Road Traffic Act 1988, section 5

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

Part I Principal Road Safety Provisions

(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.

(3)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.

Definitions used in section 5 4

drive

“driver”, where a separate person acts as a steersman of a motor vehicle, includes (except for the purposes of section 1 of this Act ) that person as well as any other person engaged in the driving of the vehicle, and “drive” is to be interpreted accordingly,

Defined in s.192(1) · see it in the full Act
motor vehicle

“motor vehicle” means, subject to section 20 of the Chronically Sick and Disabled Persons Act 1970 (which makes special provision about invalid carriages, within the meaning of that Act), a mechanically propelled vehicle intended or adapted for use on roads, and

Defined in s.185(1) · see it in the full Act
road

“road”

Defined in s.192(1) · see it in the full Act
prescribed

“prescribed” (except in section 5A) means prescribed by regulations made by the Secretary of State,

Defined in s.192(1) · see it in the full Act

Cases considering section 5 89

Attorney General's Reference No 4 of 2002 (On Appeal from the Court of Appeal (Criminal Division)) Sheldrake (Respondent) v. Director of Public Prosecutions (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)

[2004] UKHL 43 · 14 October 2004Interprets

The offence is established by proof that the defendant was in charge of a motor vehicle in a road or public place while over the prescribed limit. Likelihood of driving is not an ingredient (see paras [32]; [40]). The provision creates a defence requiring the accused to prove on the balance of probabilities that there was no likelihood of driving while over the limit. That legal burden is proportionate and compatible with article 6(2) (see paras [40]–[44]).

Phipps, R v

[2005] EWCA Crim 33 · 14 January 2005

The court treated the excess-alcohol charge under this provision as arising from the same driving incident as the later dangerous-driving charge. Its ingredients did not prevent a finding of substantial factual overlap. (see paras [27]; [29]-[31])

Mariela Anastassova, R (on the application of) v Northampton Magistrates Court

[2023] EWHC 1586 (Admin) · 27 June 2023Interprets

Applies the statutory drink-driving offence as the legal context for determining whether the location was a road or other public place. The conviction depended on that statutory classification (see para [1]). Interprets the requirement that the driving occurred on a road or other public place. The issue was whether the evidence established that Vancouver Close was within that statutory category (see paras [1], [5]-[6]).

69 more judgments, and what each says about section 5, are in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Modifications

  1. C4Ss. 4-11 applied (with modifications) (5.8.2011) by The Road Traffic (Drink and Drugs) (Cambridgeshire Guided Busway) Regulations 2011 (S.I. 2011/1652), regs. 1, 3