

Drifter50 wrote: »

Maybe you`re not familiar with what happens around rural Ireland with these motorhomes. Now I know I`m generalising here but
-average age of motorhome occupants 60 plus
-retired persons
-leave their home base April/May and travel around rural Ireland for the summer months
-meet their friends in the various stops
-lots of Aldi and Lidl wine consumed
-could have wife in living area watching the soaps, husband sitting in driving seat looking at his phone / reading books paper etc
-move on every couple of days

sounds like a way of life to me

Sit in passenger seat. Problem solved.

Credit Checker Moose

joeguevara wrote: »

Sit in passenger seat. Problem solved.

Nope.

joeguevara

Credit Checker Moose wrote: »

Nope.

Ok maybe I was a bit flippant. It is possible you may be charged with the offence if sat in passenger seat. If you weren’t in possession of keys which shows that you were unlikely to have an intention to drive while unfit. If another person had the keys and were packed away, then that would definitely reach the balance of probabilities.

GM228

cobhguy28 wrote: »

"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

Well, hum, there is a problem here in that the case stated did not specifically deal with a reverse burden provision per se, the Supreme Court specifically dealt with this issue in 1992 in the Hardy vs Ireland [1992] 2 IR 550 case where it held:-

Hardy wrote:

The words are ‘unless he can show . . . [etc.]’. These words cannot be construed as meaning that the raising of a doubt would be a sufficient discharge. The onus, not being an onus resting on the prosecution, does not require proof beyond reasonable doubt. It is sufficient if there is proof on the balance of probabilities

And note the presumption in the Act:-

(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.

Reverse burden provisions can be a very complicated area of the law and the various tests involved, however the Hardy principle has been reaffirmed by both the Court of Appeal and the Supreme Court in recent times.

Mckenna Scrawny Female wrote: »

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?

Not having the keys does not mean you are not in charge of the vehicle.

Peregrinus wrote: »

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

To nitpick Peregrinus:-

Byrne wrote:

Of course I do not mean to say that all these ingredients are essential since in particular circumstances a person may be “ in charge ” even if he does not have the keys or if he is outside the motor

You most definitely can be in charge of a vehicle without the keys as per the Supreme Court, but the charge is a two part one, it's the intent which is in doubt with no keys, not the in charge part.

STB. wrote: »

"Intent" and "in charge" are the key words here. It is an offence to be in charge of a vehicle EVEN when not driving or attempting to drive it.

It's not an offence to be in charge of a vehicle even when not driving or attempting to drive it, it's an offence to be in charge of a vehicle with intent to drive.

Mckenna Scrawny Female wrote: »

Isn't it strange the accused has to prove innonence?

You don't prove innocence, you rebut a presumption.

ghost of ireland past wrote: »

But the presumption mainly applies to people who are caught red handed as it were. They have the opportunity to explain themselves and they can't. They only have to give a reasonable excuse which isn't contradicted or made unlikely by the evidence of witnesses, especially garda withnesses. I don't think a person would choose to sleep in the drivers seat for example.

In the Supreme Court case a few pages back the guy never gave any alternative reason as to why he was in the car. If he had done it would have been hard to believe. He was in the driving seat, with the keys in, but most crucially he was on the hard shoulder, away from wherever it was where he had been drinking.

The law reflects the fact that there is generally no reason to be in your car unless you intend to drive. If you did have a different reason then just say so.

I now completely agree with the Supreme Court decision, when previously I wasn't sure. It is correct that sleeping drivers have intentions for the purpose of this law, and it is correct to look back in time to determine what those intentions might be if the person is asleep.


There was an example given in the thread where a guy said he was in the car to cool down after an argument and that was accepted.

The presumption of innocence applies to ANY criminal charge, irrespective of weather you were caught red handed or not.

STB. wrote: »

No. Presumption of Innocence is constitutionally protected, i.e. that every person accused of a criminal offence in Ireland is innocent until proven guilty.

