Im being charged with wrong offence and in court next week

[reziak]

Hi people

 

I've lurked on this site for a while but this is my first post as I need advice, can't afford a solicitor and have had my request for legal aid refused.

 

Sorry for the long post I hope someone can read it all the way to the bottom!

 

I am being charged for drink driving, before you all jump on me to say it's your on fault and you get what you deserve - I was not driving, nor did I have any intention to

 

Here is a breif outline of what happened...I went straight to the pub from work with the intention of just having one pint then go home. Its my regular and I have lots of friends that go there and I got tempted to stay out for the day with them and leave the van overnight to fetch in the morning, I had quite a few drinks in the local then got a taxi into town and had a nice night out.

 

I got home about one o clock and about an hour later the girlfriend got home too in a very drunken state, she can't handle her alcohol and started an arguement with me and would not shut up so I just got up and walked out.

 

I did not know where I was going to go, It would not have gone down well to knock people up in the early hours of the morning for a bed and it was a cold night and I did not want to be wandering the streets in that temperature so I headed for the van to get my head down in the back of it.

 

I cleared out all one side of the back of the van so I could lie down, removed my shoes and used my jacket as a pillow. I still could not get comfy and did not sleep well which was mainly due to the cold.

 

Here is where I made a mistake, i decided to get in the front and switch the heating on Silly me I know. I tried to get to sleep and more importantly did not plan to drive any where until I had to go to work the next day. I set my alarm for work and tried to get to sleep.

 

A while later a policeman knocked on my window, I wound down the window and he asked me to step out of the vehicle, he asked if I'd been drinking, i admitted yes as I did not think I was doing anything wrong and that I was trying to sleep (I did not realise trying to keep warm and sleep is an offence)

 

At the station I was breathalysed and blew 70, I still did not realise I was in the wrong and did not know until I spoke to the duty solicitor who advised me that I could be charged under being in charge of a vehicle whilst under the influence.

 

I was then sent to the cell for the evening to sobre up for interview in the morning, at the interview the officer told me that his PC had seen me driving abnd pullover to the side of the road which is bull s##t! I told him exactly what happened that day and thought he would be charging me for being in charge of a vehicle whilst under the influence but on being discharged from the station I got told I was to appear in court for drink driving.

 

WTF is going on here, my opinion is that they are assuming I was driving or about to drive and were trying to get a confession out of me.

 

I need help desperatley please

 

How do I defend this? A court is more likely to beleive the officers story, right?

 

Not being granted legal aid means I have tro prepare a defense myself and I would not know how to.

 

I understand to be charged with drink driving they have to prove that I was both..

 

1 under the influence - I have never denied I was

2 Driving or about to drive - NO I WAS NOT!

 

Part of my defense is to show I was not driving I left my shoes off in the back off my van, I can prove this as I was issued black plymsols by the station to get home in and I have also requested the cctv footage from the custody suite to show me walking in with no shoes on.

 

I will also be using the cctv footage to show what time I was next planning on driving - 9.45am the next morning I was going to drive straight to work for 10 o clock and not go home as I had fell out with the girlfriend about her drunken antics the night before and did not want to see her, my alarm was going off on my phone which was kept behind the counter by the custody officers and I offered to switch it off.

 

I really need help here I am set to lose My Home, Business and probably my sanity if I can't show the court what happened.

 

My credit file is as bad as it gets, should I break myself financially and get a loan from some dodgy company who charge ridiculous APR to try and get a solicitor or do you think I can get enough free advice to do it myself?

 

They are charging me with the wrong offence and I would probably plead guilty if I was on trial for being in charge of a vehicle as I can not afford to defend myself. (even though is trying to keep warm on a cold night an offence?)

 

Thankyou for reading and please don't pre-judge me, the police can and do get things wrong. Or in my case they are just pushing for a confession out of me

 

Sorry for the very long post

[wheelergeezer]

Two issues here.

 

1. You were not driving and pulled over.

2. You were in charge of a motor vehicle whilst under the influence of alcohol.

 

You can possibly get statements from the taxi company that you did indeed call a taxi and did indeed get taken home and did indeed have that row, maybe you were seen on someones CCTV going back to the van.

 

But the bottom line is that although you had every good intention and had no plans at all to drive, the heater will only work with the engine running or at least (if the engine has now been switched off) the keys in the ignition. The fact that you are in the front seat with the keys in the ignition makes you, as far as the law is concderned, in charge of the motor vehicle.

