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We are a specialist firm of drink driving solicitors. We have vast experience in this field and are skilled in all statutory and procedural defences, as well as crafting expert mitigation. If you are charged with this offence, call our drink driving solicitors now on 01623 397200.
Which legislation covers drink driving offences?
Drink driving, and related offences, are covered by the Road Traffic Act 1988, as follows:-
- driving (or in charge) when under the influence of drink or drugs (Section 4);
- driving (or in charge/attempting to drive) with excess alcohol (Section 5);
- failing to provide a specimen of breath for screening (Section 6(4));
- failing to provide a specimen for analysis (Section 7(6)).
For more information relating to the law when a death has occurred as a result of dangerous or careless driving when under the influence of drink or drugs, please click here.
How is a charging decision made for drink driving?
There will usually have to be medical and/or scientific evidence to prove that a driver has exceeded the legal limit.
When this is the case, then a charge under Section 5 of the Act is appropriate.
The prescribed breath alcohol limit is 35 micrograms.
However, a driver will not be prosecuted under Section 5 with a breath alcohol level of less than 40 micrograms (Home Office circular 46/1983).
The level is established by: (i) evidential breath testing machine; (ii) analysis of a blood or urine sample; or (iii) back calculations.
How does ‘impairment’ and ‘unfitness to drive’ affect a charging decision?
Guidance from the Crown Prosecution Service (CPS) indicates that a person should be charged with a Section 4 offence, rather than a Section 5 offence, where there is ‘clear evidence of impairment over and above the evidence of the breath analysis’.
In some instances, a person can be charged with both Section 4 and 5 offences where there is evidence of unfitness. However, this is not usually necessary. It can happen when:-
- the evidence indicates impairment as a result of both drugs and excess consumption of alcohol;
- there is a possible defence to the Section 5 offence on the grounds that the sample taken by the police is likely to be ruled inadmissible.
In addition, the CPS indicates ‘where there is evidence to support unfitness for a charge under Section 4, and also evidence to support an allegation of failing to provide a specimen for a laboratory test under Section 7(6), you may charge both offences. That may be particularly appropriate if there is a possible defence to the charge of failing to provide a specimen.’
How is a charging decision made for failing to provide a specimen?
When there is evidence to support the charging decision, a person should be charged with failing to provide a specimen of breath for screening under Section 6(4).
However, if a person pleads guilty to a related offence under Sections 4, 5 or 7(6) then a charge would not usually be made under Section 6(4).
If a person has a medical reason for not providing a specimen (i.e. chest infection or asthma), or is so stressed and anxious that they cannot comply with the request to provide a specimen, then they may have a defence to the charge. Our specialist drink driving solicitors can advise on this.
What sentencing powers do the courts have for drink driving offences?
Drink driving offences are heard at a magistrates’ court, where the sentencing powers are limited to a custodial sentence of 6 months.
If a person pleads or is found guilty of a drink driving offence, the court is obliged to impose a minimum disqualification period of 12 months (if a first offence), and for a minimum period of 3 years if the person has been convicted of a relevant offence in the preceding 10 years.
The Magistrates Sentencing Guidelines given full details of possible penalties for drink driving and relevant offences.
Basically, there are 4 categories of breath/blood/urine levels with 4 corresponding levels of penalties, which range from the minimum 12 month disqualification and a fine up to a 60 month disqualification and possible 26 week custodial sentence.
There are separate sentencing guidelines (see link) for the other offences mentioned above.
Could I avoid a disqualification if I have a Special Reason?
Yes, it is possible to avoid a disqualification for a drink driving offence if you have a Special Reason which is recognised and successfully argued at court.
In brief, the Special Reasons are as follows: (i) driving a very short distance; (ii) driving in an emergency; and (iii) driving after your drinks have been ‘spiked’ by another person.
As a Special Reasons argument needs careful preparation and presentation, we would urge you to contact our specialist drink driving solicitors for advice if you believe one of the above situations could apply to you.