I'll nitpick again, but strictly the presumption of innocence does not actually create any presumption of innocence, the vital point is that it simply states the accused must not prove their innocence, rather the prosecution must prove their guilt in accordance with law, that is not the same as saying the accused is innocent, though it does have that general effect.

monty_python

How does this law apply to campervans? It's a common occurrence for people to park up the campervan and walk to the pub and then sleep in the campervan.

Could they technically be done too??

amadangomor

monty_python wrote: »

How does this law apply to campervans? It's a common occurrence for people to park up the campervan and walk to the pub and then sleep in the campervan.

Could they technically be done too??

It has been discussed already, read the thread:)

GM228

monty_python wrote: »

How does this law apply to campervans? It's a common occurrence for people to park up the campervan and walk to the pub and then sleep in the campervan.

Could they technically be done too??

Yes they could depending on the situation, contrary to what some may believe a camper van does not have any special status or definition in road traffic law, they are mechanically propelled vehicles (MPV) just like a car, truck, van, motorbike etc - the offence applies to MPVs with no exceptions.

monty_python

amadangomor wrote: »

It has been discussed already, read the thread:)

My apologies. I just seen that now

joeguevara

Has there ever been a case in Ireland of a truck driver prosecuted as he/she slept in their bunk which is usually behind the driver and passenger seats I haven’t heard of any. That would mean that a person who slept in the sleeping area while intoxicated would be treated the same, if in the drivers seat and possibly the passenger seat they risk being prosecuted. I never imagined so many people would be worried about campervans until I read this thread. Honestly, I have never heard it brought up before.

ExoPolitic

Curious - What if the sober driver left the car with two drunk passengers fast asleep in the back as not to wake them?

GM228

ExoPolitic wrote: »

Curious - What if the sober driver left the car with two drunk passengers fast asleep in the back as not to wake them?

Should be fairly easy to rebut the presumption when the driver gives evidence of such (and of course he/she didn't leave the keys with them).

spaceHopper

Where do camper vans fit into this every time I go surfing I sleep in a camper after a few drinks

joeguevara

spaceHopper wrote: »

Where do camper vans fit into this every time I go surfing I sleep in a camper after a few drinks

That’s the least of your worries. What about having a few drinks and sleeping in your campervan after your friends got wine from Lidl.

spaceHopper

joeguevara wrote: »

That’s the least of your worries. What about having a few drinks and sleeping in your campervan after your friends got wine from Lidl.

It's a small vsn

joeguevara

spaceHopper wrote: »

It's a small vsn

Is it a campervan or a motorhome?

Steve

So

(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.

How is this not contrary to the presumption of innocence granted by our constitution?

As was said, 'Intent', in a criminal proceeding, cannot be determined on 'balance of probabilities'. it must be proven beyond reasonable doubt.

STB.

Steve wrote: »

So

How is this not contrary to the presumption of innocence granted by our constitution?

As was said, 'Intent', in a criminal proceeding, cannot be determined on 'balance of probabilities'. it must be proven beyond reasonable doubt.

It is. How did this even get past the AG's.

And how has it not been judicially reviewed? We are getting into nonsense territory when we are talking about being "in charge" and second guessing peoples "intent".

On my reading of the updated legislation, there is no difference between sleeping in car whilst intoxicated and driving whilst intoxicated (certainly the repercussions are the same). How many of these cases are being brought to court on the basis of badly written legislation.

And there are people sleeping in cars and RV's etc, that probably don't know this.

GM228 wrote: »

To note it's not an offence to be in charge of a vehicle even when not driving or attempting to drive it simplicitor, it's an offence to be in charge of a vehicle with intent to drive.

Hold on a second. Your nitpicking doesnt get away from the fact that it is a charge that you have to answer on the basis of a member of AGS having to implement poorly written legislation. The burden of proof is finding someone sleeping in car. Unless they have been teaching some form of mind reading down in Templemore, intent cannot be measured by tapping at someones window.

