Section 5

Section 5 of the Road Traffic Act 1988 creates the offence of a person attempting drive or being in charge of a motor vehicle on a road or public place after consuming so much alcohol that the proportion of it in their breath, blood or urine exeeds the prescribed limit

5(1) Driving or being in charge of a vehicle while over the prescribed limit

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.

5(2) Defence for being in charge of a vehicle while over the prescribed limit

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.

5(3) Determining likelihood of driving

The court may, in determining whether there was such a likelihood as is mentioned in subsection (2) above, disregard any injury to him and any damage to the vehicle.

Notes

Title
Description

Defence

In the case of Sheldrake v DPP (2004) the Court stated that in the light of the Human Rights Act 1998 this defence must be given the following meaning:

'It is a defence for a person charged with this offence to demonstrate from the evidence an arguable case that at the time he was alleged to have committed the offence, the circumstances were such that there was no likelihood of his driving the vehicle while the proportion of alcohol in his breath blood or urine remained likely to exceed the prescribed limit.

It is not sufficient for the accused to show that, at the time of his arrest, he was so hopelessly drunk as to be incapable of driving a motor vehicle; he must show, for example, that he had handed the keys of the vehicle to someone else or that, realising that he was adversely affected by drink, he had taken a room for the night.'

The section 5(2) defence succeeded where the car was wheel-clamped, as it was easily established that there was no likelihood of it being driven. This was despite the fact that the owner had been observed attempting to remove the clamp with a hammer, actions which were found not to constitute damage to the vehicle. Officers should ensure that sufficient evidence is collected to ensure this defence can be countered if raised.

Evidence regarding consumption of alcohol

Evidence which is material to the question of what was the proportion of alcohol at the moment of driving is admissible, and section 15 of the the Road Traffic Offenders Act 1988 (use of specimens in proceedings for offences under section 4 or 5 Road Traffic Act 1988), does not preclude evidence other than that revealed by a specimen. Accordingly, evidence may be adduced to show, by means of 'back-calculation'; calculating the amount of alcohol eliminated in the period between driving and providing the specimen, that the proportion of alcohol in the defendant's breath or blood was above the prescribed limit when he was driving.

Meaning of consumption

With regard to alcohol, primarily means 'consumption by mouth'. However, the dictionary meaning is wide enough to include other methods of ingestion of alcohol into the breath, blood or urine.

Section 5(1)(a)

Summary: 6 months imprisonment and/or a fine

Section 5(1)(b)

Maximum 3 months imprisonment and/or a fine not exceeding £2,500

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