Drink driving / drunk in charge of a motor vehicle

Drink driving / drunk in charge of a motor vehicle

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.

A 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).

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

There is a margin for error built into the law. In breath, even though the limit is 35 police don't charge until 40. In some circumstances you may be required to provide blood or urine the choice of which it is for the police to decide. The police generally chose blood as it picks up a wider range of drugs and the quantities in which they are in your body. You should take this option; you have nothing to lose as you will be charged for certain on the breath reading.

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Penalties for drink driving

Even if you are only just over the limit you will face an automatic disqualification of 12 months. 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. If this is your second drink drive offence within the 10 year period the minimum disqualifications three years stop.

In some cases you may be able to offer a defence to try and reduce the sentence, or to offer a plea of "not guilty" if appropriate.

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Technical Defences for drink driving

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.

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 (failing to provide a specimen) and refusing to provide a sample for analysis at the police station is classed has an offence and has a starting point of custody. This is because the court don’t know the amount of alcohol in your body and do not want to sentence on the basis of the minimum.

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Other Defences for drink driving

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.
• "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.

Drunk in charge of a motor vehicle

This is a different charge involving alcohol. 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. This then involves argument.

The offence falls into two distinct classes: whether you are the lawful owner or possessor of the vehicle, or the recent driver. A defence against this charge will usually relate to proving that there was no likelihood of you driving the vehicle while over the limit.

To mount any sort of defence against these charges it is critical that you contact us at the earliest opportunity.

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