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Intoxicated in charge of a vehicle
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The charge sheet says ...were in charge of a mechanically propelled vehicle registration xxxxx with the intent to drive/attempt to drive the said vehicle (but not driving or attempting to drive)...
Underneath it says contrary to section 5(4) (a) & 5 of the Road Traffic Act 2010.
It's a very confusing charge, but seeing a solicitor next week to clarify it.Mckenna Scrawny Female wrote: »What exactly is the charge then, intention to drive?0 -
The charge sheet says ...were in charge of a mechanically propelled vehicle registration xxxxx with the intent to drive/attempt to drive the said vehicle (but not driving or attempting to drive)...
Underneath it says contrary to section 5(4) (a) & 5 of the Road Traffic Act 2010.
It's a very confusing charge, but seeing a solicitor next week to clarify it.
(4) 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), there is present in his or her body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his or her breath will exceed a concentration of—
(a) 22 microgrammes of alcohol per 100 millilitres of breath, or
(b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.
(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.0 -
I still don't understand how they can prove intent to drive beyond reasonable doubt.0
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I still don't understand how they can prove intent to drive beyond reasonable doubt.
They don't need to. That's the reality. Hence the discussion going on.
The person charged will need a solicitor outlining that the fact they were sleeping, not driving for (x reasons) and there was no intent to drive.
They penalties for being convicted on "the balance of probablities" are the same as being caught drink driving, so get a GOOD solicitor.0 -
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They don't need to. That's the reality. Hence the discussion going on.
The person charged will need a solicitor outlining that the fact they were sleeping, not driving for (x reasons) and there was no intent to drive.
They penalties for being convicted on "the balance of probablities" are the same as being caught drink driving, so get a GOOD solicitor.
Does it make any difference if it is in a campervan. If it is asked over 50 times surely the answer will change.0 -
I still don't understand how they can prove intent to drive beyond reasonable doubt.
The person in the Supreme Court case made at least two mistakes.
He never gave a reason why he was in his own car, and he stated in his own witness evidence in court that he had not intended to fall asleep in his car.
If a person is drunk, and at their car, the law presumes that the person meant to drive their car. That's why they were at the car. If the person was at the car for another reason, maybe to sleep, or to get something from the boot, then they can say that in court. If it sounds likely, which is to say, if it isn't contradicted by what the garda say, then the person should be ok.
For example, you can't say you were getting something from the boot if you were sitting in the driver's seat with the keys in the ignition.
If a person was kicked out of a party, and had nowhere to go, and they intended to sleep in the car, and they weren't in the driving seat, that seems pretty believable.
I said earlier that the person in the Supreme Court case made at least two mistakes.
He didn't give a reason why he was in his car (in the district court case). If you fail to give a reason which doesn't involve driving, or intending to drive, you will automatically lose. You must give a reason which doesn't involve driving, as otherwise the presumption (that you intended to drive) will apply.
Secondly, he said he hadn't intended to fall asleep, again in his district court trial, as far as I remember. That prevents him from saying that the reason he was in the car was to sleep, leaving him with no reason for being in the car.
I don't think the guy in the Supreme Court could have said anything to get off. No story would have been believable given the circumstances of how he was caught. If a person is in the driving seat it's going to make it very hard for the court to let you off. That's why I gave the example earlier of someone getting something from the glove box, because people often sit into the driver's seat first to get something from the glovebox, and that looks very suspicious if a guard was observing you.0 -
joeguevara wrote: »Does it make any difference if it is in a campervan. If it is asked over 50 times surely the answer will change.
In charge of a mechanically propelled vehicle. Don't believe there's a distinction.0 -
Does the defendant have to take the stand in order to provide the reason to rebut the presumption, or can their solicitor explain the reason to the court?
The difference is that if the defendant takes the stand they can be cross examined on other issues, not just on this issue.
If you are required in law to rebut a presumption it should be possible for you to do that without having to open yourself up to cross examination on other issues which don't involve the rebuttal.
One final point on what a defendant should say.
If you're asked what you intended to do in the morning after sleeping you cannot say you intended to drive. You should say you intended to leave your car, go for a walk, take breakfast, and evaluate your options. That is crucial as you wouldn't be 'in charge' of your car while outside it doing those other things, and the Supreme Court did mention a break in the 'in charge' status as being relevant and important.
Although it's obvious a person intended to drive the next day they should be coy about that and say they only intended to make a final decision on those matters the following day, after a walk and breakfast. They cannot have intended to drive the night before. It's possible that they might have decided to leave the car there and use a taxi, they didn't intend to make a final decision until the following morning, after breakfast. They didn't intend to consider the issue (of driving the car) until the following morning.0 -
If you are required to take the stand in order to rebut the presumption, and by taking the stand you leave yourself open to be cross examined on other issues besides the rebuttal, then that defeats your right to silence on those other matters.
