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FightBack Forums _ Speeding and other Criminal Offences _ In charge with excess alcohol

Posted by: Localdriver1 Wed, 20 Dec 2017 - 23:24
Post #1341366

Evening all, I’m new here and have a query after the stupid situation I have got into, completely stupid of myself and 100% out of character, being 30 with completely clean criminal record and 12 years completely clear driving record. I fully understand I have done wrong and expect my licence to be revoked with no one to blame but myself.

Now that’s out of the way,

Recently I was out for drinks, stupidly got in the car to sleep it off, after 4 hours or so I drive 1 mile and decided again this was stupid and I pulled over on a lay-by and slept some more, I was awoke by police and failed roadside breath test and was read my rights and took to the local station where I managed a breath test reading of 60-65, I can’t renember and didn’t get a copy of the print out

I’m curious, what’s on my charge sheet is ‘in charge with excess alcohol in breath 2017/12/17’ was in charge of a motor vehicle on a road within vicinity of a local road name

From that above will I be chased for drink driving when at court or is that offence what I will be charged with ?
I can’t recall if I told the officer that I attempted the initial 1 mile, or if I told him before I was cautioned in general chat before I was breath tested and before I was cautioned.

What I did or didn’t say to the officer I’m unclear in my own mind as was still under the influence and had been just woken from a sleep so generally head up bum.

As said, I’ve done wrong and know it and now I’m just trying to assess the process and how it’s going to go. I have a solicitor meeting tomorrow and court is on 8th January. I was fully respectful and cooperative at the time
Thanks for any reply

Posted by: peterguk Wed, 20 Dec 2017 - 23:27
Post #1341367

QUOTE (Localdriver1 @ Wed, 20 Dec 2017 - 23:24) *
will I be chased for drink driving when at court or is that offence what I will be charged with ?


You will only have to answer the charge for which you have been charged with.

Posted by: Localdriver1 Wed, 20 Dec 2017 - 23:37
Post #1341370

So there is no chance of the court questioning how my car got to where it was found? And no chance of upgrading the charge to actual drunk driving?

I’m hoping my solicitor (who I have also never required in my life bar a house purchase) can guide me more on this. But it’s good to get some initial feedback, hence my post.
Some research suggests a 10 point ban at times is possible for the lesser drunk in charge offence, however I am fully preparing myself to loose my license
My manager at work is more than willing to do a profile for me, explaining my character and general behaviour at my place of work, 9 years with recent promotion, extremely rural location with no public transport, required to work shifts and often at short notice etc. Might help, might not, but won’t harm ?

Posted by: Logician Thu, 21 Dec 2017 - 01:26
Post #1341383

You were not charged with driving with excess alcohol because there is no evidence of you actually driving, everybody will realise that you drove to get to the location you were found in, but as there is no actual evidence of that, you have been charged with the correct offence. It will not be upgraded in court. The guidance the court will be following is https://www.sentencingcouncil.org.uk/offences/item/excess-alcohol-in-charge-revised-2017/ As you can see, your reading puts you right at the bottom of the second band. The likelihood is therefore that you will not be disqualified but will receive 10 points on your licence, any other points on your licence now will make you a totter and if your licence is currently clean you are going to have to be extraordinarily careful for the next three years. The band B fine will be a week's net income, and you will get 33% discount off that for a guilty plea, but have to pay a surcharge of 10% (minimum £30) plus costs of £85.

You can see on the page a list of aggravating and mitigating features, no likelihood of driving can sometimes be useful, amounting in fact to a defence, but not so in your case as you would almost certainly have driven home once you woke up. Your manager's reference along the lines you indicate may help to incline the court towards points rather than a disqualification, but still do not plan to drive home from court because in the unlikely event of a disqualification it will be effective immediately.

A general practice solicitor will be unlikely to have much experience of road traffic cases but by all means talk to them. There seems little point in asking a solicitor to accompany you to court, this is a very straightforward case from everything you have told us and you would be better to save the fee towards the fine.

