Where it is not possible to say that the person responsible for a vehicle is over the prescribed limit, it will still be an offence where it appears to an officer that they are unfit to drive due to either the influence of drink or drugs. Similarly to the excess alcohol charge, it will be a defence for the person responsible to prove that they had no intention to drive.

In our experience this offence covers a vast number of cases where clients have had to sleep in their car for one reason or another: the loss of house keys, an unexpected change in arrangements, or as a result of a spiked drink. Arresting officers can be challenged both about the level of impairment alleged or observed, and also the circumstances in which they say it was likely that the person responsible would have driven the vehicle.

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