Safe Speed Forums

Both dcwalley and me drive cars with rotor arms.

As for proof that you had no intention to drive, I disagree with you. If someone slept in their car but had given the keys to someone else with no access to them. I would count that as disabling and proof.

But if someone told me that they had taken the rotor arm off, kept it in their pocket and this was agreed by the officer on the scene, then I would accept that that person had foreseen the potential mis-interpretation of their circumstances and taken steps to demonstrate that they didn't intend to drive it then I would accept their version of events if not challenged by other evidence.

I can't see that any reasonable sober person, would suggest that your average drink driver, whips the rotor arm off while he scraps the ice off as a precaution against a snooping policeman, then shoves it on just as he is ready to go.

I would accept that a car jacked up on bricks was sufficiently disabled to show no intention to drive. However if the defendant claimed he opened the door and was about to get the jack and use the bricks that were scattered nearby, but PC Plod turned up 5 mins too early, then I'm afraid human nature is such that the defendant will need an Oscar performance to convince whom ever he was innocent.

So I take it that Fisherman would convict me in my road-side camping! And he would convict every happy camper in a camp site (a public place) for sitting on their car drunk reading a book or listening to the radio? No wonder ther is a prison over crowding problem.

Its not what the reasonable sober person would suggest that matters. Its what your average drink driver is prepared to do to avoid conviction. Over the years I have seen drivers use petrol as a mouthwash to fool the breathalyser, I have heard drivers invent rows with their partner, let down a tyre and even kick in a headlight to try to convince the court they were not intending to drive. All failed to convince us due to other factors, in one case the wife who was supposed to have thrown the husband out after a row had phoned the police asking if he had been involved in an accident as he was late home from the pub.

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

I am sorry but you are confusing liklyhood with intention - there is a difference. Its probably 100% likely that the 'camper' will drive if the forest he is by sets on fire. However he had no intention as he would not have camped if he knew or foresaw the danger. Then he has the defence of duress of circumstances available. But what we are discussing is the pitched camper - I can't see how anyone would conclude that he was going drive off in the 'beauty spot' scenario, whilst, as I clearly stated, on the dual carriage way lay by would be less convincing.

And may I ask what you were doing in a lay-by at 3am? And I fail to understand why nomadic workers should concern themselves with whether or not you boot was locked or not. A very neo-nazi stereotypically prejudmental attitude to nomadic workers, if I may say so. But what did you do? I'd have just got out and asked if there was a problem. You do come from a very funny part of the world!

Your drunk driver sounds a bit fishy to me. I would expect evidence of empty alcohol containers at the scene at least - but that is still not proof they were drank when stopped, not a claim that he phone mummy and daddy! Just what did that prove - he could have been hammered, drove, stoped and phoned. I think court guidlines would deliver a different verdict in other parts of the UK - otherwise every drink driver could keep a half empt bottle of whiskey by their side and claimed they had pulled over. Some weird justice where you come from - so have I got you right, all you have to do is phone home and they turn up to say that you did so and you wern't drunk? Your having a laugh, surely?

However I have a very different experience. Pulled off motorway coming down from Scotland as I had to sleep. Kipped on back seats and plod turned up at 6am. They checked I was ok but didn't breathalise me. Afterall they couldn't with no resonable grounds of suspicion, plus I have an honest face!

I stated that the family gave evidence to confirm he had contacted them and told them that he would be staying in his car for the rest of the night and would not drive until the morning. That evidence was enough, on balance of probabilities, for the court to decide that there was no likelihood of him driving while over the limit.

The idea of a court having in evidence a positive breath test but accepting a phone call home as evidence of being under the limit came entirely from you.

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

Sound like an easy cop out to me, just get your pals to say you had phoned them and said you weren't going to drive. then got hammered in the car!!

Is that what people do in your neck of the woods? Stop because they are too tired to continue (applaudable) but then get hammered with some booze they just happened to have in the car - not what normal people do around here!

And you position is now at odds with your interpretation of Martin 1988 (Appeal 1989). You did not accept that Mr Martin could not have got someone else to have driven. (I think it was Mr Martin's brother who gave evidence that he had refused to drive). So why do you accept the word of these 'parents' but refuse to accept the word of (Mr Martin's brother ?). Surley there is some inconsistency in your reasoning here?

I didn't accept the word of anybody in the Martin case. I didn't get the chance as i wasn't involved. I abide by the decision of those who did hear the case because thats what the law requires me to do.
In the case I was involved with, I did hear the evidence. All of it, from both sides. My colleagues and I decided that, on the balance of probabilities, it was more likely that the parents were being truthful than untruthful. That raised a reasonable doubt, which must always go in favour of the defendant. Hence the not guilty.

Its entirely possible he intended to drive, from a personal point of view I think he probably did and that the call home was to cover his back. Fortunately we live in a country where "probably" is not sufficient to find someone guilty of a crime.

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

Fisherman: Still here!!! You said you were not going to respond to me - so how is anyone meant to take your words seriously now?