Posted by: Localdriver1 Thu, 21 Dec 2017 - 08:27
Post #1341393

Many thanks for the detailed reply

I don’t mind spending the money to be honest, I’m not rich but I’m happy to pay to have some support in court, the whole situation is quite daunting to me

As for 10 points I would happily take along with the fine

I’m experience then would it be fair to admit guilt and take it on the chin in court, that sounds like the sensible option to me? Or is it a possibility I could argue I could have got a lift in the morning or a taxi once woke
Thanks

Posted by: NewJudge Thu, 21 Dec 2017 - 09:01
Post #1341397

QUOTE (Localdriver1 @ Thu, 21 Dec 2017 - 08:27) *
Or is it a possibility I could argue I could have got a lift in the morning or a taxi once woke


There is a defence to the charge which says this:

It is a defence for a person charged with an offence under subsection (1)(b) above [which is being “in charge” whilst over the limit] to prove that at the time he is alleged to have committed 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.

I think you will have difficulty with this. You will have to prove that you had no intention of driving until your alcohol level reduced to below the limit. You will have to give evidence and even if you do not mention it in your own account (which will be tricky enough), under cross-examination you will almost certainly be asked how you got to the lay-by. It would not be unreasonable for the court to think that if you drove once to get there you may not be too reluctant to drive again as soon as you woke up. As well as this you will have to prove to the court that you knew how long it would be before you returned to a legal alcohol level. I think you will have to take it on the chin.

As suggested, a solicitor is unlikely to influence matters very much. A letter of support from your employer may help persuade the court this was indeed out of character and impose 10 points instead of a ban.

Posted by: Localdriver1 Thu, 21 Dec 2017 - 09:42
Post #1341400

Thanks for that above
So how long does this sort of offence stay on my licence, if I loose it for drunk in charge, and how long if I get the 10 points

Thanks

Posted by: The Rookie Thu, 21 Dec 2017 - 10:15
Post #1341403

You don't lose your licence, you are disqualified from driving, as the recommended penalty is 10 points if you are disqualified it will be for a relatively short period.

If you get 10 points then they count for totting for 3 years, most points can be removed after 4 years but I believe that like drink driving, drunk in charge stays for ten (as a record only) but I'm not 100% sure on that.

Posted by: Steve_999 Thu, 21 Dec 2017 - 10:37
Post #1341408

DR40 In charge of a vehicle while alcohol level above limit stay on a driving record for 4 years from the date of the offence or 4 years from date of conviction where a disqualification is imposed.

https://www.gov.uk/penalty-points-endorsements/endorsement-codes-and-penalty-points

Posted by: Logician Thu, 21 Dec 2017 - 11:16
Post #1341420

QUOTE (Localdriver1 @ Thu, 21 Dec 2017 - 08:27) *
Many thanks for the detailed reply I don’t mind spending the money to be honest, I’m not rich but I’m happy to pay to have some support in court, the whole situation is quite daunting to me As for 10 points I would happily take along with the fine I’m experience then would it be fair to admit guilt and take it on the chin in court, that sounds like the sensible option to me? Or is it a possibility I could argue I could have got a lift in the morning or a taxi once woke Thanks


A general practice solicitor is unlikely to have much or perhaps any experience of the criminal courts, so if you want useful support in court you need a criminal solicitor, or for advice about your case a road traffic specialist. As you can see though, those with experience of these matters are agreed that there is no defence apparent from what you have told us, and a guilty plea appears to be your best option.


Posted by: fedup2 Thu, 21 Dec 2017 - 15:09
Post #1341515

If you need support in court buy a bra,far more useful than many solicitors as you have been told.
If your going guilty which is probably best,then all you have to do is answer that when asked.
After that despite all the talkers above,it's probably best to keep your mouth shut.there is no explaining to do as you admitted it in guilty plea.
If you start running away with your mouth then it could make things worse.just tell them it was a moment of poor judgement anyone happen again that's it simple.

Posted by: Ocelot Thu, 21 Dec 2017 - 19:28
Post #1341598

Do they still have free duty solicitors in magistrates Courts nowadays?

Posted by: Colin_S Thu, 21 Dec 2017 - 20:29
Post #1341615

QUOTE (Ocelot @ Thu, 21 Dec 2017 - 19:28) *
Do they still have free duty solicitors in magistrates Courts nowadays?


QUOTE
The court duty solicitor. The duty solicitor can only deal with imprisonable offences such as drink driving, failing to stop after an accident and dangerous driving. They will not take on most driving offences such as speeding, careless driving and failing to provide driver details.


From https://thedrivingsolicitor.co.uk/2015/07/29/5-money-saving-tips-if-you-are-prosecuted-for-a-driving-offence-in-the-magistrates-court/ web page.

Not sure if that's a yes or a no in this particular case....