 

I trust someone better armed will adjust any points here, but I believe that is where you stand.

 

However, it comes back to this statement by the constable. If he is prepared to swear on oath that you were seen driving down the road and you can in fact prove that you were not, that makes him a liar and thus his evidence would be thrown out. If he is the only poilceman who attended then the police have no case.

 

Very complicated one this. I would certainly be contacting a solicitor for this one. My gut feeling is that you will be found guilty and banned. I hope not, just my gut feeling.

 

Good luck.

 

Have you checked if the Pub has CCTV? That would be evidence that you didn't drive if the van is on it thwe whole time.

[Yellow160]

the same happened to my mate a few years ago but this was outside his house.. Couldnt find his house key so decided to crash the night in the car, Placed the keys in the ignition so that he could put the heaters on, One of his neighbours saw him and called the police... Not sure what he was charged with but he was given 9 points and a hefty fine.

[reziak]

Thanks for your reply.

 

Yes the key was in the ignition, the engine was not running but the electrics were. I have admitted this to the police and I know that the heater does not work whilst the engine is off but when you have been drinking your mind works in different ways and at the time I could not work it out! Yes I am in charge of the vehicle but this is a totally different offence to drunk driving that they are charging me for. I have never once denied that I was drinking and I am also prepared to plead guilty to the lesser offence of being in charge

 

There were two officers in the vehicle, one male one female but it is only the male one that says he has seen me driving the female one has only said her colleague supposedly saw me driving.

 

There is no cctv where the car is parked, my girlfriend will give a statement and I will look into seeing if the taxi company still holds the records from that night.

 

Am I able and entitled to get the female officers statement from the police to see exactly what she has said? At the moment I only have the male officers one and as above he is the only one accusing me of driving.

 

And maybe I will have to get help from the solicitor on this, he told me it will be over £2k to represent me but when my whole life is at stake then it may be £2k that I have to find no matter how much I will struggle

[reziak]

My solicitor also says there is something fishy going on as it is not normal procedure for police to interview a suspected drink driver, usually its "see you in court" and they send you away. Thats why I think they were hoping for a confession as the only evidence they have is one police officers statement as he is the only one saying he saw me.

[wheelergeezer]

Drunk in charge is exactly the same as drink driving. It isn't a lesser charge and both carry a mandatory driving ban.

 

The taxi company WILL have records of every fare they picked up. It is a legal requirement and they need to be kept I believe for 6 years.

 

I cannot for the life of me think why a policeman would say they saw you driving when you were not. However, if they are prepared to swear that in court you are not going to easily pursuade any magistrate that the policeman is lying. I would call the WPC and ask her what she saw, but i wouldn't be at all surprised if she also says you were seen driving.

 

ALL of which is irrelavent. You were in the driving seat with the keys in the ignition. That makes you legally in charge of a motor vehicle whilst under the influence of alcohol.

 

Face facts here. You were drunk and you were in charge of a motor vehicle. Even if a solicitor could have both police officers statements thrown out, there is now your confession in the police station that you were in fact in charge of a motor vehicle whilst drunk.

 

I would say it is 100% certain you will be found guilty and you will be banned. Don't hang too much onto the 'I didn't drive' bit. You were paraletic by the sounds of it and maybe you did try to drive and just don't remember?

 

The bottom line is simple. You are guilty of being in charge of a motor vehicle whilst drunk and thus you will be prescuted and convicted of drink driving and banned.

 

Save the solicitors fee. You won't win.

[patdavies]

Drunk in charge is exactly the same as drink driving. It isn't a lesser charge and both carry a mandatory driving ban.

 

 

No, they don't. See pages 124 and 126 here (sentencing guidelines)

 

For drunk in charge, at the level stated by the OP, the starting point for sentence is fine and 10 points or consider disqualification.

 

For drink driving, there is a mandatory disqualification of at least 12 months.

 

In the OP's position, I would be looking to defeat the PC's statement that he had been seen driving into the car park whilst drunk. The WPC seems unwilling to commit herself to this, which is surprising if she was in the same Police vehicle! I would think that the OP will need to be prepared to plead guilty to the lesser charge.

[Prawns25]

If the op is charged with drink driving and could show, some how, that he wasn’t then, wouldn’t he just be found not guilty and the case dismissed? Would the drunk in charge come into it?

