Passenger of positively breathalysed driver

[crackernut2]

Can anyone tell me if the passenger of a driver who fails a breathalyser test
can be arrested as an accessory.
If so what penalties can they expect?

[ABerrant]

BTW the Road Traffic Act 1988 (as amended) extends to England & Wales, Scotland, and Northern Ireland.

[New Judge]

I think, AB, that if you were merely sitting as a passenger in a car the driver of which happened to be drunk, it would, in normal circumstances, be a very difficult prosecution indeed with which to succeed to show that you were “aiding and abetting” an offence of driving with excess alcohol. It would have to be shown that:

(a) You were aware that such an offence was being committed (which would mean you would have to be aware of the level of alcohol present in the driver’s system)

(b) You actively assisted in the commission of the offence (which would mean you had to either assist in the driver’s intoxication and you had to be complicit in forcing him or at least encouraging him to drive)

(c) Both of the above would have to have been carried out intentionally.

Similarly, the suggestion by “DrinkDriving.org” that if you fail to identify the driver, and the Police cannot establish his identity, you can be prosecuted for being "in charge" of the vehicle would be equally difficult with which to succeed. There are certainly circumstances where all occupants of a vehicle decamp following an incident and the police have difficulty identifying the driver, then they will often breathalyse all occupants so that the intoxication of all of them is measured until and unless it can be established which of them was driving. But their suggestion that in such circumstances a passenger could be charged with being over the limit whilst “in charge” of the vehicle is far-fetched.

A passenger has no obligation to identify the driver of a vehicle in which he is travelling (indeed he may not even be aware of that information). Further, sitting as a passenger in a vehicle does not suddenly make one “in charge” if the driver has left the scene or cannot be identified.

[SpikeyBush]

It is most definitely the driver's sole responsibility. The passengers may not know what else the driver has consumed and if they are 'well oiled' themselves they will likely be unable to detect the odour of intoxicant from the driver's breath. I know from bitter experience, being given the choice by Cheshire Constabulary to sleep on the back seat of my Brother's Cavalier in sub-zero temperatures and enjoy the soft velour while he is charged, or sleep on the cast-iron bench in the custody suite where it is nice and toasty.

This is going back to the days when it was socially acceptable to have two pints and drive. My brother is of very slight build so two pints put him over the limit. The recommendation now that if you're driving, don't drink at all is very welcome as there are so many variables in the equation. It's not really worth taking the risk.

[ABerrant]

I agree that "aiding and abetting" does indeed need to meet certain criteria for a successful prosecution over and above "mere" presence, although in regard of point (a) I did state "clearly drunk" (however that may be defined).

SpikeyBush - It is grossly incorrect to claim that a criminal offence is "definitely the ... sole responsibility" of the primary offender where another has aided, abetted, counselled, procured, caused, permitted or incited the commission of that offence (with all requisite criteria having been met), otherwise all of those terms would need striking from the law books.

[New Judge]

Drink driving is a bit different to say, burlglary, AB. It has two distinct elements: (a) Having consumed excess alcohol and (b) driving.

To to prove that somebody has "aided and abetted" both these elements would be very difficult to demonstrate.

[ABerrant]

"Hey, you've had way too much too drink. Ha Ha! Don't bother with a taxi. Here are you're car keys. You don't mind dropping me home do you?"

[New Judge]

I think we’ll have to agree to differ, AB.

Why would the non-driver have possession of the driver’s keys? How is he to know that he has so much alcohol in his system that he is over the legal limit?

But none of that really matters. There is one more vital element missing from your scenario that is necessary. Here’s some legal guidance on “Aiding and abetting”:

“Notice, however, that before any person can be held criminally responsible for the conduct of others it is necessary that the person wilfully associates himself in some way with the crime, and wilfully participates in it.”

Note the last phrase and here’s the difference between drink-driving and, say, burglary. There is no possible way that a passenger can fulfil both elements needed for a drink-drive charge to be successful. He may be drunk, but he had not driven, so he cannot be said to have participated in the crime himself.

I have to say that I have seen details of many, many (probably hundreds) of excess alcohol cases brought to court but I have never encountered a case of aiding and abetting somebody to commit that offence. The above guidance probably goes a long way to explaining why.