The term driving is given its ordinary meaning but in its broadest sense. The test is that the driver is “in a substantial sense controlling the movement and direction of the car”.

The following circumstances have been held to be driving:-

• Pushing and steering
• Pushing a motorcycle whilst sat astride it.
• Engine running driver sat in the drivers sear although not moving
• Being towed whilst in driver’s seat.
• Steering the vehicle even if not in the driver’s seat.

The law differs in Scotland where standing alongside a car pushing it and leaning in to steer the car is held to be driving.

The following circumstances have not been held to be driving:-

• Engine not switched on and handbrake is released
• Passenger awoke to find driver asleep and car moving steered it 200 yds to safety
• During struggle in a taxi the aggressor caught the accelerator causing the taxi to drive along the road mounting the pavement.
• Stationary at traffic lights/row of traffic.

The general test has two conditions

1. Do you have control over the DIRECTION of the car?

AND

2. Does the activity in question fall within the ordinary meaning of the word “driving”?

If you have been charged with an offence and you think that you were not driving because of the circumstances you should always seek the advice of a specialist solicitor as there is a great deal of case law on the subject and as you can see from the examples mentioned above it is not always obvious. 

As a rule, unless you are exceptionally impaired, with difficulty.

The police will request a specimen of breath (in the case of alcohol) blood or urine.

If your results come back over the limit then they will charge the offences of being above the prescribed limit because it is easier to prove. However, they cannot always obtain breath specimens or in the case of drugs blood specimen so when other results come back with traces of drugs they will often charge the offence of driving whilst unfit.

The presence of alcohol or drugs in itself will not suffice to convict you of the offence of driving whilst unfit.

They MUST prove that it was the presence of that drug that caused the impairment to such an extent you are fit to drive. Low levels eg 2-4 ug cannabis are unlikely to satisfy the test.

Once the police have evidence of alcohol or drugs in your system they must then prove impairment which they do by way of the Romberg Test and medical evidence. 

The Romberg test and has to be administered by a trained police officer.

There is a measurement of the pupils taken which if outside the normal range of 3-6.5 is an indication that the person is affected by drugs. However, there has to be more tests satisfied. There are:-

1. Stand still with hands by the side, tilt head back and tell the officer when you think 30 seconds has passed.

2. Walk and turn where you are expected to walk heel to toe for 9 steps do a 180 degree turn and walk 9 steps back.

3. Stand on one leg with the other raised 6-8” from the ground and count in terms of 10001, 1002 and then repeat the same on the other leg.

4. Finger to nose which involves standing with arms outstretched and head tilted back and alternating touch the tip on your nose with the tip of your finger.

If you fail some or all of these tests then you will be charged with the substantive offence of Driving whilst unfit through drugs assuming there is some evidence of drugs in your system.

However, failing the Romberg test is very subjective and it is really meant for identifying neurological disorders and is not of itself evidence that a person is unfit to drive a vehicle.

The impairment tests are likely to become less frequent after the 5th March 2015 when the Offence of Driving whilst over a drugs limit comes into force. 

If you are charged with an offence of driving whilst unfit you should contact us immediately.

The offence is usually charged as a fall back when they cannot prove you are driving over the limit for

drink or drugs. With drugs it is often because they cannot extract blood which means they are relying on the urine procedure which the police frequently get wrong.

As it is so difficult for the prosecution to prove it is imperative that you take advice before going to court.

We offer FREE no obligation advice and you should take advantage. We have 100% success rate on driving whilst unfit offences.