NEW: Drunk in Charge in Ireland: The Complete Legal Guide (2025)
- Patrick Horan
- 12 minutes ago
- 8 min read
What You Need to Know About Section 5 of the Road Traffic Act 2010
- (Garda 999 operator) Garda, hello.
- (Emergency dispatch caller) She’s there
-(Garda 999 operator). Thanks. Garda, hello?
- (Female caller) Hello?
-(Garda 999 operator) Yeah.
-Hi. I think that I’m having a complete nervous breakdown. Would you be able to come and collect me?
-What’s going on there?
-I’m having a nervous breakdown, and I need to go to St Patrick’s hospital.
-Ok you’ll need an ambulance to bring you to the hospital, not the Gardai
-No, I don’t believe that I need an ambulance, but I would like some assistance if that’s ok.
-What’s your name and address please?
- My name is Angela Murphy* and I am parked in Clontarf, and I don’t believe that I’m fit to drive this car. I would just like some assistance if you guys can come and help me.
-Where are you exactly?
-I believe that I am on St Lawrence Road in Clontarf. I’m not quite sure exactly where I am.
-Ok
- (Emergency dispatch caller) That caller has cleared the line
-(Garda) Alright thanks.
- (transcript of 999 call made by client later arrested and charged with drunk in charge)
* not client’s real name.
This might sound like a joke, but under Irish road traffic law, it's serious legal advice: don't wash your car when drunk.
If you're in charge of a vehicle while intoxicated—even if you're not driving—you could face arrest, prosecution, a driving disqualification, or even imprisonment.
This offence, known as "drunk in charge," is established under Section 5 of the Road Traffic Act 2010 and represents one of the most misunderstood areas of Irish road traffic legislation.
"For drunk in charge cases, once the prosecution proves
you were in charge of a vehicle while intoxicated,
the burden shifts to you to prove
you had no intention to drive"
What Does "Drunk in Charge" Really Mean?
The drunk in charge offence occurs in various scenarios:
Sitting in the driver's seat while intoxicated, with the engine running
Sitting in the driver's seat while intoxicated, even with the engine off
Standing next to your vehicle while intoxicated, with keys in your possession
Walking towards your vehicle while intoxicated, when it appears you might drive
You don't need to be driving. You don't even need the engine on.
The critical question is: did you intend to drive, or could it reasonably be presumed that you might drive?
The Legal Framework: Section 5 Road Traffic Act 2010
Under Section 5 of the Road Traffic Act 2010, you commit an offence if you are:
In charge of a mechanically propelled vehicle
In a public place
With intent to drive or attempt to drive (but not actually driving)
While either:
Under the influence of an intoxicant to the extent of being incapable of proper control, or
Exceeding the legal limits (with stricter thresholds for learner, novice, and professional drivers)
The legislation states explicitly in Section 5(8):
"In a prosecution for an offence under this section it shall be presumed that the defendant intended to drive or attempt to drive the vehicle concerned until he or she shows the contrary."
This creates what legal professionals call a "reverse burden of proof"—unlike most criminal charges where the prosecution must prove everything beyond reasonable doubt, with drunk in charge allegations, you must prove you had no intention to drive.
What Does "In Charge" Actually Mean?
Interestingly, Irish law doesn't precisely define what constitutes being "in charge" of a vehicle. This lack of definition isn't unique to Ireland—UK legislation, from which much of Irish law derives, similarly lacks a clear definition.
According to PM Callow's authoritative UK legal textbook The Drink-and Drug-Drive Offences, "there is no [legal] definition of the expression 'in charge'. Its interpretation is a question of fact."
In the Irish case of Byrne [2002], the court stated that what constitutes being "in charge" must be applied in a "common sense way." The court took the view that while judges might not be able to define it precisely, they "know it when they see it."
"My name is Angela Murphy and I am parked in Clontarf,
and I don’t believe that I’m fit to drive this car.
I would just like some assistance
if you guys can come and help me"
For further guidance, Irish courts often reference the landmark UK case of Watkins [1989], which identified two typical scenarios:
First Scenario:
When the person is the owner/driver of the vehicle, they're presumed to be in charge unless:
They've given the vehicle to someone else, or
They're no longer in control with no realistic possibility of resuming control (e.g., they're at home in bed or significantly distant from the vehicle)
Second Scenario:
When the person isn't the owner but is in or near the vehicle, they're in charge if:
They're in control of the vehicle, or
They gained entry and demonstrated an intention to drive, or
They have obtained keys in circumstances showing an intent to drive soon
Legal Alcohol Limits Under the Act
Section 5 establishes specific alcohol concentration thresholds. You're over the limit if, within 3 hours of being in charge, your alcohol concentration exceeds:
For Regular Drivers:
Blood: 50 milligrams per 100 millilitres
Urine: 67 milligrams per 100 millilitres
Breath: 22 microgrammes per 100 millilitres
For Specified Persons (Learner, Novice, and Professional Drivers):
Blood: 20 milligrams per 100 millilitres
Urine: 27 milligrams per 100 millilitres
Breath: 9 microgrammes per 100 millilitres
The Reverse Burden of Proof: A Critical Legal Distinction
The drunk in charge offence features a unique aspect of criminal law known as a "reverse burden of proof."
This represents a significant departure from the fundamental principle established in Woolmington v DPP—the "golden thread" of criminal justice—where the prosecution must typically prove every element of an offence beyond reasonable doubt.