If that is the case there's a big problem. You shouldn't have to give up your right to silence on those other issues, and you definitely shouldn't be forced to.
I suspect you don't have to take the stand to give the reason for the rebuttal but then you're not under oath which is a different problem for the court. What happens if you lie?0 -
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ghost of ireland past wrote: »If you are required to take the stand in order to rebut the presumption, and by taking the stand you leave yourself open to be cross examined on other issues besides the rebuttal, then that defeats your right to silence on those other matters.
If that is the case there's a big problem. You shouldn't have to give up your right to silence on those other issues, and you definitely shouldn't be forced to.
I suspect you don't have to take the stand to give the reason for the rebuttal but then you're not under oath which is a different problem for the court. What happens if you lie?
If an accuseds only way to rebut a presumption was to stand up in a witness box and ‘ I had no intention to drive because ‘ then they are already under pressure.
Iliciting evidence would be the first port of call. For instance cross examining the Garda who found the person which would confirm location of person, location of car keys, state of dress (I.e shoes off) etc. If he couldn’t answer or didn’t know then put it to them the reasons (for this section) what facets of the reverse have been proved.
Witness testimony would also be used. Were others around who could give evidence which would assist in the reversal
Actual evidence such as photographs etc.
Ok...once done all the accused cut be put in the box. I know the first thing the people will say is what about self incriminate. Of course you have the right not to be compelled to answer that would give a real risk to criminal prosecution or penalty.
If the accused decides to give oral testimony to try and reverse the burden of proof, it is only limited to the actions to show that there was not intention.
If it gets to this stage, it has already been proven that they were intoxicated. You don’t have to raise any accuseds oral testimony, and has nothing to do with this question. If the lawyer is going after this then documents, cctv, medical reports, timings of tests and so much more would be used. But that is not the question.
So the chances of self are miniscual. If you are asked a question in cross examination that would be contrary to your own testimony, say this is what happened. if asked this is what happened. Therefore no self incrimination exists.
I would doubt simple oral testimony by the accused without testing other evidence would reverse the burden of proof.
I am unsure why this particular piece of legislation is causing controversy. But I don’t think self incrimination comes into it. Honestly if there is a risk of self incrimination that would mean the reversal of the burden would fail, I’d be advising the client not to be getting in the witness box. If the answer to the self incriminating question would mean that there was intent, I’d be trying to think of a different defence rather saying sweetly ‘ I had no intention’0 -
They don't have to.I still don't understand how they can prove intent to drive beyond reasonable doubt.
They have to prove every other element of the offence beyond reasonable doubt - that you were in charge of the vehicle; that you were under the influence; that the place where this happened was a public place - but they don't have to prove your intent because of s. 5(8):
"(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."
So, once the prosecution has proved every other element of the offence, the onus of proof passes to you; you now have to show that you did not intend to drive. You don't have to show this beyond reasonable doubt; it's enough that you show it on the balance of probabilities.
It's not likely to be sufficient simply to stand up in court and say that you did not intend to drive; since you are highly motiviated to misremember or to lie, this is probably not going to be enough to show that you didn't intend to drive. So you need to able to point to other circumstances that tend to show this, and there have been numerous examples already in this thread - it was a camper van and you were tucked up in your bunk; you had already texted someone to say that you were not going to drive and would be sleeping in your car; etc. But, depending obviously on the facts of a particular case, some of the circumstances may tell against you - you were in the driver's seat; you had the keys in the ignition; you had evidently already driven some distance before pulling over and stopping; etc.0 -
How is this not contrary to the presumption of innocence granted by our constitution?
The presumption of innocence requires the state prove beyond a reasonable doubt normally, however whilst it applies to ALL offences it's application is not absolute, what this means is most of the elements (the "core" elements as they are called) must be proved beyond a reasonable doubt as outlined above by Peregrinus. When there is a presumption, or reverse burden as it is known the accused is then required to rebut this.As was said, 'Intent', in a criminal proceeding, cannot be determined on 'balance of probabilities'. it must be proven beyond reasonable doubt.
Not when a reverse burden applies as I outlined above.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.
Reverse burdens have been tested and held to be compatible with the Constitution.
Reverse burdens have even been tested at the ECtHR who also held the presumption afforded under the ECHR is not absolute and recognised reverse burdens are essential in criminal offences as otherwise it would be impossible to follow through with many types of offences.It is. How did this even get past the AG's.
There are 100s of such reverse burdens in law, there is no issue for the AG to flag.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".
