Definitions

Section 5(1) of the Road Traffic Act 1988 (RTA) states that if a person drives or attempts to drive a motor vehicle on a road or other public place, or 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 or her breath, blood, or urine exceeds the prescribed limit, he or she is guilty of an offense. Unfortunately, the word "drive" is not defined, but in fact, three points need to be proved: first, that the person is in the driving seat or has control of the steering; second, that the person charged must have something to do with the propulsion of the vehicle; and finally, that what the individual was doing must fall within the normal meaning of driving.

Attempting to drive has produced an abundance of case law, but it has been held that acts of mere preparation (e.g., checking the engine, finding keys, or opening the car door) do not amount to attempting to drive but steps on the way to what would have been driving, if not interrupted, may amount to an attempt (e.g., putting the key in the ignition). However, in a recent test case in the United Kingdom, when police found a man asleep in his van with the doors locked with a BAC over the legal limit, judges ruled by a majority decision that the laws that led to his conviction were disproportionate and violated the presumption of innocence to which he was entitled under Article 6(2) of the European Convention on Human Rights (29).

In Section 185(1) of the RTA, a motor vehicle is defined as a "mechanically propelled vehicle intended or adapted for use on a road"—the words "mechanically propelled" are intended to have a wide meaning and will cover any transmission of power from the engine to the wheels by mechanical means. Similar regulations are to be found throughout the European Union, and if further evidence is needed regarding just how vague the definition of "mechanically propelled" may be, one needs only to consider the arrest in 1997 of a paraplegic Scandinavian who was arrested (and tried) for unsafe driving of his wheelchair.

In Section 192(1) of the RTA, the word "road" is defined as any highway and any other road to which the public has access and includes bridges over which a road passes. Public place is a question of fact for the court to determine. In English law, a car park attached to a public house was held, during opening hours, to be a public place because it was attached to a tavern that offered its services to all members of the public, whereas the same car park would not be regarded as a public place if it were attached to a private club (30).

"In charge" is a question of fact, not law. As a general rule, the person remains in charge until he or she takes the vehicle off the road unless some intervening act occurs (e.g., handing keys to another person prevents him or her from retaining control). There is a statutory defense in that a person shall be deemed not to be in charge if he or she can prove that at the time, the circumstances were such that there was no likelihood of his or her driving the vehicle while the proportion of alcohol in the blood was over the prescribed limit. That the driver was injured or that the vehicle was damaged may be disregarded by the court if it is put forward as a defense. Therefore, the court is entitled to consider what the position would have been had the defendant not been prevented from driving by damage or injury. Of course, the state must always prove that the defendant was actually driving the car. That may prove difficult if, as is the case in many accidents, there are no witnesses.

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