Drinking & DrivingDrinking and driving offences carry a minimum 12 month ban. Have you been accused? We can help…
Drink Driving Defences
Driving Conviction Offence Codes: DR10
Drinking and Driving is covered by Section 5 of the Road Traffic Act 1988
Have you been arrested for drinking and driving?
Drink driving is a serious offence which carries a mandatory, minimum 12 month disqualification, but often longer depending on the reading, as well as high fines. In many cases the court will impose community orders or even prison for serious cases.
If you have ever been accused of drink driving, seek advice from a specialist lawyer immediately. You can call us for free initial advice, or submit a question with the button below:
Drink Driving Penalties First offence:
- 12 Month Minimum Ban
- Large Fine (means tested)
Drink Driving Penalties 2nd Offence:
(if second offence is within 10 years of first)
- Minimum 3 year ban
- Large Fine (means tested)
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Drink Drive limits
The legal limits for drink driving are set in the table below, showing what you could be at risk of:
As you can see, the higher the reading, the more severe the sentence. But before deciding on the exact sentence, the Court must consider a number of aggravating and mitigating factors, such as previous convictions, the defendant’s character, the plea entered, the standard of driving and the level of impairment, whether there has been a collision and any injuries, the defendant’s cooperation, and many more.
So for example, a defendant in the 2nd bracket with a reading of, say, 70 in breath, would be at risk of a 17-22 month ban, and either a fine or a community order (or both).
If the case is one where the defendant was stopped, was cooperative with the police, there was no crash and minimal bad driving, they have no previous convictions and have pleaded guilty at the earliest opportunity, we would expect to see the ban towards the lower end of the bracket (17 months) and a fine only, rather than a community order.
If the case is one where the defendant had a crash, there were injuries and pleaded not guilty on procedural grounds but lost, we would expect to see the sentence towards the higher end of the bracket – so perhaps 20-22 months and a low level community order.
Disqualification and the drink drive course
If convicted of drink driving, any defendant can expect a minimum 12 month ban, but potentially longer depending on the reading.
The Court should offer the defendant the chance to complete a drink driving rehab course by a certain date which, if completed in time, will take ¼ off of the disqualification.
If the offender has committed a previous offence within 10 years, the minimum disqualification the Court can impose is 3 years (but potentially longer, depending on the reading and the facts of the case).
Medicals
If the reading is over 87.5 in breath (or the equivalent in blood or urine), OR the offences is your second within 10 years, the DVLA will consider you a ‘high risk offender’, meaning that after the end of the disqualification, you will be required to take a medical before you get your licence back.
Community orders and prison
Looking at the table above, you can see that a person being sentenced in the 1st bracket for a 1st offence shouldn’t be at risk of a community order or prison.
But, any person being sentenced in the 2nd, 3rd or 4th brackets, or any person committing a second offence will be.
A community order can be in a number of forms such as unpaid work, tag and curfew, alcohol/drug rehabilitation. The Court would set the level of community order at the hearing and probation would be in touch afterwards to go through the specifics.
If the offence is a very serious one, prison can be a risk.
Drink Driving Defences
If you are considering defending any charge of drink driving, always seek legal advice first. Presenting a defence in the Magistrates Court is complicated at the best of times. However, below we have identified some of the key areas to be considered.
There are two main ways to defend the case in the Magistrates Court. The first is to examine the prosecution case against you, and determine whether there is sufficient evidence to convict.
The second it's to advance a positive case that you are not guilty, for example that it was a medical emergency.
Both are explained below, but we reiterate that if you are considering advancing the defence, always seek legal advice first.
Prosecution evidence and police station procedures
Driving
The burden remains on the prosecution to prove, beyond reasonable doubt, that the defendant was the driver. Each case must be dependant on its own particular facts. If there is no direct evidence of driving, for example witness or confession evidence, the factors to be considered are:
- whether keys were found on the defendant
- witnesses that have seen the vehicle being driven
- whether the defendant is the only person insured
- whether they are the owner of the vehicle
- whether they were stood by it or sat in the driver’s seat
- has it been suggested anybody else has driven the vehicle
This is a non exhaustive list and each case will have it’s own facts. There is a presumption that the registered keeper can be the driver further to the case of R –v- Collins [1994], but this is only an inference, it is not substantial and by itself, is not enough to convict.
A Vehicle
The prosecution must prove that the person was driving a mechanically propelled vehicle. But this is not confined to cars. It can even include electric scooters and electric bikes. See our page on electric bikes for more information.
On a Road or Other Public Place
An offence of drink driving has to be committed on a road or public place. Ownership is not the key element here. A piece of land can be privately owned but could still be considered a public place. For example, a pub car park or a fast food drive-thru could still be considered public if it is open.
