In charge of a vehicle with excess alcohol

s.5(1)(b)Road Traffic Act 1988

Being in charge of a motor vehicle on a road or other public place with alcohol in the breath, blood or urine above the prescribed limit.

In charge of a vehicle with excess alcohol · Road Traffic Act 1988, s.5(1)(b)Card 70 / 85

Points to prove

Was in charge of
A motor vehicle
On a road or other public place
After consuming so much alcohol that the proportion of it in their breath, blood or urine exceeded the prescribed limit

In charge – not defined in the Act. It is a question of fact. DPP v Watkins (1989) sets out the factors, such as whether the person is the owner or recently drove, where they were in relation to the vehicle, whether they had the keys, and what they intended. An owner or recent driver will usually be in charge unless they have handed control to someone else or otherwise given it up.
Motor vehicle – s.185(1): a mechanically propelled vehicle intended or adapted for use on roads.
Road – s.192(1): any highway and any other road to which the public has access, including bridges a road passes over.
Public place – not defined in the Act. The question is whether the people using the place are members of the public or a special class allowed in for a particular reason (DPP v Vivier 1991).
Prescribed limit – s.11(2): 35 microgrammes of alcohol per 100 ml of breath, 80 milligrammes per 100 ml of blood, or 107 milligrammes per 100 ml of urine.

No likelihood of driving – s.5(2): the defendant must prove that, at the time, there was no likelihood of them driving while still over the limit. The burden is on the defendant on the balance of probabilities (Sheldrake v DPP 2004). The court may ignore any injury to them or damage to the vehicle (s.5(3)).
Drinking after the event – Road Traffic Offenders Act 1988, s.15(3): the defendant must prove they drank after they stopped being in charge, and that without that drink they would not have been over the limit.

Driving or attempting to drive over the limit is the separate s.5(1)(a) offence, with obligatory disqualification.
Unlike s.5(1)(a), disqualification here is discretionary. If the court does not disqualify, it must endorse 10 points.
The vehicle must be a motor vehicle. The “in charge when unfit” offence under s.4(2) is wider and covers any mechanically propelled vehicle.

Legislation: Road Traffic Act 1988, s.5(1)(b) (opens legislation.gov.uk in a new tab)
Mode of trial: Summary only
Maximum penalty: 3 months' imprisonment and/or a fine of up to £2,500 (level 4); discretionary disqualification, otherwise 10 penalty points