Driving whilst unfit through Drink or Drugs

It is not uncommon for charges of driving whilst unfit or being in-charge of a vehicle whilst unfit (‘unfit offences’) to be brought against motorists. These offences have many similarities to charges of drink-driving and drug-driving and as such are regularly confused with these separate and distinct offences to ‘Driving/Attempting to drive or being in charge of a motor vehicle whilst unfit’.

It can be extremely important to know when and how you may be charged with ‘unfit offences’ and importantly what the prosecution must prove in order for you to be found guilty. This article should help to clarify all you need to know about and detail the options available to you.

Charged with an Drink Driving Offence?

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How Can I Be Charged With an Unfit to Drive Offence?

Most cases of driving whilst unfit begin when an officer stops you on a road or in a public place and suspects that you may be under the influence of either drugs or alcohol. As expected, the stop will usually arise out of some moving traffic violation or a ‘tip’ to the police provided by a member of the public.

After you have been stopped it is common for the police to arrest you and take you back to a police station for evidential specimens of breath, blood or urine to be taken. This can sometimes be proceeded by a roadside test but this is not a requirement.

After you have been processed at the station the police will often release you pending an investigation or having charged you with the offence already.

What Do The Prosecution Need To Prove to show I was Unfit to Drive?

So, you have been arrested and charged with an offence of driving whilst unfit through drink or drugs, but what do the prosecution actually need to prove?

The elements of this offence are as follows:

1. Driving or attempting to drive a motor vehicle

• It is a requirement for the prosecution to prove that you were driving or attempting to drive a motor vehicle. Whether you are ‘driving’ the motor vehicle is a question of fact dependant on the control you have over the direction and movement of the vehicle.
• In reality, if you have been stopped by an officer at the roadside there will be little difficulty in the prosecution proving that you were driving the vehicle.

2. On a road or public place

• The driving must also occur on a road or public place, in other words you are not committing the offence if you are on private land.
• It is important to note that car parks, forecourts and other locations that the general public have access to are likely to fall under the heading of ‘public place’.

3. Whilst unfit

• Usually, the most difficult aspect of this offence to prove is that you were unfit to drive.
• In order for this to be proven it is necessary for the prosecution to show that “your ability to drive properly is for the time being impaired” as per Section 4(5) of the Road Traffic Act 1988.
• There are a number of ways in which the Prosecution may look to prove impairment and these will be considered in more detail later in the article.

4. Through drink or drugs

• Finally, the prosecution must not only prove that you were unfit but that this was as a result of drink or drugs in your system.
• It is for this reason that evidential specimens of breath, blood or urine are almost always taken in cases of this nature.

Charged with an Drink Driving Offence?

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How Does The Offence Change If I Am ‘In Charge’ Of The Vehicle?

‘Unfit offences’ are contained within Section 4 of the Road Traffic Act 1988. Section 4(1) creates the offence of driving or attempting to drive whilst unfit through drink or drugs. Similarly, Section 4(2) creates the offence of being in charge of a motor vehicle whilst unfit to drive.

The only difference is that under Section 4(2) the prosecution only needs to prove that you were ‘in charge’ of the vehicle and NOT that you were driving. This is yet another question of fact and the following circumstances will often be taken into account when deciding if a person is in charge of the vehicle:

• Whether and where he was in the vehicle or how far he was from it;
• What he was doing at the relevant time;
• Whether he was in possession of a key that fitted the ignition;
• Whether there was evidence of an intention to take or assert control of the car by driving or otherwise; and
• Whether any person was in, at or near the vehicle and, if so, the like particulars in respect of that person.

It is important to note that the sentencing guidance varies depending on whether you are convicted under Section 4(1) or 4(2). The sentence ranges will be discussed in more detail throughout this article.

How Will The Police Test If I Am Unfit?

There are many ways that the prosecution may look to prove you were unfit, regularly relying on the circumstances of the initial police stop.

In cases where there is evidence of erratic driving or an accident, this may be used to support an allegation that you were unfit to drive. Further to this, your manner at the time of the alleged offence will also be of importance. Defendants who are unable to stand, appear to be falling asleep or act dazed and confused may be seen as unfit.

Some cases may be brought based upon your manner of driving or indeed your general demeanour, however, it is expected that the police will conduct a preliminary test to determine impairment.

The preliminary tests can include, but are not limited to:

1. The Walk and Turn Test

For this test, you must walk in a straight line, heel–to– toe, for a total of 9 steps away from the officer. Then, you are to turn around and repeat the test, but this time walking in the direction of the officer.

2. The Balance and Judgement test, also known as The Modified Romberg Test

The Modified Romberg Test is carried out to measure a person’s sense of balance. The test focuses specifically on the dorsal column of the spinal cord. During this test you must stand still, tilt your head back and count to thirty seconds. Alongside testing your balance, this test also checks your judgement of time, both of which can be impaired by drink/drugs.

3. The One Leg Stand Test

This test is fairly self-explanatory; you must stand on one leg and count out loud. Officers use this test to establish your sense of balance, as intoxicated individuals often sway unknowingly or loose balance.

