AIBU to think I can fight this? Mumsnetters I need your help!

[FigureItOutNow]

Please be gentle with me - I'm very stressed over this!
Sorry it'll be a long post but bear with me.

Last week my divorce from a very abusive husband was finalised. I'm late 20s with 3kids under 7 from this man. As part of the abuse he completely isolated me from my family.
Anyway my younger sister has some friends in a nearby big city - she said if I could find a sitter she'd come to this city and we could go out with some of her friends to celebrate (I have no friends at the moment). My neighbours 20year old daughter offered to babysit overnight as long as I was back by 9 as she had work later that day.

On the night out I drove up to city with intention that if I wasn't in a fit state to drive back home by 8am next morning I would get a taxi back home and then come back with my kids on the train ( they love trains) to pick up my car so I parked it somewhere where I knew I wouldn't be charged if I had to leave it at 8am.

On night out I managed to drink far more than I could handle (easy as I haven't drank in years due to abusive ex being controlling). I started feeling really sick at about midnight (2hours into the night) and somehow got split from my sister and her friends. I was feeling really crap and decided to go sleep in my car. I messaged my sister and told her where I was and she said that's fine they'll get me from the car on the way back to her friends.

I was fast asleep in passenger siding my car but alarm kept going off and someone called the police. They came at about 3am and it took them about 5min to wake me up as I was so gone. Anyway they started trying to say that I was drink driving and I said how could I be drink driving if I'm fast asleep in the passenger side? Lots of yeah but you were planning to weren't you/stop lying/ tell the truth type of statements. I was so upset at this point called my sister and had her confirm our plans, even showed them our messages with our plans to go back to her friends.
There were 4 police officers at this point and I could hear discussing if they could charge me with drink driving to which one of them said no but they could charge with being drunk and in charge of a vehicle. They came and told me that they were arresting me for this charge. They asked me to breathalyser but I refused as I was paranoid they were trying to frame me for drink driving (I know I know but I was really drunk and this was a stupid thought process) and I asked them so many times why they wanted to breathalyser me when I had openly admitted that I was drunk and NO INTENTION at all of driving but was waiting on my sister and her friends.

Anyway they arrested me - so so so distressing for me as I've been driving since I was 18 never had a parking/speeding/any ticket whatsoever as I'm one of those annoying people that follows the law to T as I'm terrified of getting arrested (oh the irony).

In the end I spent the night and most of the day in cells, they dropped all charges except the one of failure to cooperate by refusing to breathalyser so please mumsnetters help me figure out if I can fight this. I'm a lone parent and I work in the healthcare industry so could potentially lose my job over this as my solicitor said it would come up as a criminal record in all my pre-work checks!!!

I don't understand why the officer never said it was a criminal offence to refuse the breathalyser, when he asked me to do it and I said I didn't understand why he was asking me to do it he said that he was asking me to do it and that was all the reason he was giving

I'm a very good driver.

No you aren't you:'d already clocked up points before it was revoked.

Court were sympathetic but constrained by sentencing guidelines.

Guidelines recommend 6 points. So you must have had at least another 6 on your licence.

Funny how it seems the world is in the wrong, but you are a good driver.

You're not.

Driving without insurance is only 6 points, so if you were banned through that you already had at least 6 points on.

Only on MN could posters tell a woman who has escaped DV she likes playing the victim

I've come across police officers a lot (not personally charged!). Some are very sympathetic and realistic and consider grey areas.
Done just like the power and exert it.

You get teachers like this and health/social care workers etc. (Come across all in my job).

Please stop the holier than thou posts and understand this is a single parent worried she's going to lose her job for trying to do what she thought was right and sensible.

I think Pandora failed to send her licence in to have the points put on and that was why it was revoked so not so terrible then. Just absent minded, not paying attention to speed limit and not sending licence in.

She probably will lose her job though because even if she only gets a 6 month ban she won't be able to get to work.

motoroffence.co.uk/offences/failing-to-offences/failing-to-provide-a-specimen-for-analysis/

This firm of solicitors seems to specialise in offences like yours OP. Might be worth speaking with them.

I think Pandora failed to send her licence in to have the points put on and that was why it was revoked so not so terrible then. Just absent minded, not paying attention to speed limit and not sending licence in

Speeding, driving without insurance, not following rules to get her points added......not exactly a brilliant and responsible driver?

I didn't even realise you could be charged for being drunk and in charge of a vehicle!

OP I'm sorry this happened to you It sounds like you've had a horribly rough time of it of late, and now this What rotten luck. I would seek a second opinion on the legal advice front and go from there - a second opinion never hurts! I don't know what they could do for on the breathalyser charge front, but ask.

Wow what a horrendous situation OP. Sorry everyone is jumping to stick the knife in. We've all been hammered and until this thread I didn't know it was illegal to sleep it off in your own car! A few weeks ago I went out for a drive, bought some wine and then got home, parked up outside my house and drank some of the bottle while sat listening to music before going back inside. Literally no idea that was a crime as I wouldn't have dreamt of even moving the car a metre and had no reason for it to need to be moved at all. I think this thread has been a wake up call, though it's the first time I did that.