GM228 wrote: »

I'll nitpick again, but strictly the presumption of innocence does not actually create any presumption of innocence, the vital point is that it simply states the accused must not prove their innocence, rather the prosecution must prove their guilt in accordance with law, that is not the same as saying the accused is innocent, though it does have that general effect.

I'll nitpick back. Presumption of innocence is taking a back seat in the context of a Garda's view of when people are "in charge" of a vehicle and when they are not. Secondly, second guessing people's "intent" is not proof of anything and shouldn't proceed unless there is damning evidence . There are criminal cases everyday that are shot down by the DPP because of lack of evidence.

These "caught in car sleeping whilst intoxicated" cases can and are preceding to the courts on the whim of a member of AGS for the courts to decide on "the balance of probabilities". The penalties are the same as if someone was caught drink driving.

joeguevara

I was reading an English case and to rebut the presumption of intent to drive he showed the arresting policeman his contact lenses that he had taken out. The judge accepted that as his vision would be so impaired that it was clear that he had no intention to drive. It wasn’t stated but it was key that he showed the policeman his contact lenses in their case which was in the report rather than saying it in court. I think other actions such as removing shoes and socks would be equally as compelling. Why would you remove them if you had an intention to drive. Unless you were Alan Partridge having a breakdown binging on Toblerones driving barefoot. Similarly if you were in a sleeping bag it would be hard to argue that you had no other intention but to sleep. If you wanted to go nuclear letting them air out of all the tyres would be a legendary defence. If you had a wheel clamp or a steering wheel brace then putting them on would surely have you in the clear.

Die Hard 2019

joeguevara wrote: »

I was reading an English case and to rebut the presumption of intent to drive he showed the arresting policeman his contact lenses that he had taken out. The judge accepted that as his vision would be so impaired that it was clear that he had no intention to drive. It wasn’t stated but it was key that he showed the policeman his contact lenses in their case which was in the report rather than saying it in court. I think other actions such as removing shoes and socks would be equally as compelling. Why would you remove them if you had an intention to drive. Unless you were Alan Partridge having a breakdown binging on Toblerones driving barefoot. Similarly if you were in a sleeping bag it would be hard to argue that you had no other intention but to sleep. If you wanted to go nuclear letting them air out of all the tyres would be a legendary defence. If you had a wheel clamp or a steering wheel brace then putting them on would surely have you in the clear.

Pull the main fuse or disconnect the starter.
In fairness you should not be done for considering driving anymore than I should be done for considering headbutting my warehouse manager. Unless I do it or attempt to do it k should be free to consider wherever I wish.

Steve

joeguevara wrote: »

I was reading an English case and to rebut the presumption of intent to drive he showed the arresting policeman his contact lenses that he had taken out. The judge accepted that as his vision would be so impaired that it was clear that he had no intention to drive. It wasn’t stated but it was key that he showed the policeman his contact lenses in their case which was in the report rather than saying it in court. I think other actions such as removing shoes and socks would be equally as compelling. Why would you remove them if you had an intention to drive. Unless you were Alan Partridge having a breakdown binging on Toblerones driving barefoot. Similarly if you were in a sleeping bag it would be hard to argue that you had no other intention but to sleep. If you wanted to go nuclear letting them air out of all the tyres would be a legendary defence. If you had a wheel clamp or a steering wheel brace then putting them on would surely have you in the clear.

So, are you saying someone has a legal burden to prove themself innocent?

joeguevara

Steve wrote: »

So, are you saying someone has a legal burden to prove themself innocent?

If they are intoxicated they have to rebut the presumption that they were not in charge of the vehicle and did not have an intention to drive.

The reversal of the burden of proof while rare exists in some cases. For example if found in the possession of a dangerous weapon, the accused has to prove that they were not going to use it to cause harm.

This is why, I casually joked with clients that if they have a baseball bat in their boot, always have a baseball glove and baseball to show that they played rounders rather than to bash Antos head in for being behind on his bill.

Same if someone was found with a Stanley blade, if they were a carpet fitter and were on their way from home then they would rebut the presumption that they could use it to slice someone. Similarly butcher or chefs with knives.

