Motorist not guilty of drink driving on private road

Posted by Barry Culshaw on
Blake Morgan's Motoring Offences Team was consulted by A who was facing prosecution for driving with excess alcohol. The charge had been brought by Thames Valley Police and the case was being prosecuted by the Crown Prosecution Service.

A was alleged to have driven a motorcar a short distance along a gravel surfaced private road with a breath alcohol reading of 103 mg of alcohol in a 100 ml of breath. According to A the vehicle only moved about a metre and it had only been her intention to move the vehicle to a more suitable parking space immediately outside her home address.

Barry Culshaw, a consultant and road traffic specialist within the Motoring Offences Team had conduct of the case throughout. As it was A's firm instructions that the road was a private road and as there had been no attempt to access the nearby public road, Barry advised A to tender a not guilty plea.

The matter came for trial before the justices at Reading Magistrates' Court. The Crown claimed that the gravel surfaced road was a road to which the public had access and, accordingly, was subject to the Road Traffic Act 1988. The main thrust of the Crown's case was that although the road was marked as "private – no parking" there were no barriers preventing vehicular access from a public road. There was also a footpath running along the gravel road which gave pedestrian access between two public roads.

The arresting officer was the only witness called by the Crown to give evidence. The officer produced photographs of the gravel surfaced road and also confirmed that any member of the public could access the footpath and indeed the road when walking from one public road to the other. However, during the course of the officer's evidence the officer made a number of important concessions when cross examined by Barry. Firstly, the officer accepted that there was a very small movement of the vehicle which was consistent with the expressed intention of A to move the vehicle a short distance to another parking space. Secondly, a cyclist that the officer had witnessed using the footpath could have been a resident or a visitor to one of the residences. Thirdly, the officer did concede that so far as vehicular access was concerned and as the gravel road was a cul-de-sac no driver of a vehicle would have any purpose entering the road other than to access one of the dwellings or to visit same.

At the close of the prosecution case Barry successfully made a submission that A had no case to answer. Barry took the justices through three High Court cases dating from 2001 to 2013. The detailed law reports confirmed how on each of these occasions a motorist had been convicted of drink driving but on each occasion had successfully appealed to the High Court on the basis that at no stage had the Crown led any evidence to the convicting court of public user of the road / place in question. The justices in dismissing the charge of drink driving expressly stated that they had considered very carefully the case law and in applying the case law to the facts of the current case it was also evident that the Crown had at no stage led any evidence of public user of the gravel surfaced road. In dismissing the charge the justices also granted a defence costs order in A's favour.

A was greatly relieved at the outcome as she faced a lengthy period of disqualification from driving if convicted given the very high breath alcohol reading. Indeed, the Magistrates' Court Sentencing Guidelines for an offence of that nature recommends a starting point of a community order and not a fine.

This case also illustrates the importance of motorists securing specialist legal representation when facing a trial particularly, as in this case, where there is a point of law of some complexity.

About the Author

Barry Specialises in road transport law within our Driver Defence team. He represents clients facing allegations of careless/dangerous driving, driving with excess alcohol and speeding.

Barry Culshaw
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