Posted by: southpaw82 Thu, 21 Dec 2017 - 20:33
Post #1341617

You’re charged with an imprisonable offence (3 months max) so the answer seems to be "yes".

Posted by: RDA Thu, 21 Dec 2017 - 20:54
Post #1341625

Excess Alcohol (In Charge) does not attract imprisonment as a penalty.

If it did, you would certainly be able to call on the services of the duty solicitor.

Posted by: Jlc Thu, 21 Dec 2017 - 20:58
Post #1341627

QUOTE (RDA @ Thu, 21 Dec 2017 - 20:54) *
Excess Alcohol (In Charge) does not attract imprisonment as a penalty.

6 weeks custodial seems to be listed for higher offences. (But doesn't seem to apply here)

Drive/attempt to drive has a max 26 weeks custodial sentence for higher order offences.

Posted by: southpaw82 Thu, 21 Dec 2017 - 21:42
Post #1341643

QUOTE (RDA @ Thu, 21 Dec 2017 - 20:54) *
Excess Alcohol (In Charge) does not attract imprisonment as a penalty.

If it did, you would certainly be able to call on the services of the duty solicitor.

Schedule 2 of the Road Traffic Offenders Act 1988 says otherwise.

Posted by: NewJudge Thu, 21 Dec 2017 - 21:47
Post #1341644

QUOTE (RDA @ Thu, 21 Dec 2017 - 20:54) *
Excess Alcohol (In Charge) does not attract imprisonment as a penalty.


Yes it does. As already explained the maximum penalty is three months custody.

The duty solicitor is only available to see and represent defendants who face an imprisonable offence (measured by the maximum penalty, not the guideline penalty). But they can do so on the defendant's first appearance only. After that they have to apply for Legal Aid and if that is not granted they have to make their own arrangements.

Posted by: Localdriver1 Fri, 22 Dec 2017 - 06:29
Post #1341697

Spoke with the solicitor yesterday who has handled drink driving type stuff before. She agrees that it’s highly unlikely that a drink driving charge will be chased in court. She explained bits and pieces about how it will go.

I literally do not care about wasting money on this lads so comments like buy a bra for support are not needed. If all she does is tells me what door to go through that’s her being useful, I’ve literally zero experience of any of this and at times I think more experienced people, on both sides of the law can forget how intimidating or daunting the process can feel.

She can’t offer any prediction on a outcome as the local court does not have a lay magistrate, it changes often


Posted by: southpaw82 Fri, 22 Dec 2017 - 12:48
Post #1341749

If you feel that being represented is a good use of your money then do so.

Posted by: Localdriver1 Fri, 22 Dec 2017 - 13:15
Post #1341764

Yep
I think it’s easier for me

Posted by: Logician Fri, 22 Dec 2017 - 19:14
Post #1341836

You may find it helpful to go to a court beforehand to get some idea of how it goes. Every court has a public gallery where you are entitles to sit, just tell one of the ushers you are there to observe, particularly if there is a court with a traffic list, but any court will help give you an idea of the layout and procedure.

Posted by: Localdriver1 Mon, 25 Dec 2017 - 14:56
Post #1342166

QUOTE (Logician @ Fri, 22 Dec 2017 - 19:14) *
You may find it helpful to go to a court beforehand to get some idea of how it goes. Every court has a public gallery where you are entitles to sit, just tell one of the ushers you are there to observe, particularly if there is a court with a traffic list, but any court will help give you an idea of the layout and procedure.



Not a bad idea, however with work and time off in short supply I’m hoping my solicitor will keep me right.

Just a waiting game now, I’m wondering is there anyone on here could possibly advise on my outcome ?
Happy Christmas all.

Posted by: Localdriver1 Tue, 26 Dec 2017 - 01:00
Post #1342197

Also, if I get a disqualify I get my licence back with no points is that correct ? Where as the other option I have 10 points hanging over me and have to be extra careful for 4 years

Posted by: peterguk Tue, 26 Dec 2017 - 01:03
Post #1342198

Points remain active for totting purposes for 3 years.

Posted by: Localdriver1 Tue, 26 Dec 2017 - 01:09
Post #1342199

QUOTE (peterguk @ Tue, 26 Dec 2017 - 01:03) *
Points remain active for totting purposes for 3 years.