The court would have to consider many factors as to whether a piece of land is open to the public, such as whether there are barriers to entry, whether the owner restricts access, any signs restricting access, whether the public utilise access, just to name a few.
With Excess Alcohol
When a defendant is taken to the police station or hospital for a sample to be taken, the police will go through “MGDD” forms. The Officers must follow strict procedures when taking specimens of breath, blood or urine for analysis which are outlined on these forms.
It is common place for the defence to request evidence such as the MGDD forms procedure forms, the CCTV footage from custody, the custody record and detention log, so that the procedures can be thoroughly examined.
The burden on proving the procedures have been followed correctly is on the Crown to prove, beyond reasonable doubt, that they have been followed. It is never for the defendant to prove that the procedures were not followed (DPP –v- Warren [1992]; Rush –v- DPP [1994]).
Roadside Breath Test
Firstly is the roadside breath test. These are preliminary screening devices. The Police generally administer a roadside breath test if they suspect the defendant is drunk. If that person refuses to provide a roadside specimen they will receive 4 penalty points. If they do refuse or if it is failed, then the Police can arrest that person and proceed to take them to a Police Station.
Station Breath Test
Refer to form MGDD/A. This is the form for the Officers to complete for a breath test.
Before beginning the breath test, the Officers ask the person whether since driving they have consumed any alcohol, eaten anything, brought anything up from their stomach, or used any mouth wash or mouth spray. The purpose of asking these questions is to determine whether the reading they are about to obtain could have been affected by anything the defendant has done since driving.
If the defendant answers no to all, the test will continue as normal. If the defendant answers yes, the Officers may complete form MGDD/D, a different form, and send it to a toxicologist to eliminate any alcohol consumed after driving, but they are not obliged to so.
The Officers then ask the defendant if, in the last 20 minutes they have done any of the above. The reason these questions are asked is because these are things that can produce mouth alcohol. Generally it takes 8-10 minutes for saliva in the mouth to eliminate any liquids, so by asking these questions the Officers are making sure that there is going to be no mouth alcohol which could render the reading unreliable.
If the answer to these questions is no, the test continues as normal. If the defendant answers yes, the Police will generally wait 20 minutes before continuing.
Then the Police ask the defendant to provide two specimens of breath and warn them that failing to provide will render that person liable to prosecution (s.7(7) Road Traffic Act 1988). This is very important and if the Officers do not give that warning then even if that person provides a specimen of breath, blood or urine the result of that test are inadmissible and the defendant must be acquitted.
If the warning is given, the Officers will then read out the paragraph in the MGDDA that assists the person in providing a specimen of breath, and explain to them how they should blow into the machine. The person will then blow into the machine for a few seconds until a reading has been registered. The detainee must give two valid specimens and it is the lower of the two that is used.
Readings Above 40ug
If the defendant gives two readings, the lower of which was 40ug or above, generally the Police will charge for driving with excess alcohol and will give the driver a court date to attend the local Magistrates’ Court.
Even though the legal limit is 35ug, the Police will not usually prosecute between 36-39ug.
However, even if the reading is 39 or below, it does not prevent the police from charging for a different offence of driving whilst unfit. This is where the police don't have evidence that somebody was above the legal limit, but still argue that they were unfit to drive through drink. For information on this specific offence, see our unfit page. (link to the unfit page)
No Specimens or One Single Specimen
The police can only charge if the defendant has given 2 specimens of breath. If the defendant gives no specimens or just one single specimen, one of two things will happen.
If the police are satisfied that there is a good reason for that, so for example the machine wasn’t working properly or there are medical reasons for being unable to provide breath, then they will move onto a secondary, liquid specimen of either blood or urine.
However, the police may charge the defendant with a different offence of failing to provide a specimen for analysis. For information on this offence, see our failing to provide page. (link to the failing to provide page)
Blood Procedure
The police will request a specimen of blood if they suspect that the defendant is under the influence of drugs, or as above if there is good reason as to why they should not take breath.
Here, the police will refer to two separate forms, MGDD/A and MGDD/B.
The provision of taking blood is dealt with under s.15 Road Traffic Offenders Act 1988. The blood specimen is taken by a healthcare professional. One specimen is taken and is split into two parts, one part being kept by the Police and sent for analysis, and one part being given to the defendant. It must be one sample taken and then split into two. If two separate samples were taken, the defendant given one and then the Police send one away for analysis, the Act has not been complied with.
The accused should be supplied with his part of the specimen, which can then be sent to an independent laboratory for analysis.