The presumption of innocent while the cornerstone in our criminal legal system, reverses in certain cases.

Die Hard 2019

joeguevara wrote: »

If they are intoxicated they have to rebut the presumption that they were not in charge of the vehicle and did not have an intention to drive.

The reversal of the burden of proof while rare exists in some cases. For example if found in the possession of a dangerous weapon, the accused has to prove that they were not going to use it to cause harm.

This is why, I casually joked with clients that if they have a baseball bat in their boot, always have a baseball glove and baseball to show that they played rounders rather than to bash Antos head in for being behind on his bill.

Same if someone was found with a Stanley blade, if they were a carpet fitter and were on their way from home then they would rebut the presumption that they could use it to slice someone. Similarly butcher or chefs with knives.

The presumption of innocent while the cornerstone in our criminal legal system, reverses in certain cases.

In 90s Dublin we started a softball pickup game because everyone in the grouop had bats and gloves

Steve

I'm not arguing the fact that that it is currently a burden upon innocent people to rebut their guilt, I'm just saying it is abhorrent to the constitution.

"the accused has to prove that they were not going to use it to cause harm" no, bull****, the accuser had to prove they meant to cause harm.

In the greater scheme of things, it matters not a jot though because unless they have been proven guilty a hundred times previously, then there is no punishment.

Steve

Steve wrote: »

In the greater scheme of things, it matters not a jot though because unless they have been proven guilty a hundred times previously, then there is no punishment.

Except, of course, if caught with no car tax, or sleeping off a few beers in the boot of your car...

joeguevara

Steve wrote: »

I'm not arguing the fact that that it is currently a burden upon innocent people to rebut their guilt, I'm just saying it is abhorrent to the constitution.

"the accused has to prove that they were not going to use it to cause harm" no, bull****, the accuser had to prove they meant to cause harm.

In the greater scheme of things, it matters not a jot though because unless they have been proven guilty a hundred times previously, then there is no punishment.

If that was the case it would permit anybody walk round with dangerous weapons without any fear.

oleras

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.

Would a text message to wife/brother/friend explaining to them that you intend sleeping in your car because you cant afford a taxi and will require a lift home when they get up in the morning, say 7am ? Would that do as a rebuttal if you showed the Guard at the time, say timestamped 1am and he approaches you at 2am.

joeguevara

oleras wrote: »

Would a text message to wife/brother/friend explaining to them that you intend sleeping in your car because you cant afford a taxi and will require a lift home when they get up in the morning, say 7am ? Would that do as a rebuttal if you showed the Guard at the time, say timestamped 1am and he approaches you at 2am.

If you were sat in drivers seat with the keys on your person, then no it wouldn’t be a rebuttal. If you were sat in the back with the keys outside or appropriately hidden, then you wouldn’t need a text message to rebut your presumption.

Saying that you are going to do something does not mean that you are going to do it. Especially if all other indicators point to not doing it. It would be very similar to texting your girlfriend at 8pm saying your going to finish up your pint (But secretly ordering 10 shots of samba as) and head home to her with a pizza but instead end up head first in a wheelie bin, trying to find the kebab that you dropped in it after stumbling out of a strip club at 7am. Do you think that you can rely on a time stamped text message at 08.00 as a rebuttal that you didn’t intend to do all of the other things?

STB.

oleras wrote: »

Would a text message to wife/brother/friend explaining to them that you intend sleeping in your car because you cant afford a taxi and will require a lift home when they get up in the morning, say 7am ? Would that do as a rebuttal if you showed the Guard at the time, say timestamped 1am and he approaches you at 2am.

If presumption of innocence on intent was truly applied, simply telling a Guard that clearly you are not driving and have no intention of driving should the first meaure of one's intentions. To double down offering the keys to the Guard should suffice as regards future intentions.


The fact that "intent" is seen from a worse case scenario to be referred to and measured by a court regardless of ones intentions in the biggest issue. We don't want people taking a chance, if they realise that they may get pulled for doing the sensible thing in not driving.