4. The Pupil Measurement Test

This test measures not only the size of an individual’s pupils, but also their condition and the pupil’s reaction to light.  This test is carried out as most illegal substances cause pupils to shrink or enlarge, once the substance enters the individual’s blood stream. These changes are checked against a card, by an officer, to indicate abnormalities.

5. The Finger To Nose Test

This test focuses on establishing whether an individual’s co-ordination is affected by drugs or alcohol. During this test, the individual will be asked to tilt their head back with their eyes closed and then touch their finger to their nose, using the hand specified by the officer.

Charged with an Drink Driving Offence?

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You may also be interested in our Dangerous Driving legal  page

How Does This Differ From Drink Or Drug Driving?

Whilst there are a number of similarities between this offence and the offences of drink or drug driving there are two main differences.

Firstly, the police must obtain an evidential reading which shows you are over a specified legal limit for either alcohol or drugs. For unfit offences there is no such requirement, you may be below the legal limit and still be charged.

Secondly, for drink or drug driving offences there is no need for the prosecution to prove that you were impaired, being over the legal limit is enough. In direct contrast to this, you can only be convicted of an unfit offence if it can be proven that you were impaired owing to the alcohol or drugs.

This allows people to be charged in cases where there is no legal limit for the drug identified (i.e. certain prescription medication) or even where you provide an alcohol reading which is below the legal limit.

Charged with an Drink Driving Offence?

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Can I Defend Against This Charge?

You are able to defend against this charge in many of the ways that drink or drug driving charges can be defended. Most commonly:

• You may dispute having driven the vehicle (or been in charge of it);
• You may wish to argue that you were on private land; or
• You may dispute that there were any drugs or alcohol in your system at all

As previously mentioned, it is also extremely important that the prosecution prove you were impaired as a result of drink or drugs. In this regard it is not enough to simply prove that you failed a preliminary test (impairment test). There can be many reasons for failing a preliminary test and these can be presented to the court in defence of your case. Examples of potential reasons include:

• Having a medical condition which impacts your ability to walk or balance.
• If you were involved in a collision and sustained an injury which effects your mobility.
• If you suffer with anxiety or another mental health condition which can impact your cognitive abilities.
• Being impacted by the environment or weather (raining, windy, unsteady ground etc).

Similarly, should the prosecution be looking to rely on your standard of driving as evidence of impairment there may be valid reasons to explain your driving to the court:

• If you swerved to avoid an animal or obstruction in the road.
• If the collision occurred as a result of another driver.
• If there has been a mechanical fault with your vehicle.
• You were tired or had a lapse in concentration.

It is important that you obtain legal advice when charged with an unfit offence as proving the necessary elements of the offence is not always clear cut and your case could be defended.

Charged with an Drink Driving Offence?

Contact Caddick Davies today for expert advice

What Is The Sentence for being Unfit to Drive?

As above, the sentencing varies depending on whether you were driving (or attempting to drive) or were simply in charge of the vehicle.

Driving or Attempting to Drive

• You will receive a disqualification from 12-36 months for first disqualifications and 36-60 months for second disqualifications (if you have been disqualified in the last 10 years for a relevant offence).
• Alongside the driving disqualification you will receive either a fine, community order or custodial sentence.

In Charge

• The starting point is 10 penalty points but for more serious cases the court can consider imposing a driving disqualification.
• Once again, you would receive either a fine, community order or custodial sentence alongside the penalty points or driving ban.

When considering sentence the court will also consider the culpability and harm involved in your case. Should you have higher culpability or higher harm then the court would usually increase the sentence. Higher culpability is established if you are driving for hire or reward, you are in charge of a goods/public service vehicle or there is a high likelihood of driving (for in charge cases). Higher harm is determined solely by any evidence of a ‘high level of impairment’.

Alongside the above considerations the court will also take into account any additional mitigating or aggravating factors.

Charged with an Drink Driving Offence?

Contact Caddick Davies today for expert advice

Conclusion

Driving/Attempting to drive or being in charge of a motor vehicle whilst unfit is frequently used as fall-back charges when the police fail to obtain an evidential reading above a legal limit (for drink or drugs). Naturally, these charges can be harder for the prosecution to prove and can fail on solely on the basis that the police did not carry out sufficient impairment testing.

The specific circumstances of your case will need to be considered in detail before determining whether you have a defence to this charge. It is therefore advisable that you contact a motoring specialist to obtain further advice.

If you are looking for expert legal advice relating to any of the above issues then please contact our office on 0151 944 4967 for a free consultation.

You may also be interested in our article Death by Dangerous Driving.

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Neil Davies

Motoring Lawyer at Caddick Davies Solicitors

Caddick Davies is recognised as one of England and Wales’ leading motoring law firms, offering specialist Speeding Solicitors, Drink Driving Solicitors & Dangerous Driving Solicitors.We provide advice and representation on all motoring offences including speeding, the avoidance of disqualification on penalty points or “totting up” (exceptional hardship), driving without due care and attention (careless driving), dangerous driving, drink driving, as well as a range of services related to medical revocation of a driving licence.

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