From the original page someone posts this:

The law states that someone cannot be convicted of an “in charge” offence if they can prove there was no intention and / or likelihood of the vehicle being driven whilst the driver was over the prescribed limit.

Unlike many other offences, with the offence of being drunk in charge, the accused must prove that they did not have any intention to drive the vehicle. The prosecution is not required to prove that the accused was likely to drive whilst unfit or over the limit.

A defence is available if it can be shown that there was no likelihood of driving whilst over the prescribed limit and doing this should be established by expert scientific evidence or compelling circumstantial evidence. These defences are known as “statutory defences”.

In a link. Hopefully you can prove via messages with sister that you were not intending to drive. However you will have to stand for the change of failing to provide as that's what happened. I can see why the police took you in as someone sleeping in their car is 99% of the time doing it to sober up before driving in the morning and clearly you were so far gone you wouldn't have been safe to drive for a long time. Hope it works out!

Ps I have friends who go to gigs in other cities, have a few drinks (maybe three or four) then crash in their car to save money before driving home the next day. I'll make sure to tell them to check the law.

I have a friend whose on her way to being a social worker and is working for social services at the moment so obviously has to have all the relevant checks. She has a criminal record and just declares it and interviews and it's never been a problem

Awful, it is buried in the annex of the Highway Code so yes publicised but not exactly highly so. Of course the onus is on motorists to know the law but if we want to prevent offences happening then we need people to know it is an offence in the first place! Realistically people do not sit and read the Highway Code every night.

I have never seen it mentioned in a drink driving campaign for example.

I think the advice is to lock out the keys in the boot so that is quite clear you had no intention to drive.

You need a solicitor

To be honest OP, no-one knows at what point you would have decided to drive home and you would still have been well over the limit. As far as the police are concerned, they probably think that they prevented a DUI accident by taking you to the station. It was a bit daft not to take the breathalyzer.

Advice from who? And how would you get them back out again?

OP. I hope you're ok and wish you all the luck. A quick Google and I came up on this site.

@Missingstreetlife

Police have targets, so often charge then change or drop charge.
Your solicitor should fight your corner, magistrate may dismiss case.
Get second opinion, duty solicitor sometimes lazy and too pally with police

This is so wrong as to be laughable!

@Pandoraphile none of the offences you described would require your arrest as they are absolute offences. So what did you do to justify your arrest.

Police have targets?

I think the advice is to lock out the keys in the boot so that is quite clear you had no intention to drive

No, that is completely wrong, please do not advise people to do that.

There would be nothing to stop the drunk changing their mind, taking the key back and driving the car. Or retrieving the key to drive in the morning when they are still over the limit.

You would still be drunk in charge of the vehicle unless the key is nowhere on your person, car or in the vicinity. For example, you could throw it into a river and that would clearly indicate that you had no intention of driving.

But if the police find the key you are still committing the offence even if it's locked in the boot or hidden in the engine.

"To be honest OP, no-one knows at what point you would have decided to drive home and you would still have been well over the limit. As far as the police are concerned, they probably think that they prevented a DUI accident by taking you to the station. It was a bit daft not to take the breathalyzer."

While I agree with this, I'm very uncomfortable about the idea of police arresting someone for something they thinks she MIGHT have gone onto do before she's actually done it! The only time that's warranted I think is foiling actual terrorism plans or planned murders/crimes with evidence of intent. There was zero evidence here the OP was going to drive intoxicated. Sure they can arrest her to take away the risk and keep her away from the car, but to charge someone with intent to commit a crime with zero evidence is beyond the pale. OP says she has evidence in the form of messages that she wasn't intending to drive.

KityGlitr - they did not arrest her for what she MIGHT have gone on to do. Nor for 'intent to commit a crime'.

They arrested her for what she was already doing.

There was zero evidence here the OP was going to drive intoxicated

She was sitting in a driveable car with the keys in her hand. Little more than zero evidence, wouldn't you say?

I know Shelley, I was replying to a previous poster who seemed to think the police were probably arresting her to prevent a DUI accident.

Hairy: that's evidence that she was sleeping drunk in a car she owned. Not evidence she was going to drive it. she needed the keys to get into it. They weren't in the ignition. She has texts saying she said she would sleep it off in the car (though if the texts said 'until I can drive in the morning' then yes, she's screwed). Maybe I'm missing something but I can think of several reasons I might go sit or sleep in my car without planning to drive it!

Hairy: that's evidence that she was sleeping drunk in a car she owned. Not evidence she was going to drive it

which is why she has been charged with drunk in charge of a vehicle, and not drunk driving, so what exactly are you arguing about?

Police have targets, so often charge then change or drop charge

Absolute bullshit. Police don't have have targets for charging at all. In fact in the majority of cases (not this one) it's actually CPS who make the decision to charge not the Police.

Even in the days they had detection targets they would 'lose' the detection if the charge was pulled.

And I don't believe that any officer, particularly in response to a direct question would tell anyone it wasn't an offence to refuse to provide a specimen of breath. The fact that it is an offence to provide a breathalyser test and that you may be prosecuted is part of the learnt script officers are taught when requesting a breath test.