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I asked this question a couple of months ago which in turn was based on a question asked by another user. I found the original question while looking for answers following a real-life brush with the Road Traffic Act though which I'm still thinking about. In Summer last year, I was working at my allotment when my parked car was hit. I was not in the car at the time and, although we actually heard the bang, we only found out the car had been hit when we were walked back from our plot and saw it. The other driver stopped and, because he was complaining of neck and back pain, an ambulance had been called. When an ambulance is called to a road accident in the UK the police are also despatched. The police arrived and decided on breath tests all round because there was a moving vehicle involved. I was a bit puzzled by this because neither my wife nor I had even been in the car at the time but, because we hadn't been drinking, I wasn't too bothered. In turns out while we were waiting for a breathalyser to be dropped off by another unit, their sergeant back at the station said it wasn't necessary to test us and we were free to go.

However, it's not unheard of for Mrs BWFC and I to drive to the allotment, grill a couple of steaks and share a bottle of wine then leave the car and walk home. If this had been the situation, and the officers had a breathalyser with them, there could have been a different outcome. If I had been asked to do a breath test and done it, I would very likely have over the limit which is an offence. If I'd politely but firmly said words to the effect of "on your bike, I wasn't even in the car", I'm then failing to provide a sample, which is also an offence. My understanding is that there is no mitigation for drink-driving but there is a "reasonable excuse" defence for failing to provide and not driving is one of the possible excuses. However, there is no guarantee that the I would be cleared if I were to go down that road. How could I avoid committing an offence in this situation?
It seems that the only options are take the drink-driving charge which in my case would automatically result in loss of my job or roll the dice in the criminal justice system.

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    You wouldn't have committed an offence if you provided the sample while explaining that you had not been driving (assuming the police believed you). It's common for people to drive somewhere, drink and leave the car. In England, even if the police maintained you had been driving, you would be able to plead not guilty and challenge it in front of the magistrate, and if you lost the initial case to appeal to the crown court.
    – Stuart F
    Commented Apr 10 at 15:31
  • @StuartF That's an answer. Can I suggest you copy it into one rather than leaving it as a comment. Commented Apr 11 at 14:21

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Police require reasonable grounds

The police do not have the legal authority to compel production of a breath sample unless they have:

reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance

Criminal Code, ss. 320.27, 320.28

If a person does not believe the police have the legal authority to compel a breath sample they could (a) refuse (but this is an independent offence under s. 320.15, if it turns out the demand was valid); or (b) provide it on protest and later contest its admissibility.

Post-driving alcohol consumption

If a person is found to have a blood–alcohol level that is equal to or exceeds 80 mg of alcohol in 100 mL of blood within two hours of having operated a conveyance, that makes out the offence of "operation while impaired", unless the person (1) had consumed alcohol after operating the conveyance; (2) had no reasonable expectation that they would be required to provide a sample; and (3) their alcohol consumption is consistent with their blood alcohol concentration and with their having had, at the time when they were operating the conveyance, a permissible blood alcohol concentration. See Criminal Code, s. 320.14.

Not a catch 22

You note "there is no guarantee that the I would be cleared," and call this in the title a "catch 22" situation. But it is not a catch 22. In the scenario, there was no offence committed. The concern you have could apply at every moment of every day: what if the police charge you with something that you didn't do. That does not make it a catch 22. The burden is on the Crown to prove its case beyond a reasonable doubt.

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If you don't want any risk of being charged for a relevant offence then the only answer is "if you drive then don't drink; if you want to drink then get a lift there and back."

Given:

It is an offence to refuse a breathalyser test without a 'reasonable excuse' (such as a relevant medical condition) - section 7(6) Road Traffic Act 1988.

It is an offence to drive or be 'in charge' of a motor vehicle with alcohol concentration above the prescribed limit - section 5 Road Traffic Act 1988.

'In charge' depends on the circumstances. Were you inside the vehicle, nearby or far away? If you were in the vehicle, where were you and where were the keys? Simply put, if you're in the vehicle and the keys are in the ignition, you're in charge of the vehicle. If you're a mile away, walking away from the car, you're not in charge of the vehicle.

It is a defence for you to prove that there was no likelihood of you driving the vehicle while your alcohol level was above the prescribed limit. But you don't want to risk it.

Section 5 Road Traffic Act 1988:

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

(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.

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It’s an offence to refuse a lawfully required breath test

A police officer has the power to require a breath test if they believe on reasonable grounds that a person was driving a vehicle, in the driver’s seat, or in the passenger seat while a learner driver was driving.

The assessment of if the request was reasonable is one initially for the police officer and subject to review by the court - your opinion on it is irrelevant. You were there, you had the keys, it’s not obviously unreasonable to believe that you might have been in the car. If you refuse a breath test in the circumstances it’s likely a court would uphold the charge that the refusal was an offence.

If the breath test is negative, that’s the end of the matter. If it’s positive and you get cited, then the Crown still has to prove you were in the driver’s seat - you don’t have to prove you weren’t.

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