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This is a charge that is quite common but one that we tend to find members of the public are unaware of.
It occurs when a person is found to be over the limit and in charge of their vehicle but not actually driving. This will often be a situation where a person has been on a night out and for one reason or another ended up in their car.
It is a serious matter and can often lead to a disqualification from driving similar to a “drink driving” charge. It is possible to avoid disqualification if found guilty with 10 penalty points being imposed as a minimum.
Skilful preparation of a defence combined with solid representation can often lead though to an accused person being found Not Guilty.
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A case of being drunk in charge of a vehicle is a question of fact and evidence.
Usually, the burden of proof lies with the prosecution, and the standard of proof is beyond a reasonable doubt.
For this defence, the burden of proof rests with the accused, and the standard of proof is ‘on the balance of probabilities. The balance of probabilities is a lower standard than beyond a reasonable doubt.
The defence can be established by uncorroborated evidence. This means the defence can be established by the evidence of the accused alone.
Normally though, expert medical evidence is required in such cases to allow the court to understand when you would have been fit to drive the car.
The court will consider your intentions in light of all the surrounding circumstances.
You must show that there was no likelihood of driving up to the point that you were no longer impaired. This will mean giving evidence to show that you had no intention to drive the car the morning after as well as at the material time.
We often meet with clients that did not realise being “drunk in charge of a motor vehicle “was a criminal offence until they are charged.
Their position is often that they simply intend to sleep in their car. However, at this stage, all is not lost; you may have a defence. Legal aid may also be available.
A driver will be regarded as not being in charge if they prove that at the material time, there was no likelihood of them driving. This applies to the entire period that they remained unfit to drive.
We offer a fixed fee (subject to terms and conditions) in relation to road traffic prosecutions.
YOUR QUESTIONS ANSWERED
If you are arrested or detained for a crime in Scotland, the police must inform you of your rights, such as the right to legal representation. You will be taken to a police station, where you may be detained for up to 12 hours without charge. After this time, you must either be charged or released, or the period extended. If charged, you may be held in custody for up to 24 hours before being brought before a court. The court will then decide whether to grant bail or remand you in custody until your trial.
Yes, in Scotland, being released on an undertaking is similar to being released on bail. Undertakings can be issued to individuals who have been arrested or charged, specifying a date and time to appear in court. A bail undertaking typically involves being charged with a crime and then released with a promise to attend a hearing. Both bail and undertakings come with certain conditions that must be met, such as attending all court dates and not committing any further offences. However, breaching bail or undertaking conditions can lead to prosecution and a prison sentence of up to twelve months.
Yes, if you are in police custody in Scotland, you have the right to free legal advice from a solicitor. This advice is available over the phone or at the police station. You should be informed about this right before being questioned, and the police must wait for the solicitor to arrive before questioning begins. However, if you do not want a solicitor present during questioning, you can waive this right, although it is not recommended. If you are under 18 or a vulnerable adult, you must have a solicitor present during questioning.
If your case goes to court, the Procurator Fiscal will decide which court it will be heard in. The court will review the evidence and then make a decision based on the facts of the case and the relevant law. If you are found guilty, you may face penalties such as fines, community service, or imprisonment. If you are found not guilty, you will be acquitted of the charges, and your case will be closed. It is important to seek legal advice and representation if you are facing criminal charges in Scotland.
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