It has been, and held to be compatible with the Constitution, as I pointed out above the Supreme Court has specifically stated the presumption is not absolute, reverse burdens are accepted in nearly every jurisdiction in the world and by the ECtHR.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.
On what basis do you think it is badly written?
On the point of people not knowing the same applies to many laws, ignorantia legis neminem excusat applies to the law for ALL offences.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.
Intent is presumed by law, not by the Guard, that is a measure chosen by the legislator, just because you don't agree does not mean the law is not badly written, as law goes it is actually written very clear leaving no ambiguity.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.
This is the very reason why reverse burdens are considered necessary because everyone could just say they didn't intend to drive and get off.0 -
joeguevara wrote: »Is it a campervan or a motorhome?
It's camper van, high top with seating come bed and kitchen in the back0 -
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Thank you for your detailed reply.The presumption of innocence requires the state prove beyond a reasonable doubt normally, however whilst it applies to ALL offences it's application is not absolute, what this means is most of the elements (the "core" elements as they are called) must be proved beyond a reasonable doubt as outlined above by Peregrinus. When there is a presumption, or reverse burden as it is known the accused is then required to rebut this.
Not when a reverse burden applies as I outlined above.
Reverse burdens have been tested and held to be compatible with the Constitution.
Reverse burdens have even been tested at the ECtHR who also held the presumption afforded under the ECHR is not absolute and recognised reverse burdens are essential in criminal offences as otherwise it would be impossible to follow through with many types of offences.
There are 100s of such reverse burdens in law, there is no issue for the AG to flag.
It has been, and held to be compatible with the Constitution, as I pointed out above the Supreme Court has specifically stated the presumption is not absolute, reverse burdens are accepted in nearly every jurisdiction in the world and by the ECtHR.
On what basis do you think it is badly written?
On the point of people not knowing the same applies to many laws, ignorantia legis neminem excusat applies to the law for ALL offences.
Intent is presumed by law, not by the Guard, that is a measure chosen by the legislator, just because you don't agree does not mean the law is not badly written, as law goes it is actually written very clear leaving no ambiguity.
This is the very reason why reverse burdens are considered necessary because everyone could just say they didn't intend to drive and get off.
This is a subject I would like to know more about.
Interesting document here:The presumption of innocence is not explicitly stated in the Constitution but it is implicit in the requirement of Article 31.1 that “no person shall be tried on any criminal charge save in due course of law”. The concept of presumption of innocence is fundamental to the Irish legal system and is internationally recognised as an essential safeguard. It is the cornerstone of the criminal justice system. An accused person is presumed innocent until proved guilty. The burden of proving this guilt is on the prosecution and it must be proved beyond a reasonable doubt.0 -
Thank you for your detailed reply.
This is a subject I would like to know more about.
Interesting document here:
It really can be a very complicated and confusing area of law where reverse provisions apply.
Note the important point the document makes:-There are exceptions to the rule that the prosecution bears the burden of proof in relation to every issue arising in the course of a criminal trial.
As I said the presumption is not absolute, something which has been held many times by the Supreme Court and the ECtHR, such reverse provisions have been tested and held compatible with the Constitution, likewise the ECtHR has held they are compatible with the ECHR.0 -
On what basis do you think it is badly written?
Because under Section 5 of the RTA, simply being in a car without the keys in the ignition (or even having the keys!) does not stop the arresting officer from forming the opinion that you are in charge of the vehicle.
Because in other jurisdictions legislation provides a defence to the offence of being "in charge". Irish legislation provides no such safeguards. Secondly people's intent to drive is second guessed by a guard (the mere presence of being in the car, makes you in charge of it) which must be rebutted and then decided by a court on the balance of probabilities.
In Australia, for example.
Section 79(6) of the legislation, provides a defence to the offence of being in charge. It provides that the court shall not convict a person of being in charge where the person has satisfied the court that at the material time they:- by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of the motor vehicle; or
- not being in that motor vehicle, by some action;
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I have a Motorhome and this law gets discussed a lot on campsites. a motorhoming guard told us what would be crucial is if you are allowed to park and sleep there overnight due to local bye laws, landowners permission or whatever.
I.e some scenic spots have dedicated Motorhome parking facilities, you can park in one of these, sit in the drivers seat with keys in ignition getting smashed and you’d probably be ok.
But if your parking somewhere with a sign “No Camping - No Overnight Parking “
You can be tucked up in your pajamas and get done.