Once a specimen has been taken, generally that person will be bailed pending analysis of the sample. If the sample is returned as being above the limit, the defendant will then receive a court summons through the post.
Urine Specimens
Occasionally, instead of blood the police will ask for a specimen of urine.
Under s.7(6) of the Act, a urine specimen must be taken within one hour of an initial specimen being given. Effectively, this means that one specimen must be given and disregarded, and then a second specimen given. It is this second specimen that is divided into two, with the defendant taking one and the Police keeping the other.
Hospitals, Consent and Specimens Under s.7A
If the defendant has been involved in a crash, on many occasions they are taken to the hospital. Of course at the hospital the police cannot ask somebody for a station breath test, so instead they will take specimen of blood whilst the defendant is at the hospital. Here, they will refer to a different form, form MGDD/C
In these circumstances the Police Officer will approach the medical practitioner in charge of the person’s welfare and ask whether that person is capable of consenting to a specimen being taken. If the Doctor states that the person is capable of consenting then the Officer will ask that person to provide a specimen of blood or urine for analysis and will warn them that failure to give the specimen will render him liable to prosecution. The Officer must still give the warnings.
If the Doctor says that person is incapable of consenting, the Officer then asks the Doctor if he consents to a specimen of blood being taken. If the Doctor says yes, then a specimen of blood is taken under s.7A whilst that person is unconscious, and when the person either regains consciousness or regains the ability to consent, the Officer then asks the patient whether they consent to the sample being tested, and the patient will commit an offence of failing to supply if they refuse. (link to the failing to provide page)
Drink Driving Defences (defendant advancing positive defences)
The second way a case can be defended is to advance a positive case that the defendant is not guilty for a specific reason.
The burden of proof is on the defence on the balance of probabilities.
Post Driving Alcohol Consumption
This is commonly known as a ‘hip flask’ defence and applies where the defendant after alcohol after driving.
The police do not have to prove that you were drunk behind the wheel. All the police have to prove is that you were driving at some point, and drunk at some point. They can legally assume that you were there for drink driving. If the defendant suggests that They were not drunk behind the wheel but were only drunk upon arrest because they had drank alcohol after driving, then it is for the defendant to prove that.
The defence is provided by section 15(3) of the Road Traffic Offenders Act 1988.
There are two parts to the defence.
- That the defendant drank alcohol after driving. This is going to depend on a number of things such as any witnesses as to the standard of driving, or anybody who has seen the defendant behind the wheel. Whether the defendant mentioned drinking alcohol after driving whilst they were being arrested or during any police station interview. Whether the defendant can provide any positive evidence of drinking after driving.
- That if the defendant had not drank after driving, they would not have been above the limit. For example, if the defendant is saying that they had no alcohol before driving and a bottle of vodka after driving, then it would be obvious that the only reason they're above the limit is because of the alcohol consumed after driving. If however the defendant had three pints before driving and only a couple of pints after driving, it is not so obvious. They still may have been above the limit anyway. For this second part of the defence, an expert toxicologist report is usually required to do the maths.
Laced Drinks
Where the defendant is suggesting that they unknowingly consumed alcohol (eg if their drinks were laced), this is a ‘special reason’.
A special reason is where somebody is guilty of an offence (which they would be because they are drink driving – albeit unknowingly) but argue there are special reasons for not disqualifying.
If successful the courts can reduce the disqualification from 12 months, or they can refrain from banning it all, or they can give penalty points instead.
The leading case on this is Pugsley –v- Hunter [1973]. In this case it was held that the courts could be entitled to find special reasons where a defendant can establish that:
- a) Their drinks were laced;
- b) That they did not know nor suspect that the drinks were laced;
- c) If the drink had not been laced, the additional alcohol would not have exceeded the limit.
Evidence will be needed to prove the lacing of the drinks, and an expert toxicology report is usually required to prove the third point, that without the additional alcohol the defendant would not have been above the limit.
Duress / Emergency
To amount to a defence or a special reason, an emergency must be a matter significant risk or safety. If the circumstances are such that there are no other options but to drive, the circumstances may amount to duress.
