Drink driving while asleep in vehicle

This is a question that comes up surprisingly often, and the answer is more nuanced than most people expect.

The key legal position:

The offence under section 5(1)(b) of the Road Traffic Act 1988 makes it an offence to be "in charge of" a motor vehicle on a road or other public place while over the prescribed alcohol limit. This is separate from the more serious offence of actually driving or attempting to drive while over the limit.

Being asleep in a car while over the limit can absolutely result in a charge, specifically of being "in charge" of a vehicle. You do not need to be driving or even have the engine running.

What does "in charge" mean:

The courts have interpreted this broadly. If you are the owner or recent driver of the vehicle, or you have the keys and are in or near the vehicle, you are likely to be considered in charge of it. Being asleep in the driver's seat with the keys in your pocket or in the ignition would be a classic scenario where a charge could follow.

The statutory defence:

Section 5(2) of the 1988 Act provides a defence. You can avoid conviction if you can prove on the balance of probabilities that there was no likelihood of you driving the vehicle while still over the limit. This is an evidential burden on you, which is unusual in criminal law.

Factors the court will consider include where you were in the vehicle (driver's seat versus back seat), where the keys were, whether the engine was running, what your stated intention was, whether you had made alternative arrangements to get home, whether the car was parked safely, how much you had drunk, and how long you had been asleep.

For example, someone asleep in the back seat with the keys locked in the boot and a pre-booked taxi for the morning is in a much stronger position than someone slumped in the driver's seat with the key in the ignition and the engine running.

The penalties:

Being in charge while over the limit carries a maximum penalty of three months' imprisonment or a fine up to level 4 on the standard scale, or both. It also carries a discretionary disqualification or a mandatory endorsement of 10 penalty points. This is less severe than driving while over the limit, but it is still a criminal conviction with significant consequences.

Practical considerations:

1. If you are over the limit and need to sleep it off in your car, the safest legal position is to be in the back seat, with the keys out of the ignition and ideally not easily accessible, with the engine off, and ideally with some evidence that you had no intention of driving, such as a booked taxi or a message to someone saying you planned to sleep and collect the car in the morning.

2. Even with all those precautions, you could still be arrested and charged. The defence under section 5(2) is something you raise at trial, not something that prevents an officer from arresting you at the roadside.

3. If you have been charged with this offence, the specific facts matter enormously. The distinction between a conviction and an acquittal often turns on small details about where you were sitting, what you said to the officer, where the keys were, and what your plans were.

If you are facing a charge and want to explore the defence, gathering evidence of your intentions that night, such as phone messages, taxi bookings, or witness accounts, would be a sensible first step.