Q I am a learner driver and my husband is teaching me to drive. If we go to the pub and I donít drink any alcohol, but drive home with ëLí plates on, can he drink an amount of beer that will take him over the legal limit?
A So long as your husband does not play any part in propelling the vehicle, whether by taking the wheel, applying any dual controls, or the hand brake, he could not be charged with driving with excess alcohol. However, he could well be charged with being in charge of a vehicle, having consumed excess alcohol.
It is a supervisor’s legal duty to do whatever he can reasonably be expected to be done by a person supervising the acts of another to prevent that other from acting unskilfully or carelessly, or in a manner likely to cause danger to others, and to this extent to participate in the driving.
These duties are important when considering whether someone is ‘in charge’ of a vehicle, as it is an offence to be in charge of a vehicle if the person in charge has consumed excess alcohol. A particular factor that a court has to consider when deciding whether someone was in charge of a vehicle is if there was evidence of an intention to take or assert control of the car by driving or otherwise. This question came before the court in 2003, when it was decided that although there might be circumstances in which a supervisor might be able to prove that there was no likelihood of driving, that is likely to be a difficult task. A supervisor is only required for a learner driver because the learner driver is not yet deemed competent enough to drive on their own, and a supervisor must be prepared, at any time, to take over responsibility for the vehicle.
On the face of it, therefore, your husband could find it hard to defend a claim that he was in charge of the vehicle whilst having consumed excess alcohol. Oddly, the more your husband drinks, the better his chances of an acquittal could be, although he could get into more trouble for aiding and abetting you in driving without an effective supervisor, and you could be guilty of an offence of driving without a supervisor.
If your husband consumed so much alcohol as to render himself unconscious, he could argue that there was no likelihood that he would drive if he is incapable of doing so. Needless to say, this is not a course of action that any sensible person would encourage. Furthermore, the courts do not take kindly to people avoiding conviction in this way, so are reluctant to find that there was no likelihood that an instructor over the limit was not going to attempt to drive the vehicle. They recognise that someone sleeping off a lot of alcohol can kid themselves into thinking they are fine to drive when they finally wake up.