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Section 5(1)(b) of the Road Traffic Act 1988 creates an offence if a person is
in charge of 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.
Firstly, proper consideration has to be given as to whether the Crown have
sufficient evidence to prove that an accused person is in charge of the vehicle
in the legal sense. There are a number of relevant factors and ultimately the
Court will reach a decision as a matter of fact and degree.
It is a defence for a person to prove that at the time of the offence, the
circumstances were such that there was no likelihood of his driving the vehicle
whilst the proportion of alcohol in his breath, blood or urine remained likely
to exceed the prescribed limit.
Under normal circumstances, a toxicology report will be required in order to
establish the defence. The purpose of the report is to satisfy the Court, on a
scientific basis, the time at which an accused’s alcohol levels would have
reduced below the prescribed limit. In practice, detailed instruction is
required and we would always recommend a contemporaneous record of events is
kept in order to assist matters.
The success of the “no likelihood of driving” defence rests, to a large degree,
upon credibility. Careful consideration requires to be given to all the
surrounding circumstances in order to exclude any likelihood that the vehicle
would have been driven whilst the accused exceeded the prescribed limit. The
standard of proof is on the balance of probabilities and, as always, it is
essential that this type of case is prepared and stated to the very highest
standard.
The Court, upon conviction, can either endorse an offender’s licence with ten
penalty points or impose a period of disqualification. It is perhaps worth
noting that if the Court does not uphold the statutory defence of no likelihood
of driving whilst over the prescribed limit then, by implication, it is
accepting there is a likelihood that an offence under Section 5(1)(a) of the
Road Traffic Act 1988 would have been committed had it not been for the
intervention of the Police. Accordingly, periods of disqualification are
routinely imposed and therefore specialist representation is essential if you
value your driving licence.
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ml@theroadtrafficlawyer.com |
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