A good quote can be found in the case of Taylor –v- Rajan [1974]: “if a man, in the well founded belief that he will not drive again, puts his car into the garage, goes into the house and has a certain amount to drink in the belief that he is not going to drive again, and if thereafter there is an emergency which requires him to take his car out, then that can in law amount to a special reason for not disqualifying… One of the most important matters, which Justices have to consider in the exercise of their discretion, is whether the emergency was sufficiently acute to justify the driver taking his car out… The Court must consider the whole of the circumstances, the nature and degree of the crisis of the emergency, whether they were alternative means of transport or methods of dealing with the crisis. They should have regard to the manner in which the defendant drove and to whether the defendant acted responsibly or otherwise… The test is not a subjective one. The matter must be considered objectively and the quality and the gravity of the crises must be assessed in that way…”
Shortness of Distance
Occasionally, the defendant might be able to argue special reasons if they only drove a very short distance in certain circumstances. The leading is Chatters –v- Burke [1986], in which it was held that there are seven criteria that must be considered. They are: -
1) How far the vehicle was driven;
2) In what manner it was driven;
3) The state of the vehicle;
4) Whether the driver intended to go further;
5) The road and traffic conditions at the time;
6) Whether there was a possibility of danger by coming into contact with other road users or pedestrians;
7) What the reason was for the car being driven.
Of these matters, item six was the most important in the Court’s mind, the distance driven was not of itself the determinant of Special Reasons. However, we tend to find that the Court will only find these if there was a good reason for the vehicle being driven and it was only driven a matter of yards or even feet.
Medical Conditions (acid reflux eg)
There are various medical conditions which could potentially affect the breath reading. However, the most important factor to consider with any medical condition is that it is going to require, in nearly all cases, full medical reports together with expert toxicology reports.
You would be required to get a letter from your GP or your specialist to confirm exactly what the medical condition is, and this would need to be backed up by an expert toxicology report to explain exactly how that medical condition could affect the reading.
A common one would for example be acid reflux. Sometimes defendants will argue that they had not consumed enough alcohol to put them above the limit, but instead the alcohol they did consume was regurgitated into their mouth prior to giving breath, and therefore the machine was reading the alcohol they'd regurgitated, rather then the alcohol that was in their body. However, again this would require evidence of acid reflux as well as a toxicology report to examine the readings to work out whether this is a possibility.
Medication can occasionally affect the readings, but again would require expert toxicology evidence to confirm the type of medication used and whether that could in any way have affected the reading.
Additionally, we have seen a recent increase in the volume of Auto Brewery Syndrome (link to the auto brewery syndrome page) whereby a motorist has provided a positive breath, blood or urine test without having consumed any alcohol.
Patterson Law can help you. You can get free advice about your drink drive related motoring offence allegations. Please click here to ASK US A FREE QUESTION.
Testimonials
Graham, I would just like to put in writing how pleased we are with your legal services. The preparations for the defence have been very thorough and detailed and we can't fault that in any way. I was very impressed with the level and volume of detailed case law that you were able to bring to bear, including the changes prepared to mitigate the very late evidence that the CPS tried to introduce. I would therefore just like to convey may heartfelt thanks for all of your efforts along the way keeping us informed on progress and which eventually lead to the CPS offering no further evidence and the case being dropped Without your expert help it could have been a very different outcome, which would have been a travesty of justice as there was never any intention to drive I would also like to express our thanks to Joseph Byrne, the Barrister you instructed to represent Chris at the hearing. He was extremely well prepared and VERY knowledgeable on our case and the points of Law surrounding it. He ran rings around the CPS Barrister who appeared to be very poorly prepared. Once again to you and your team and to Joesph Byrne, thank you.
You were simply superb defending me, thank you.
Thank you Graham. Your sensitivity and understanding was of great help to me. Never again! Please pass on my thanks to everyone who helped me. I am on the mend finally.
Two Drink Drive Allegations in 2 years - Both defended successfully. First offence I registered 153 mg's and faced a sentencing guideline of 12 weeks imprisonment, disqualification, fines etc. as it is over 4 times the limit - I received; 100 Hrs community service, £85 Costs ( The minimum the CPS can ask for!), £60 Victim surcharge, no points and no disqualification. Second offence; a vehicle I & 9 others have access to was involved in a damage only accident. Police came to my house & I blew 149 which is over four times the limit, but I had been drinking all day out on foot and indoors prior to my arrest as it was new years eve. The case against me was immediately withdrawn in court, in that it failed the Crown Prosecution Service code for prosecution. Without your legal advice I would have been hung out to dry on both occasions. Thank you to everyone who helped me.
Excellent service and professional handling of a delicate situation. Both Dan & Emma are excellent and sympathetic.
I initially got in touch with you for some advice and a quote based on my case. I felt so at ease when speaking to Joanna that it was an easy decision for me to instruct the company. Joanna was excellent throughout my case, giving me advice, replying to my emails and calls pretty much straight away and always making things as easy as possible for me. She was very personable and always put things in laymans terms for me. A massive plus when going through such a period of uncertainty. Nothing was too much hassle. Massive thank you to Joanna and all your brilliant team.
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