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LAWTON ON THE LAW

30th May 1991, Page 40
30th May 1991
Page 40
Page 40, 30th May 1991 — LAWTON ON THE LAW
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Which of the following most accurately describes the problem?

• Drivers face being prosecuted for being in charge of a vehicle while under the influence of alcohol every time they go to the pub before spending a night in their cab.

To put it in the words of the Road Transport Act 1988 section 5(1)(b), the alleged offence is being "in charge of a motor vehicle...on a road called...or...being in a public place after consuming so much alcohol that the proportion of it in his breath (or blood or urine) exceeded the prescribed limit".

There cannot be any argument about whether or not the vehicle is a "motor vehicle" but there is some doubt about whether a lorry park can be described as a public place.

And there is certainly a question mark over whether a driver in a sleeper cab is "in charge" of a vehicle.

A "public place" is one to which the public has access either directly, such as on a public road or a public car park, or which the public can get to by implied invitation. In other words, a layby, whether or not it is part of the road, is clearly a place to which the public have access, whereas a convenient piece of field or a private park is not. The car park of a pub is a "public place" during licencing hours, including drinking up time, but may not be outside those hours.

The problem of deciding whether or not a person is "in charge" of a vehicle is not so easy to determine. That's probably why the law doesn't give a definition, leaving the courts to decide.

The courts feel that someone must be in charge of a motor vehicle at all times. In the case of the Director of Public Prosecutions vs Webb in 1988 the defendant was found to be in charge even when there was no likelihood of his driving.

SLEEPER CAB

The concept of the sleeper cab is comparatively new and is not common knowledge to the average member of the public. The reality is that the driver, however soundly he sleeps in his bunk, has all the attributes of the person "in charge". He has the keys; he parked the vehicle, and, in almost every case he will be driving the vehicle in the morning. A motorist who is asleep in his car with the keys out of the ignition after drinking too much would almost certainly be convicted — so why not an HGV driver in his bunk?

The driver's answer must be that when he is in his bunk he should be seen in the same light as if he were at home in his bed. A member of the public can go out for a meal and have a drink, providing someone else is driving, return home and still drive the next morning. If he has drunk a lot the night before he might still be over the limit the next morning, but at least he does not run the risk of being woken in the middle of the night by a police officer demanding that he take a breath test. The driver's view is supported by the fact that the drivers hours regulations treat the sleeper cab as "home" for the purpose of his rest Obviously no-one should drink and drive, and the thought that a driver might drink a great deal, retire to his sleeper cab, wake up early and set off for work is a frightening one.

The court's decision should reflect the facts.

The driver should be able to show that when he was due to start driving the alcohol level in his body was likely to be nil — or at least within the legal level.

But surely the driver in his sleeper cab should have the same rights as the householder who drives to work the morning after the night before.

El by Jonathan Lawton

Aaron and Partners, Chester


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