So does that mean I get points plus disqualification possibly ? That the points are on the licence when I get it back ? Or would disqualification be the result with no points, sorry I’m not explaining myself great

Posted by: thisisntme Tue, 26 Dec 2017 - 02:16
Post #1342200

QUOTE (Localdriver1 @ Tue, 26 Dec 2017 - 02:09) *
QUOTE (peterguk @ Tue, 26 Dec 2017 - 01:03) *
Points remain active for totting purposes for 3 years.


So does that mean I get points plus disqualification possibly ? That the points are on the licence when I get it back ? Or would disqualification be the result with no points, sorry I’m not explaining myself great


You can only get points or disqualification not both, though the effect is the same if you don't have a clean licence as if you have 3 points for an SP30, the 10 points would make you a totter.

Others may advise differently, but as bad as this is already, if you have a clean licence, you will be better off with the points.

Posted by: Localdriver1 Tue, 26 Dec 2017 - 11:15
Post #1342218

Ye I know I would like to keep my licence and just try be extra careful for the next lot of years, I can understand why some would take a disqualification though to get it over with and start fresh

Posted by: roythebus Tue, 26 Dec 2017 - 23:30
Post #1342339

As you're likely to get disqualified, don't drive to court, you can't legally drive home.

Posted by: andy_foster Tue, 26 Dec 2017 - 23:43
Post #1342340

QUOTE (Localdriver1 @ Tue, 26 Dec 2017 - 01:00) *
Also, if I get a disqualify I get my licence back with no points is that correct ? Where as the other option I have 10 points hanging over me and have to be extra careful for 4 years


Making a false statement and asking if it is correct does not make it so, nor does it make it a question.

For the purposes of totting up, any points for offences committed within 3 years of the current offence are taken into consideration. The only exception to this is that points that have already resulted in a totting up ban are no longer counted.

In other words, it is only a totting up ban (or the passage of time) that removes your previous points. A ban for an offence (as opposed to a totting up ban) does not remove existing points.

Posted by: Localdriver1 Wed, 27 Dec 2017 - 22:11
Post #1342486

QUOTE (roythebus @ Tue, 26 Dec 2017 - 23:30) *
As you're likely to get disqualified, don't drive to court, you can't legally drive home.


Yes I have transport sorted to court. I do believe I will be extremely lucky to get just 10 points

Posted by: Localdriver1 Fri, 12 Jan 2018 - 20:41
Post #1346606

So a update.

Court was last week. All went well
My barrister was absolutely not a waste of money,
The reference of character was a great help
I presented myself well suited and booted

All of the above I believe helped me get 10 points and 350 quid fine. So I got to keep driving, just keep the nose clean.

Posted by: Logician Fri, 12 Jan 2018 - 20:54
Post #1346612

Good, I am pleased to hear of that result and thanks for coming back to tell us.

Posted by: Localdriver1 Fri, 12 Jan 2018 - 20:59
Post #1346613

I’m happy, very happy
And more so, lesson learnt. For a true one off incident I believe the judge did see it as that.

Posted by: JP1978 Fri, 12 Jan 2018 - 21:32
Post #1346621

QUOTE (Localdriver1 @ Fri, 12 Jan 2018 - 20:41) *
So a update.

Court was last week. All went well
My barrister was absolutely not a waste of money,
The reference of character was a great help
I presented myself well suited and booted

All of the above I believe helped me get 10 points and 350 quid fine. So I got to keep driving, just keep the nose clean.


Please that you had the result you wanted but your solicitor probably didnt help to get that much as you think.

The fact that they were there, put you more at ease, calmed you down, changed your attitude and demeanor.

If you were standing there yourself, shaking, stuttering, struggling for words, the court would see what a huge mistake you have made. What you have done is wrong but turning up suited and booted, contrite and nervous will make you look far better than the hundreds of people that have been in that court the previous days and will be a refreshing change to them.

As I say, pleased you got a decent outcome but for others reading this, as the most of the posts said before, the representation was not really needed.

Posted by: thisisntme Sat, 13 Jan 2018 - 01:42
Post #1346664

Others reading this should note that past performance is not a guide to the future and that in court as well as elsewhere, one size does not fit all. So one shouldn't speak in absolutes. This isn't "Sliding Doors" so we cannot know how it would have turned out.

Posted by: Mayhem007 Sun, 14 Jan 2018 - 10:59
Post #1346923

From personal experience I believe the the solicitor or barrister did help to mitigate the sentence. Magistrates know all too well the costs of such professionals and in essence it is a penalty in itself.

So well done for the actions you took. Take heart I believe you did the right thing...eventually.

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