The logic being when parking you must have had a possible intent to drive or at least parked in the knowledge that there was a possibility you would be woken up and asked to move on.0 -
I'm not sure this helps, STB. The Queensland leglislation that you quote (Transport Operations (Road Use Management) Act 1995 (Qld) section79(6))is the same as the Irish legislation in this important respect: it puts the onus on the defendant to show that he did not intend to drive; if the court is be satisifed by evidence that the defendant had manifested an intention of refraining from driving it must not convict.Because under Section 5 of the RTA, simply being in a car without the keys in the ignition (or even having the keys!) does not stop the arresting officer from forming the opinion that you are in charge of the vehicle.
Because in other jurisdictions legislation provides a defence to the offence of being "in charge". Irish legislation provides no such safeguards. Secondly people's intent to drive is second guessed by a guard (the mere presence of being in the car, makes you in charge of it) which must be rebutted and then decided by a court on the balance of probabilities.
In Australia, for example.
Section 79(6) of the legislation, provides a defence to the offence of being in charge. It provides that the court shall not convict a person of being in charge where the person has satisfied the court that at the material time they:- by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of the motor vehicle; or
- not being in that motor vehicle, by some action;
But it's tougher than the Irish legislation in several respects:
First, it's not enough for the defendant to show that he lacked an intention to drive; he has to show that he manifested a positive intention not to drive.
Secondly, he has to show this beyond reasonable doubt, whereas under the Irish legislation the burder of prof is only on the balance of probabilities.
Thirdly, there are a limited number of ways in which the defendant is permitted to show that he manifested an intention not to drive (being in a separate compartment in the vehicle; not being in the vehicle at all by some action), whereas the Irish legislation allows him to rely on any facts at all to show that a lack of intention to drive.
And, fourthly, if you read on through section 79(6) you'll see that even proving all this is not enough; the defendant also has to show that he was not so drunk as to be incapable of forming an intention not to drive.
And, fifthly, he must have no prior convictions within the past 12 months for this and similar offences.
All in all, this is much tougher on defendants that the Irish provision.0 -
Ive been watching this thread but didn't want to post but its going in circles.
I got a 6 year ban for this.
Id went and got 8 cans i parked my car and rang a taxi i was told it could be 30 minutes i said grand,i was talking to my friend on the phone while waiting i said feck it ill have a can i was going to my friends house anyway so i opened the can my keys were in the console (think that's what it's called)anyway i slide the cover over and my keys were out of sight i got a call from the taxi and he asked where I was so i took my keys out and put them in the ignition to give him my location from sat nav,i got a knock on my window by a garda and went to a cell for the night so a 6 year ban and 1 year probation,my probation officer let me finish after about 8 months and i can apparently now try to get my license back after 3 years.
Using my phone now so just to add the taxi was more than 30 minutes so id 3 cans thinking grand im doing nothing only waiting for that taxi how very wrong i was.0 -
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Peregrinus wrote: »I'm not sure this helps, STB.
Thanks for at least reading the legislation. My point is regardless of the qualifiers, that the Aussie legislation provides in law a defence to the offence of being in charge.
It recogsises that you could be at least be in the car, but not in the drivers seat and be considered not to be in charge. At the very least people in RV's etc. I'm not looking for loopholes in legislation for people who DD to get off. I think there needs to be a distinction between the two offences as Section 4 and 5 end up in the same penal consequences, although one is base upon unknown but presumed intent.0 -
The thing to note here is that the QLD offence is much wider than the Irish offence. Under the QLD legislation, the elements of the offence are:Thanks for at least reading the legislation. My point is regardless of the qualifiers, that the Aussie legislation provides in law a defence to the offence of being in charge.
It recogsises that you could be at least be in the car, but not in the drivers seat and be considered not to be in charge. At the very least people in RV's etc. I'm not looking for loopholes in legislation for people who DD to get off. I think there needs to be a distinction between the two offences as Section 4 and 5 end up in the same penal consequences, although one is base upon unknown but presumed intent.
- under the influence
- in charge of a motor vehicle.
If the prosecution proves those two things, a conviction will ensue unless the defence can prove beyond reasonable doubt that the defendant manifested an intention not to drive either by being in a separate compartment or by not being in the vehicle at all (and can prove a number of other things besides).
By contrast, in Ireland, the offence has four elements:
- under the influence
- in charge of a motor vehicle
- in a public place
- intent to drive
The prosecution has to prove three of them; the fourth is presumed, unless the defendant rebuts the presumption.
But rebutting the presumption in Ireland will be much, much easier for a defendant than establishing the "manifested an intention" defence in QLD - there is less to prove, the burden of proof is lower, and there is no limitation on the facts on which the defendant can rely. I think it's pretty clear that anyone who could establish the QLD defence would also succceed in rebutting the Irish presumption, whereas many people who could rebut the Irish presumption would not succeed in establishing the QLD defence.0
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