I don't have time or inclination to scroll back through old posts to copy and paste them as you do, but I distinctivley remember you expressing your opinion that a Duress of Circumstances defence would have failed if Martin had been allowed it in the first instance as your opinion was that 'the other male' (Martin's brother or a lodger?) could have driven Martin's wife and you didn't accept his evidence that he refused to do so leaving Martin the only person available to driving.

So I fail to see how you can dismiss the word of a witness in Martin, but accept the word of parents.

Would you like me to search these pages? I think it was in the 118mph thread.

If you want to walk away, thats fine with me - it ends. But don't start raking up the past on the next post and moaning to your pals on here.

Assumed guilty, but able to present tangible evidence to demonstrate innocence?

The others, unable to demonstrate they had no intent to commit the crime they didn't commit, automatically guilty...

Personally, as a snapshot of UK "justice" today, it scares the crap out of me.

_________________
Fear is a weapon of mass distraction

Hairy Ben: Chill out, that isn't a snap shot of UK justice, just what happens when Fisherman is on the bench. If we could just find out which magistrates court Fisherman presides in, and avoid it, we have nothing to worry about.

However Fisherman's comments justify the advice of most lawyers to seek trial by jury (rather than by legally un-qualified lay people acting as magistrates) when they have a reasonable defence and a trial by jury is available to their charge.

Some people cynically say its lawyer running up he costs, but you can decide for yourself - would you like Fisherman deciding on your guilt or innocence or 12 of your peers?

I changed my mind, at least I haven't told any lies.




On the subject of the Martin case, this what you remember I posted.



This what I actually posted.


No mention of any details whatsoever of the Martin case, just a short explanation of the only part of the Martin case which is of relevance to the lower courts.

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

The case was brought to court because the police and CPS were of the opinion that they had enough evidence to secure a conviction for drunk in charge. I understand that the defendant probably felt he was assumed to be guilty. The important factor in this is that the court made no such assumption and the CPS were required to present their case, with the defence having the opportunity to test that evidence by way of cross examination.

When the CPS case was complete there was no doubt the car was in a public place, he was over the alcohol limit and he was in the drivers seat with the keys. Note that they do not have to show he intended to drive. At that point, and only at that point, was there any possibility of him being convicted of being drunk in charge.

The law allows a statutory defence to this charge which does not challenge any of the elements of the case (ie alcohol level, public place etc) but relies on the defendant being able to show that there was no likelihood of him driving while still over the limit, and this what the defence put forward. As is usual when defendants are expected to prove something, the level of proof is set at “balance of probabilities” and not the “beyond reasonable doubt” standard required of the prosecution. The court found him not guilty for the reasons I have given in previous posts.

From a personal point of view that sort of verdict gives me confidence that the justice system is indeed independent of government. I understand that it must have been unpleasant for the defendant but the alternative to trial of these cases would be either to remove the defence and convict everybody, or to believe everybody who says they weren't going to drive.

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

Sorry but "balance of probabilities" is not whats practised, and I know that for a fact. In your example the man walked free only because he could demonstrate reasonable doubt the offence of drink driving was going to be committed. The defendant IS guilty, he WAS in charge, the evidence is there to convict him, he has to prove innocence of a different charge, one he wasn't and couldn't be charged with as evidence is non existent and the idea is only speculation, to absolve himself of a "crime" he WAS guilty of.

thats kangaroo court justice mate.

_________________
Fear is a weapon of mass distraction

we will have to disagree, politely I hope, on that issue. I can say is that all our training emphasises the need to follow what the law says on this subject and that I have never seen anything else happen in actual practice when decision making at trial.


I have no doubt that the avoidance of drink driving is why the drunk in charge law exists and can't argue against your comment that he needed to demonstrate he wasn't going to commit the more serious offence of drink driving. I can say with absolute certainty that our decision was made on balance of probabilities.

Again, I can see your point but thats the way parliament wants it and thats how we do it. This forum has lots of posters who post about how they think things should be. My view is that in order to have any chance of putting forward a case with a hope of succeeding they need to base their ideas on an understanding how things really are, rather than how they think they are.

I had always though that a kangaroo court was one which did not listen to evidence, or apply the law as written and followed the Alice in Wonderland principle of "sentence first, verdict later".

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

I prefer to follow the law as it is and not as you think it is.

Paragraph (1) which does require proof of driving or attempting to drive is what is usually called drink driving.
Paragraph (2) which does NOT require proof of intent to drive is what is usually called drunk in charge.
Paragraph (3) states that if the defendant can prove that he had no intent to drive while over the limit he shall not be convicted.

original text can be seen at
http://www.statutelaw.gov.uk/content.as ... esize=6609

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

I don't think I'm wording my point well, basically you can acquit if the person demonstrates no intent to drive, so "drunk in charge" really is about drunken driving and not about being "in charge", the two are linked, but with "in charge" being an evidence-lite alternative.