For drunk in charge cases, once the prosecution proves you were in charge of a vehicle while intoxicated, the burden shifts to you to prove you had no intention to drive.
As Section 5(8) states, it "shall be presumed that the defendant intended to drive" until you show otherwise.
This creates a substantial legal hurdle, but it's not insurmountable with proper legal representation and evidence.
Real Court Cases: How Drunk in Charge Plays Out in Practice
Case Study 1: The Tow Truck Defence
A client of mine had been driving while intoxicated and struck a kerb, damaging his wheel. He pulled over, called a tow truck, and waited in the driver's seat.
When Gardaí arrived, they arrested him for being drunk in charge. However, the tow truck arrived simultaneously, substantiating his claim that he had no intention to drive.
The court dismissed the charge.
Case Study 2: The Designated Driver Dispute
Another client had been drinking and his sober partner agreed to drive him.
After an argument, she briefly left while he waited in the driver's seat.
Gardaí arrived and arrested him.
At trial, his partner testified she was returning to drive him home since their residence was too distant to walk.
Again, the court accepted there was no intent to drive and dismissed the charge.
Case Study 3: The Theoretical Risk
Technically, someone intoxicated while washing their car on a public road could be "in charge" of it.
However, this scenario is unlikely in practice.
Drunk in charge arrests typically occur late at night or early morning, not during daylight hours when people normally wash cars.
Nevertheless, this illustrates the potentially broad application of the offence.
Penalties for Drunk in Charge Offences
Section 5(5) specifies that a person guilty of an offence under this section is liable on summary conviction to:
A fine not exceeding €5,000
Imprisonment for a term not exceeding 6 months
Or both fine and imprisonment
A disqualification from driving
Section 5(7) explicitly states that the Probation of Offenders Act 1907 does not apply to this offence, meaning courts cannot simply dismiss the charge or apply probation without conviction, even for first-time offenders with otherwise clean records.
Effective Defence Strategies
To successfully defend against a drunk in charge allegation, you must overcome the presumption of intent to drive with credible evidence. Simply stating "I wasn't going to drive" is insufficient—the court requires substantiating proof.
Effective defence examples include:
1. Arranged Alternative Transportation
Evidence you had called a taxi or arranged a lift
Witness testimony confirming someone was coming to collect you
Phone records or text messages showing calls to arrange alternative transportation
2. Vehicle Inoperability
Proof the vehicle couldn't be driven (mechanical failure, flat tyre)
Evidence a tow truck had been called
Evidence from mechanics or recovery services
Family Gatherings: A Particular Risk Period
Holidays present heightened risks for drunk in charge offences. Family gatherings sometimes involve alcohol consumption, and disputes might lead someone to seek refuge in their vehicle. This seemingly innocent act could result in arrest if Gardaí believe you're in charge while intoxicated.
Legal Distinctions Worth Noting
Section 5(6) states that a person charged with drunk in charge may, instead of being found guilty of that offence, be found guilty of an offence under Section 4 (actual drunk driving), depending on the evidence.
Conclusion: The Importance of Expert Legal Representation
The drunk in charge offence represents a significant legal risk for motorists in Ireland, with the reverse burden of proof creating particular challenges for the accused.
The consequences of conviction are severe, including disqualification from driving.
Remember: The key to defending a drunk in charge case lies in proving you had no intention to drive.
This requires credible evidence, not mere assertions, and professional legal guidance can make all the difference in presenting your defence effectively.
What happened to Angela?
Angela had lost her mother and was very depressed.
In October 2022 she drove to the apartment complex where her mother had lived because “I wanted to be close to her and ask her for help”.
She sat on a bench in a communal garden of the apartment complex and began to drink from a bottle of wine.
She was alone.
"it was clear from the 999 call
that Angela had made,
that she had demonstrated a clear lack
of intention to drive the car,
thereby rebutting the presumption that she
would do so"
At some stage her husband appeared and begged her to go home. She would not.
He left and she said that she remembered “planning to walk down to the seafront and enter the water as it was high tide at the time. I also remember starting to go there and panicking”
Having called the emergency services (“I remember asking the operator to get the Guards to come and get me as I was ‘not fit’ to be on my own”) Angela returned to her car. She put a coat on and sat in her car waiting for the Gardai.
When they arrived, Angela was arrested for being drunk in charge. After she was released, she returned home.
The next day she “realised how close I had come to entering the water, I knew I had to be in hospital immediately for my own safety, so my husband brought me into hospital”.
Her husband died unexpectedly the following month, and she was released from hospital to return to her children. She received a summons for court in February 2023.
On the day that she rang me she finished the conversation by telling me that she was going to scatter her husband’s ashes.
The case was listed for trial in September 2023 in Dublin District Court. To the great credit of the State, they agreed to withdraw the prosecution case against Angela on the morning of the trial.
While they didn’t offer an explanation to the court, it was clear from the audio transcript of the 999 call that Angela had made, that she had demonstrated a clear lack of intention to drive the car, thereby rebutting the legal presumption that she would do so.
______________________________________
Key Legal References
Road Traffic Act 2010, Section 5
Irish case law including Byrne (2002)
UK case law including Watkins (1989)
Woolmington v DPP (on burden of proof)
Probation of Offenders Act 1907
Licensing Act 1872, Section 12
Comments