Every motorist is aware that it is a criminal offence to drive your vehicle when drunk but, as with any law, it requires breaking down to understand exactly what constitutes an offence. It is not illegal to drink and drive for example, only illegal to drive whilst over the limit and under certain circumstances. If you find yourself facing an allegation of drink driving, you will likely want a drink driving solicitor to help or advise you.
In UK law, it is the Road Traffic Act 1988 that enshrines the majority of the well-known motoring offences and drink driving falls specifically under section 5(1)(a) of this Act and states as follows:
Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit.
(1)If a person—
(a)drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.
When you break this down there are three elements that make up the offence of drink driving and the motorist must
- Be driving or attempting to drive a motor vehicle
- Whilst on a public road or in a public place; and
- Whilst the amount of alcohol in his breath, blood or urine exceeds the prescribed limit
All three of these elements must be proven if the court are to find a motorist guilty of drink driving.
Driving or Attempting to Drive
This is mostly self-explanatory and the motorist must be “driving” but what exactly constitutes driving? Does the engine need to be running? What if your vehicle is being towed by a recovery vehicle? These are just some of the questions that make you realise that sometimes these cases can be more complicated than they seem on the surface.
Section 192 of the Road Traffic Act gives some basic guidance on definitions and interpretations but it is not hugely helpful but states as follows:
…“driver”, where a separate person acts as a steersman of a motor vehicle, includes (except for the purposes of section 1 of this Act) that person as well as any other person engaged in the driving of the vehicle, and “drive” is to be interpreted accordingly,”
The Act says little about how “drive” should be interpreted however. Various cases have addressed the issue as a general rule, if you’re responsible for the steering of a vehicle whether the engine is on or not, or you are considered to be in control of it at the time then that will amount to driving.
What is a Motor Vehicle?
Another question with a seemingly obvious answer and one that has undergone significant scrutiny over the years . The specific term “motor vehicle” is defined in section 185 of the Road Traffic Act as well as section 136(1) of the Road Traffic Regulation Act as a “mechanically propelled vehicle, intended or adapted for use on road.”
Although the above is a legal definition it is a matter of face and degree and a court must interpret themselves as to whether or not a vehicle is a motor vehicle at the time of any incident
The terms “mechanically propelled vehicle” and “adapted for use on roads” are not defined in the Act and again, these are matters of fact to be determined but at its most simplified level it is a vehicle that can be propelled by mechanical means and can include electrical and steam-powered vehicles.
Despite not being defined in statute there has been extensive case law (law established by the outcome of other cases) and one of the primary points that arises is the “reasonable man” test and the following cases look at this issue in more detail
Burns v Currell  2 All ER 297
B was found sitting in a go-kart that had a rear-mounted engine, a tubular frame, only one seat and a steering wheel. It had no handbrake, horn, wing mirrors, or springs but there was some evidence that B had only used the go-kart on the un-adapted road once. He was convicted but appealed on the grounds that the go-kart was not intended or adapted for use on roads and was thus not a motor vehicle to which the regulations applied.
During the appeal, it was decided that the test to be adopted was the ‘reasonable man test’ and there must be sufficient evidence before the court to prove beyond reasonable doubt that this fictional ‘reasonable man’ looking at the go-kart would say that one of its uses would be a use on the road.
The appeal was successful in this case and the conviction quashed.
DPP v Saddington Times 1.11.2000
S was driving an unregistered motorised scooter called a ‘Go-Ped’ on a road whilst they were disqualified and uninsured. The vehicle had a 22.5cc engine and was definitely a mechanically propelled machine. However, to prove the two most serious offences, the machine also had to be a motor vehicle, i.e. a mechanically propelled vehicle intended or adapted for use on a road.
At the hearing in the the magistrates court, they decided that the vehicle was not a motor vehicle. This decision was appealed and the higher court was asked to declare that the machine was in fact a motor vehicle which they ultimately did.
DPP v King  EWHC 447 (Admin)
K was stopped by police whilst riding a ‘City Mantis’ electric scooter on a public road. The scooter looked like a bicycle except that it did not have any pedals or other means of manual propulsion and it was capable of speeds up to 10 miles per hour. K was charged with driving a motor vehicle whilst disqualified and with no insurance.
At trial the issue arose regarding whether the scooter was a motor vehicle. K was acquitted and the case was passed to the High Court following the decision of the trial judge for definitive determination of whether a ‘City Mantis’ electric scooter was a motor vehicle as defined in the 1988 Act. The Appeal was allowed and the case was remitted with a direction to convict. The scooter was a motor vehicle according to section 185 of the 1988 Act.
Partly as a result of cases such as these above, the Segway Personal Transporter is currently considered a motor vehicle and subject to the provisions of the above legislation.
A Road or in a Public Place
We receive many enquiries from motorists who want to argue that they were on private property and therefore cannot be guilty of drink driving but this is also not as straightforward an issue as you may initially think.
There are various definitions of the word “road” and section 142 of the Road Traffic Regulation Act 1984 says that a road is as any length of highway or other road to which the public has access and includes bridges over which a road passes.
The OXford Dictionary defines it as a line of communication for use of foot passengers and vehicles but then in Oxford v Austin  the court decided it was a definable right of way between two points.
Whilst there are some exceptions, if members of the public or part thereof have access then the area will be considered a “public place” and this is usually why arguments of a car park being private property will fail but it is for the Prosecution to prove beyond reasonable doubt that the location of an offence was a road or public place.
Whilst Over the Prescribed Limit
This is the heart of the allegation and the wrongdoing element that makes it a criminal offence.
Once the two other elements have been proven beyond reasonable doubt, the prosecution must lastly prove that the driver was above the prescribed legal limit for alcohol (or drugs depending on the allegation).
The legal limits are confirmed in section 11 of the Road Traffic Act as follows:
- 35 microgrammes of alcohol in 100 ml of breath
- 80 milligrammes of alcohol in 100 ml of blood
- 107 milligrammes of alcohol in 100 ml of urine
During the course of an investigation into whether an offence of drink driving has been committed, the police may require a suspect to provide a sample for analysis. The most common sample taken is a breath sample but there are instances where blood or urine are taken as an alternative
It is this sample, known as an “evidential sample” that the Prosecution will use as part of their case against you. In most cases we defend, it is by challenging the reliability of this sample that we are able to successfully defend drink driving cases and avoid a conviction. All three elements must be proven for a conviction of drink driving to be considered safe.