And for the record, I know someone done for drunk in charge, curled up asleep on the back seat. Given he lived 15 miles away and if he was gonna drive home, woulda done so already, I don't see the "balance of probabilities" being he was about to. I understand why the law exists, but IMO it's being enforced with no restraint, "technical infringements" rather than doing people for crimes they were committing or guilty of intent. And given we're talking here about doing people for a crime that, in cases like the one I mention, a) the guy concerned was specifically at pains to avoid, and b) can be ruinous to a working man, it's pretty sick.

_________________
Fear is a weapon of mass distraction

i must admit that I too have slept on the back seat of a ca,r after a party in a carpark but have heard since of people being done for it and it does make you wonder why people do try and "do the sensible thing" when you might as well take a risk and drive home if you are going to get done anyway.

_________________
My views do not represent Safespeed but those of a driver who has driven for 39 yrs, in all conditions, at all times of the day & night on every type of road and covered well over a million miles, so knows a bit about what makes for safety on the road,what is really dangerous and needs to be observed when driving and quite frankly, the speedo is way down on my list of things to observe to negotiate Britain's roads safely, but I don't expect some fool who sits behind a desk all day to appreciate that.

At last, an interesting question!!

Enforcement of the law starts with the general public. Some people report every crime they see. Others never do.

All police officers have discretion over what to do. A small difference, for example the drivers attitude, may make the difference between a ticket and words of advice.

The CPS have their tests to apply. Both of which are difficult. How do they judge if a court is likely to convict on the evidence they have? At some stage they must also consider how a particular witness is likely to stand up to cross examination. The public interest test could be even more difficult to decide.

The prosecutor in court needs to judge how hard to push his witnesses, what to ask about, what to leave out.

The defence lawyer has similar decisions to make.

The court need to consider what is in front of them. Including credibility of witnesses. Is that witness fidgeting in the witness box because they are too hot, too cold, need to go to the toilet but too shy to ask, nervous, got back ache, lying, drunk, having hallucinations, trying to slant their evidence to assist whichever side called them, spotted the the defence lawyers toupee (not lawyers wig) slipping, worried about her baby which is being looked after by the court usher, just realised his car park ticket has expired ? All of those have happened when I have been in court.

For the bench the verdict may take a long time to arrive at, but will consist of small fairly easy steps. The hard bit is sentencing. There are lots and lots of variables. I am sure that the approach to law enforcement is as consistent as is possible, bearing in mind the numbers of people involved.

From a personal point of view, I find the different sentences for apparently similar offending somewhat reassuring, as it shows me that the sentencing came from consideration of ALL the individual factors of that particular crime and that particular offender and wasn't just read off a chart.

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

It is one of those reverse burden of proof things. He needed to show, balance of probabilities, that there was no likelihood of him driving while still over the limit. I can't be categorical, and this is personal opinion not court rules, but saying if he was going to drive he would already have done so isn't a particularly convincing argument. There are lots of cases of people who slept for several hours, woke up feeling cold and took a chance to get home to a warm bed.


I do see what you mean and agree with most of it. Problem is that being drunk in charge is a crime. The sentencing guidelines do try to take circumstances into account.

The legal limit for alcohol being 35 in breath, courts are guided to impose points and not a ban at levels up to 59. From 60 to 89 the guide is points or ban (in that order) meaning that some aggravating feature would need to be present in order to ban. From 90 to 119 the guide is ban or points (in that order) meaning that points are still possible if there are any mitigating features. From 120 upwards only a ban is appropriate. So to be guaranteed a ban (all other things being equal) you need to be at 120, even then the guide is 6 months with 12 months when you get towards 150.

By comparison if driving or attempting to drive you get 12 months ban at the bottom of the scale and 150 gets you three years or more.

_________________
I am not a lawyer and can't give legal advice. I do have experience of the day to day working of courts and use that knowledge to help where possible. I do not represent any official body and post as an individual.

My concern about 'Drunk in Charge' as opposed to 'Driving whilst drunk' is that it is clearly a legislative device to make for 'easier' prosectutions. For example, when a driver has clearly been driving but evades the police long enough to throw the keys in the river or jump in the back seat etc etc.

But, if you're going to do that then you have to trust the police to enforce with discretion. I'm afraid that to my mind prosecuting someone who is over the limit but fast asleep in the back seat of a car, in a carpark with the keys in the glove box is against the 'spirit of the law' and bordering on being immoral.

Of course in the brave new (I have to say New Labour) world there is no 'spirit of the law' only the 'letter of the law'. That's fine but that then gives you, me and Nick Freeman the moral freedom to mount rigorous technical defences regardless of how tenuous they may appear.

Ironically this shift towards absolute offences, legislation to make for 'easier' convictions coupled with misconcieved, conviction driven, policing targets is doing for more to undermine, Society, public morality and 'Respect' than Thatchers 'No such thing as society' era ever did.

The thread has been unlocked.

Please post any off topic responses here; subsequent off topics posts posted here will simply be expunged. The other thread may yet be locked and/or deleted.