[reziak]

If the op is charged with drink driving and could show, some how, that he wasn’t then, wouldn’t he just be found not guilty and the case dismissed? Would the drunk in charge come into it?

 

That is something else I am not sure about, if I am found to be not guilty of drink driving can they charge me with being drunk in charge which I have admitted to, or is it just a straight guilty or not guilty? Does the prosecution have to drop the drink driving accusation before the trial to drunk in charge of a vehicle for me to be found guilty of that?

 

As said before I am prepared to plead guilty to drunk in charge and take the 10 points.

[reziak]

No, they don't. See pages 124 and 126 here (sentencing guidelines)

 

For drunk in charge, at the level stated by the OP, the starting point for sentence is fine and 10 points or consider disqualification.

 

For drink driving, there is a mandatory disqualification of at least 12 months.

 

In the OP's position, I would be looking to defeat the PC's statement that he had been seen driving into the car park whilst drunk. The WPC seems unwilling to commit herself to this, which is surprising if she was in the same Police vehicle! I would think that the OP will need to be prepared to plead guilty to the lesser charge.

 

 

Thankyou for clearing up the sentencing guidlines.

 

Also the car was not parked in a car park, the pub car park is tiny and is always full, it was parked on the road.

 

I have looked through all the paper work and it does not look like the WPC statement is being used against me, she probably has given one but the CPS are not using it because she is not accusing me of driving - he is, she only said that he saw me.

[patdavies]

Thankyou for clearing up the sentencing guidlines.

 

Also the car was not parked in a car park, the pub car park is tiny and is always full, it was parked on the road.

 

I have looked through all the paper work and it does not look like the WPC statement is being used against me, she probably has given one but the CPS are not using it because she is not accusing me of driving - he is, she only said that he saw me.

 

The disclosure rules mean that you should simply need to ask for a copy all evidence held by the prosecution.

[green_and_mean]

You should call the WPC as a witness as she may be unwilling to lie and may provide evidence in your favour. The trick is to cross examine the PC first and ask questions not covered in his statement such as which side of the vehicle did you get out of or in which street did they first see you etc then ask the WPC she will not have been in Court and will not know the answers so will will just make the whole thing look made up. I had a similar trumped up 'attempted theft of a motor vehicle' dropped many years ago when the WPC eventually admitted they had made it up and the case was thrown out by the magistrates. It was rather comical with both PCs thinking I would plead guilty but I defended myself cross examined them both and made them look like idiots.

[wheelergeezer]

My apologies, I have been reading and Pat is quite correct, drunk in charge does not carry a mandatory driving ban but it is an option.

 

Speaking with the wife who is a magistrate just now. We both agree that your court case could be very interesting. If you are being charged with drink driving, you are innocent and MUST plead so. DO NOt offer them the option of a lesser charge. It is not for you to offer up the possibility of a different charge and the case cannot be changed into that either.

 

So, as advised above, call the WPC (as a witness). As said she may think more of her career than the PC and may not be willing to lie. Unless she was knitting or sleeping in the back, she should also have seen you drive. Well she won't say that because you didn't.

 

You cannot be convicted of the offence of drink driving unless the magistrates are satisfied beyond reasonable doubt that you did indeed drive. if the WPC is unable to confirm or better still prepared to admit that she did not see you driving, either she is very much overdue for her specsavers appointment or more likely, you were not driving.

 

Backed up with the Taxi confirmation and your GF as a witness about the row, you should have a reasonable shot.

 

If it wasn't for the fact that I actually believe you, I would not be supporting you at all. I deplore drink driving but I am convinced that you didn't do it and thus I feel this is very wrong.

 

What bothers me is al the effort you went to to ensure you didn't drive only to be accused of the very thing you went out of your way to avoid.

 

Good luck.

[katedog]

There is no need for the police to interview you for drink driving. In fact to interview you when you have been arrested for drink drive (that shoulld be arrested after providing a + roadside sample (sectn 5 rta) or you were so drunk you fell over and yuo were arrested unfit to drive drink/drugs (sectn 4rta) is a breach of PACE (police and criminal evidence act) if they have seen you drive. They can only detain you to obtain evidence from the intox procedure.

 

There would have to have been some doubt that you were either the driver at the time the car was seen being driven on the road, or you have been arrested for the in charge offence not the driivng when you would need to prove that you hadnt driven and werent likely to drive whilst your levels were above limit.

