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Originally Posted by Chris
But they don't have to prove the car was driven - that's what the offence of 'drunk in charge' is for. If they can prove that it was driven by him, then of course they could go for the full-blown drink driving ticket.
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In the example above, there was witness testimony that the car had been driven. What wasn't (very) clear was if the car owner who was drunk was the one doing the driving.
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In court, it would still be for the prosecution to make a case, beyond reasonable doubt, that the man was 'in charge' of the car. They can't just get up in front of the judge and say 'he done it m'lud, and the Crown rests'. The burden of proof hasn't been turned on its head. But if the prosecution can do that, at that point the onus is on the defence to prove mitigating circumstances sufficient to avoid a guilty verdict.
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That's not exactly what I read in Derek's posts:
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If you can persuade the Magistrate/Sheriff you were not intending to drive they can clear you of it but the prosecution don't have to prove you were planning to drive.
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In your example if you were in the house with your car keys in your pocket then its a jump to assume you'd be charged. If you were walking down the street towards the car with the keys in your hand then it's likely you'd be having a quick trip to the station.
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I completely accept that a person found drunk behind the wheel of a car in the middle of nowhere can be deemed to have the intention of driving the car (even disregarding how he got there). But it seems to me that walking towards your car with the keys in hand is an altogether different case. There are a multitude of reasons why someone would want to get into the car without intending to drive it, so it would seem to me that the prosecution would have a rather weak case.