Question: Is it illegal to sleep in my vehicle when exceeding the prescribed alcohol limit?
It's the early hours of the morning, all of your friends have gone home early. The night out has well and truly ended. Your pre-booked taxi hasn't turned up and you have no other option but to sleep in your car. The police are called by a concerned member of the public and they find you asleep in your vehicle.
This might surprise you, but the police are not allowed to just breath test you there and then. The police can only carry out a breath test for the following reasons:
- You have been involved in a road traffic collision
- You admit to the police that you have have consumed alcohol
- A member of the public reports you to the police for drinking alcohol in your vehicle
- The police suspect that you have been drinking alcohol
- The police suspect that you may have driven the vehicle
The Law
Under Section 5(1)(b) of the Road Traffic Act 1988, it is an offence to be in charge of a motor vehicle whilst exceeding the prescribed limit (the prescribed alcohol limit in England and Wales is 35μg/l). See our web page on 'drunk in charge' cases for further details surrounding this offence.
Defences
When it comes to defending a charge of being drunk in charge, there are several potential arguments that can be made. Some possible defences include:
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No intention to drive: If you can demonstrate that you had no intention of driving the vehicle while exceeding the prescribed alcohol limit, you may be able to argue that you were not "in charge" of the vehicle. For example, if you were simply waiting for a sober driver / taxi to arrive or had pulled over to sleep off the effects of alcohol, you might have a defence. This is a statutory defence covered by Section 5(1)(b)(2) of the Road Traffic Act 1988. It also worth noting that that under Section 5(1)(b)(3), the Court can disregard any injury or damage to a vehicle when considering someone's intention to drive.
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Lack of evidence: If the prosecution fails to provide sufficient evidence that you were in charge of the vehicle while exceeding the prescribed limit, you may be able to challenge the charges. This could involve questioning the reliability of witnesses, the accuracy of breathalyser tests, or the legitimacy of police procedures.
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Emergency or duress: In some cases, if you can show that you had a genuine emergency for being in the vehicle while exceeding the prescribed limit, it might be possible to argue that your actions were justified. However, this defence would require strong evidence of an immediate and significant danger that required you to be in the vehicle.
M.A.J Law offer free initial advice to anyone charged with drink driving. We can explain your options in detail from the outset.