 

You need to ask for disclosure and see, what you were arrested for and the grounds for detention and post back.

[patdavies]

This may be your undoing

Also the car was not parked in a car park, the pub car park is tiny and is always full, it was parked on the road.

.

 

As it was on the road, they may well be relying on the Driving or attempting to drive a motor vehicle; especially a you have also stated that the keys were in the ignition.

 

It hinges on you convincing the Magistrates that you had no intention of driving - making up a sleeping area in the back of the van and having removed your shoes go towards this. Defeating the PC;s statement that he saw you driving and pulling over also brings into doubt the veracity of the remainder of his statement.

 

Nevertheless, it will be an uphill struggle. Suited and booted and respectful (but firm) in making your points/questioning will help. Don't grandstand - you are not Perry Mason and the Magistrates are not clones of Judge John Deedes.

 

Good luck.

Edited July 8, 2009 by patdavies

[Mossycat]

This may be your undoing .

 

As it was on the road, they may well be relying on the Driving or attempting to drive a motor vehicle; especially a you have also stated that the keys were in the ignition.

 

It hinges on you convincing the Magistrates that you had no intention of driving - making up a sleeping area in the back of the van and having removed your shoes go towards this. Defeating the PC;s statement that he saw you driving and pulling over also brings into doubt the veracity of the remainder of his statement.

 

Nevertheless, it will be an uphill struggle. Suited and booted and respectful (but firm) in making your points/questioning will help. Don't grandstand - you are not Perry Mason and the Magistrates are not clones of Judge John Deedes.

 

Good luck.

 

Pat I seem to remember something about pub carks been counted as public highway for purposes of drink drive offences, is that true or is it an urban myth. (From memory there was a case where someone was stopped in the pub car park before they emerged onto the public highway but they were disqualified all the same because of this law)

 

Mossy

[katedog]

Pat I seem to remember something about pub carks been counted as public highway for purposes of drink drive offences, is that true or is it an urban myth. (From memory there was a case where someone was stopped in the pub car park before they emerged onto the public highway but they were disqualified all the same because of this law)

 

Mossy

 

Doesnt count in this case as our man was on the road.

 

But you are right in what you are saying, to a point.

 

The Road Traffic Act and Road traffic Offenders Act both define a road (slightly differently) for the purposes of each Act and many pub car parks fall itno that definition, however many dont and each one would/could be argued on its own merit.

[Mossycat]

Doesnt count in this case as our man was on the road.

 

But you are right in what you are saying, to a point.

 

The Road Traffic Act and Road traffic Offenders Act both define a road (slightly differently) for the purposes of each Act and many pub car parks fall itno that definition, however many dont and each one would/could be argued on its own merit.

 

I know it doesn't count in this case, I did read (and understand) that the OP was on the road, it was a question in response to a post about it would have been a lesser offence if he wasn't on the road

 

Mossy

[patdavies]

I know it doesn't count in this case, I did read (and understand) that the OP was on the road, it was a question in response to a post about it would have been a lesser offence if he wasn't on the road

 

Mossy

 

The definition of a road in s.192 RTA 1988 (RTRA doesn't matter here as we are talking about an RTA offence) is:

“road”, in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes,

 

If the OP was in the pub car park and the car park had a barrier, then there is the possibility of the offence not existing, because if he was in a delineated parking bay, this was not a road to which the public has access. - only the access roads within the car park fit the RTA definition.

 

As the OP was on the public highway then this possibility cannot apply.

 

What we have here is a s.5 offence

5 Driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit

 

(1) If a person—

(a) drives or attempts to drive a motor vehicle on a road or other public place, or

(b) 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 he is guilty of an offence.

(2) It is a defence for a person charged with an offence under subsection (1)(b) above 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.

 

The 'other public place' is defeated by the existence of the barrier restricting entry and therefore not having public access.

 

It's a very slim argument however.

[sameagle]

My local, about 120 yards from here, has a car park at the front, and another at the back, each served by a separate road, there's no gates separating them from the roads.

 

There are also public rights of way across each car park, [not separate pavements], to allow people to walk between the two roads, dodging between the cars, and to enter the pub.

 

If this is a road, and it sounds like it complies with the regulations that would define it as such, I wonder how come they have a PPC goon wandering about, giving out £80 "invites" to those who have nipped to the local chip shop, "Londis", or butcher?

