Know your limits. The facts about drink driving law.
It’s that time of year again, the office parties are underway and the press is reporting the latest clampdown by the police on drink drivers. At the same time, the usual conversations will be taking place in the pubs about what the legal limit is, along with the various myths about how to try and beat the system.
Of course the only way to be sure of staying on the right side of the law is not to drink and drive at all. Falling foul of the drink driving laws will invariably cause hardship, including potential loss of job, business failure and relationship problems, all brought on by the inability to carry out routine daily activities that a driving disqualification can cause. Not to forget the reported 460 deaths caused by drink driving related incidents in 2007.
In this article, David Staniforth, head of Norrie Waite & Slater solicitors motoring offences department, sets out the facts about drink driving. What the limits are, what the offences and penalties are, and whether it is possible to mount a legal defence against a drink driving charge.
Drink driving law hinges around the offence of driving or attempting to drive a motor vehicle on a road or public place with excess alcohol in your breath, blood or urine above the prescribed limit. Public place includes many areas that are generally thought to be private property, for instance a pub car park (unless the pub is closed and there is some physical barrier after hours such as a gate.)
Drink driving limits
It is a common myth that the legal limit is defined by the number of alcohol ‘units’ a person consumes. The actual limits are measured from a breath, urine or blood test. The limits are:
- 35 micrograms of alcohol in 100ml of breath
- 80 milligrammes of alcohol in 100ml of blood
- 107 milligrammes of alcohol in 100ml or urine
Of course every individual will absorb alcohol differently, based on a great many factors which are impossible to predict accurately. The fact is that any reading above these levels is likely to result in being charged.
Even if you are only just over the limit you will face an automatic disqualification of 12 months if convicted of drink driving. Magistrates have the ability to increase this up to 60 months for repeat offenders, or for first time offenders with very high alcohol readings. In extreme cases a prison sentence may be given.
Another offence involving alcohol is ‘drunk in charge of a motor vehicle’. You can be guilty of this offence just by sitting in the car while over the drink driving limit. Being ‘in charge’ of a vehicle is not defined by the 1988 Road Traffic Act and is therefore a matter of fact, which then involves argument in Court by your lawyer.
You can’t escape the consequences by refusing to provide a sample and depriving the police of the evidence to prosecute. Failing to provide a sample at the roadside or at the police station is classed as a separate offence and refusing to provide a sample for analysis at the police station is classed as more serious than drink driving and has an offence starting point of custody.
Defences against a drink driving charge
Whilst no one condones drink driving, it is possible in some circumstances to mount a legal defence aimed at either dismissing the charge, or reducing the sentence imposed.
Many defences focus on the procedures followed by the police during a drink driving arrest. Strict procedures exist which set out the protocol for dealing with someone who has failed a roadside breath test. This initial roadside test offers an indication only to the police officer to determine if they have grounds for arrest and is not recognised by the Courts as giving a reading that can lead to a conviction.
The second stage of the process is at the police station where further evidence has to be taken. This can be in the form of a fixed position breathalyser or by a urine or blood test. Again all of these tests require strict procedures to be followed by the person administering the test.
Failure to carry out any of the procedure correctly may allow the charge to be successfully challenged.
However, if you do not provide a sample for testing you may be charged with another offence, failing to provide a specimen.
A number of other defences exist which may be used in limited circumstances. Some of these defences would come under mitigating circumstances and be classed as ‘special reasons’:
- The ‘Hip Flask’ Defence: The legal presumption is that the level of alcohol in a person’s body when tested at the police station is supposed to be the same as when they were driving. This clearly can be challenged. For example, someone who is involved in an accident who consumes alcohol after the accident, but before being tested by the police. This is also known as ‘post offence consumption of alcohol’.
- ‘Spiked’ or laced drinks – evidence must be provided that you had no knowledge of the drink being spiked and that you would otherwise have been under the legal limit.
- Duress – if it can be shown that you had to drive out of fear of physical injury and that the distance involved substantiates this you may be able to mount a defence on this basis.
- Necessity – this is where the act of driving while over the limit was the lesser of two evils, for example in a medical emergency where no phone was available.
- For failing to supply a sample of breath there may be a medical defence based on decreased lung capacity, ie acute asthma.
All these types of defences are complex and require an experienced solicitor with in depth knowledge of the law. The best advice anyone can give is, don’t drink and drive. If you do happen to find yourself in trouble with the law, contact David at Norrie Waite & Slater in Sheffield on 0114 2765015.
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