Guernsey Legal Resources

    On a charge of being in charge of a motor vehicle, having an alcohol concentration above the prescribed limit, contrary to s.2(2)(b) of the Road Traffic (Drink Driving) (Guernsey) Law 1989, as amended, the burden of establishing the defence under s.2(3) that “the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath . . . remained likely to exceed the prescribed limit . . .” lies on the accused on the balance of probabilities (Sheldrake v. D.P.P., [2005] 1 A.C. 264, applied).

    Although a trial court’s findings of fact can be impeached on appeal if they are perverse (Bracegirdle v. Oxley, [1947] K.B. 349, referred to), a trial court is entitled to find that an accused has failed to establish a defence under s.2(3) to the requisite standard if he had, at the time he made the statement that there was no likelihood of his driving, such a high concentration of alcohol in his body that “he would barely know what he was doing” and “would have no concept of when he would have been legal or safe to drive,” e.g. in the present case the accused expressed an intention not to drive for the remainder of that day and all the following day. An accused person’s subjective intention can seldom be decisive (and may legitimately be disbelieved) in such circumstances, when he has no way of knowing when his alcohol level will fall below the legal limit and adduces no scientific evidence as to when that point may be reached (Crown Prosecution Service v. Thompson, [2007] EWHC 1841 (Admin), considered).