Section 5(1)(b), Road Traffic Act 1988

It is an offence to be “in charge” of a motor vehicle while over the legal alcohol limit.  For a conviction under this section it is not necessary for the prosecution to prove that you were driving or attempting to drive.  Rather, this offence can be committed where the vehicle is stationary and in circumstances where there is no immediate intention to drive.  The offence usually arises when the police find someone sitting or sleeping within a parked vehicle after having consumed alcohol. 

It is also an offence to be in charge of a motor vehicle while under the influence of drugs.  The penalties are similar for both.


The penalties for being drunk in charge of a motor vehicle are slightly different to those of drink driving in that disqualification is not mandatory.  They include:

  • A fine; and 
  • Discretionary disqualification or
  • 10 penalty points in exceptional cases 

Defining Drunk in Charge

The words “in charge” are not legally defined so each case will depend on its own unique set of facts and circumstances.  Generally speaking, however, a person is “in charge” if they have some degree of control over the motor vehicle.  In assessing whether you are in control of the vehicle and if that amounts to being in charge the courts will consider all the circumstances including:

  • Were you inside or outside the motor vehicle?
  • If you were inside the vehicle where were you sitting?
  • What were you doing?
  • Where were the keys to the vehicle?
  • Any other evidence or circumstances which might show an intention to take control or drive the vehicle

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Legal Limits for Alcohol

The offence is committed if a driver is “over the limit”.  In order to obtain a conviction for Drunk in Charge, the prosecution must, therefore, prove that the prescribed limit has been exceeded.  The amount of alcohol can be measured in breath, blood or urine. The prescribed limits in Scotland are as follows:

22 milligrammes of alcohol in 100ml of breath (previously 35mg)
50 milligrammes of alcohol in 100ml of blood (previously 80mg)
67 milligrammes of alcohol in 100ml of urine (previously 107mg)


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Prosecuting Drunk in Charge Cases

To secure a conviction for being Drunk in Charge of a motor vehicle the prosecution must prove that:

  • You were in charge of the vehicle at the relevant time; and
  • You were over the legal limit for alcohol in either breath, blood or urine; and
  • Your vehicle was on a road or public place or a place to which the public have access, such as a car park or camp site.

The prosecution do not have to prove that you had been driving or were attempting to drive.  Nor does the prosecution have to prove that you were going to drive.  

Drunk in Charge Defences

The most common defence to someone charged with being Drunk in Charge is that there was no intention or likelihood of driving whist under the influence of alcohol. Accordingly, it will be necessary to demonstrate that the offender would not have driven the vehicle at any time while the alcohol in their system remained above the legal limit.

The onus is on the defence to prove, on the balance of probabilities, that there was no likelihood of driving while the proportion of alcohol exceeded the prescribed legal limit.  More often than not it will be necessary to obtain expert evidence, in the form of a toxicology report, to show when the level of alcohol would have fallen below the legal limit.

Another potential defence, which is quite common, is that the offence occurred on private property and not on a road or other public place.  Such a defence may be available if someone is sleeping off the effects of alcohol in a car which is parked on a private road or driveway to which the public do not have access.  Generally, a public place is any area to which the public have access without having to overcome physical obstacles such as gates or ignoring notices prohibiting entry.

How we can help

The law relating to drink related driving offences is technical and complex. Our experience with Drunk in Charge cases is that a large proportion can be successfully defended. Our expertise in this area will quickly determine the merits of the case and identify not just the the best option, but the right option for you. We can properly prepare your case, ensure supporting evidence is placed before the court and make forceful and effective representations. Providing the right advice saves time and expense. If you do not have a defence or the prospects of success are low we will tell you so and concentrate on reducing the penalties. We pride ourselves in offering a service that is friendly, honest and reliable. For free advice that is without pressure or obligation simply contact us:

E-Mail Us Today or Tel: 0141 255 1519