 

Sam

[funkyparott]

Wrong I'm afraid.

 

Driving in law is being in control 'of the vehicle's steering and propulsion'. Having the

engine running is driving. There are stated cases. Even if you are sat in the passenger seat.

 

Ref the offence 'quitting' (leaving a parked car with the engine running). There is a case that says if you have a person with a driving license sat on the passenger seat this is a defence.

 

Back to the 'driving' definition, there is even a stated case where a man was pushing his car down a hill, using his hands to reach through to the steering wheel. This was confirmed by the court to be driving.

 

 

Unforuntalnely from what I have read and my understanding, the full offence may be complete.

 

In any case. Even if the engine was not running and you were in the vehicle with keys you are drunk in charge.

 

I hate to say this, but local mag courts appear to be very biased towards Police (in my experience anyway).

 

The law is very tough indeed on offences involving intoxicating liquior and motor vehicles.

 

Two issues here.

1. You were not driving and pulled over.

2. You were in charge of a motor vehicle whilst under the influence of alcohol.

Edited July 9, 2009 by funkyparott

[wheelergeezer]

Wrong I'm afraid.

 

Driving in law is being in control 'of the vehicle's steering and propulsion'. Having the

engine running is driving. There are stated cases.

 

In fact there is even a stated case where a man was pushing his car down a hill, using his hands to reach through to the steering wheel. This was confirmed by the court to be driving.

 

 

Unforuntalnely from what I have read the full offence is complete.

 

Wrong I'm afraid too.

 

Instead of finding fault with correct information, try reading. The engine was NOT running. The OP was in chargre of a vehicle NOT driving. The vehicle was stationary, the engine was not running however the keys were in the ignition and thus as he was sat in the drivers seat he is in charge of the motor vehicle.

[funkyparott]

Wrong I'm afraid too.

 

 

 

Apologies, I misread that.

 

CPS can have the charge ammended at court. I've seen this on a couple of cases.

[wheelergeezer]

Fair enoough.

 

For CPS to change the charge in court would be unacceptable to most magistrates.

 

This case seems to revolve around one PC's lie. He said to the OP taht he saw him driving, which the OP is quite adamant is untrue. Magistrates do comes across police officers who lie and deal with them accordingly. However unless the OP can discredit the officers claim, they will not get anywhere.

 

I believe that if they did indeed get a taxi, and asuming it was a telephone booked mini-cab rather than a hailed London cab, they can prove that they did indeed know better than to drive and got a taxi home.

 

If they can get the GF to make a witness statement that he did go home but they had a ow and he chose to leave that will add great weight to the circumstances.

 

It is not really for the OP to prove he didn't drive, but for the police to prove that he did. As the WPC seems to know the truth, I believe she is a key witness and a good lawyer will be needed to cash in on this.

 

Once the magistrate sees that the police have fabricated the story, they will not be intrested in the other charge of drunk in charge I believe.

 

Let me just make one thing clear here. I deplore drunk drivers or anyone I belive may have been tempted to drive. i genuinely believe the OP hence my passion in this case. Nothing I dislike more than a dishonest PC.

[funkyparott]

Fair enoough.

 

For CPS to change the charge in court would be unacceptable to most magistrates.

 

I suspect you are correct. But as I have said, I've seen it occur on a couple of occasions.

Those cases may have been charges that were going to be commited to the Crown Court. perhaps the rules are different (isn't drink drive and DIC an either way offence?) ITs been a while.

 

The vast majority of Police are honest in my opinion. What I can also tell you is that most police officers hate giving evidence in court.

 

You need to weigh up the cost to you if you lose your license. I know you say you can't get legal aid. I think it might still be worth paying for a solicitor. Having the officers professionaly cross examined may end up in the solicitor tearing up their MG11's for loo paper if he does a good job.

 

Of course you can self represent yourself. How well it goes down depends a lot on the court clerk (if you have a panel of lay magistrates). I witnessed one case where a lad represented himself over a charge of theft from employer (a pretty serious matter if convicted). He was in tears. I could see the bench sided with him and the solicitor sitting next to me in the public bench admitted he could not have defended better ! :o) I have also seen a very grumpy stipendary mag (qualified lawyer basically as apposed to a bench) who was not impressed with a guy self representing.

 

I too deplore drink drivers / drunk in charge. However, I expect the Police to comply with the law and conduct themselves with integrity.

Edited July 9, 2009 by funkyparott