Drink Driving & Excess Alcohol

Drink Driving is a potentially serious but relatively common offence. In some countries, it referred to as DUI or driving under the influence, but in England & Wales, the official wording is driving with alcohol above the prescribed legal limit.

If you have a question about a drink drive offence, please give our solicitors a call on 0115 784 0382 or fill out our contact form.

We can advise at the police station and represent you at court. 

We advise on possible defences and/or special reasons in each case. We always request and check the police paperwork to check for errors. Our solicitors have defended drink driving allegations resulting in cases being dropped or in an acquittal.

We will always provide honest advice so that you can make an informed decision about the best way forward for you.

What happens in Drink driving cases?

If you have been stopped by the police on suspicion of drink driving, it is likely the first thing that will happen is that you will be breathalysed at the roadside. If you fail the roadside breath test, you will be arrested and taken to the police station.

The roadside breath test is only used to confirm the police officer's reasonable suspicion that you were driving while over the limit. The roadside reading cannot be used as evidence of your drink driving. 

An evidential reading will be requested at the police station. You will be asked to provide two samples of breath, and the lower of the two readings provided will be taken as the level of alcohol in your breath.

Drink Driving is one of the most common yet most serious driving offences. The offence carries a mandatory ban upon conviction unless you can put forward a successful special reasons argument. Also, see below for some defences available for drink driving.

The two charges you may face if you are suspected of driving or attempting to drive with alcohol in your system are:

  • Driving or attempting to drive a mechanically propelled vehicle on a road or public place while unfit through drink (s.4 Road Traffic Act 1988)
  • Driving or attempting to drive a mechanically propelled vehicle on a road or public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit (s.5 Road Traffic Act 1988)

If you provide a specimen of breath, blood or urine for analysis at the police station and are found to be over the limit, it is more likely that you will be charged with an offence under s.5 above. However, the police do sometimes erroneously charge drivers for being unfit under s.4. Often this is rectified by the Crown Prosecution Service once they receive the file from the police. Provided they are within the 6-month time limit, they will usually be permitted to do this.

Drink Driving - s.5 Road Traffic Act 1988 

Drink Driving Limits

The 2019 legal limit in England is:

  • 35 microgrammes of alcohol in 100 millilitres of breath (with a policy in place for a prosecution to begin at 40 microgrammes);
  • 80 milligrammes of alcohol in 100 millilitres of blood;
  • 107 milligrammes of alcohol in 100 millilitres of urine.

Drink driving limits are based on the level of likely impairment. The sentence imposed depends mainly on the level of alcohol in a person's system. Use our calculator below to give you an idea of the likely penalty according to the Magistrates Court Sentencing Guidelines.

What do the police have to prove in cases of s.5 drink driving?

The prosecution has to prove that:

  • you drove or attempted to drive a motor vehicle on a road or other public place, and; 
  • that you did so after consuming so much alcohol that the proportion of it in your breath, blood or urine exceeds the prescribed limit.

Drink Driving Defences

If you have a possible defence to drink driving, we'll find it. Below is a summary of the types of defence which we have used successfully.

No evidence that you were driving or attempting to drive

If the police didn't see you drive or attempt to drive a vehicle, they may not be able to prove you drove the vehicle. This can depend on whether there are other witnesses and the strength of their evidence. If the police cannot prove you drove the vehicle, then you should not be convicted of drink driving.

Insufficient evidence that the alcohol level was above the limit at the time of driving 

If there is an issue with the equipment used to analyse the specimen, then the reading produced may be unreliable. If you give a breath reading, you should be offered a copy of the printout produced by the machine. The police do not have to ensure you take the printout, but they do have to offer it to you. This is important as it is the evidence of the machine's calibration as well as the reading. Without this, the police may be unable to adduce evidence of a reliable reading.

There are also several more 'technical defences' such as if the police fail to give you the statutory warning. The statutory warning is wording that makes clear that you are required to provide a specimen and that if you do not provide a specimen, you could face prosecution for 'failing to provide a specimen'. This requirement must be made either at a police station or hospital and it must be made by a police constable in uniform. The police officer must also have reasonable suspicion that the person that an offence was being committed or that the person was involved in a road traffic accident. 

Evidence that the level of alcohol was below the limit at the time of driving 

If you've consumed alcohol after driving the vehicle but before you were breathalysed, then you may have a defence. This is often referred to as the 'Hip Flask' defence. The police should ask you if you have consumed alcohol after driving and can affect your credibility if you do not mention this at the time.

Unless your case is that you had not drunk any alcohol before driving, an expert witness would usually be required to provide a 'back calculation' to demonstrate that the later drinking is what put you over the limit.

Other options

Medical reasons for being over the limit are not generally considered defences. These fall under the category of Special Reasons. This means that you are technically guilty, but there are circumstances which the court should be aware of which can give them discretion over the sentence imposed.

If you believe that you have a defence to drink driving, or that special reasons may apply, you really should discuss this with a solicitor before taking it any further.

Pleading guilty to drink driving

Our drink driving solicitors can put forward the best mitigation so that any disqualification is kept to the minimum.

Plenty of drivers accept their guilt and are looking for help with damage limitation. They want to plead guilty to drink driving and come out with the lowest possible penalty. They may be conscious that they will lose their job and/or have increased future expenses as a result of not being able to drive which means they cannot afford significant legal fees. 

In this case, we can advise how to prepare the best mitigation for their court hearing. We provide advice to those considering representing themselves and also provide representation to those who would rather have an experienced solicitor attend with them. We will talk through all of the options with you so that you can make an informed decision depending on your circumstances. We work on a fixed fee basis so you know where you stand from the outset.

One of the most frequently asked questions is "How many units can I drink and still be legal to drive". Everyone is different so there is no way of calculating this easily. It depends on several factors including your body weight and makeup, how quickly your body metabolises alcohol and whether you drink regularly. 

We use expert witnesses when a calculation of this nature is required. 

Beware the old "two-pint rule" as you may still be over the legal driving limit. 

Driving or attempting to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in the person’s breath, blood or urine exceeds the prescribed limit

At the bottom end of the scale, they range from a one-year mandatory ban (provided it's the first offence of this type in the last ten years, otherwise it's a mandatory minimum three-year ban). At the top end, you risk a prison sentence and a lengthy ban.

Below is a table showing the sentence starting point depending on the reading provided. The table sets out the guidelines for sentences depending on whether you provided a breath sample, a blood sample or a urine sample. The court should then take into account other aggravating or mitigating factors and adjust the penalty accordingly.

The table below shows the length of disqualification before any reduction for a drink drive rehabilitation course

Drink Driving Penalties Table

The police can stop motorists at random, but they cannot require breath tests at random. There must be something which gives rise to a reasonable suspicion that the driver has been drinking. In practice, the police usually invariably say that it was the smell of alcohol on the motorist's breath which gave rise to that suspicion.

If you fail without reasonable excuse to provide a breath sample, you are guilty of an offence. If you fail to provide at the roadside, you face 4 penalty points being endorsed on your licence. If you fail to provide at the police station, you risk similar penalties to those which would have been imposed had you provided a sample which was above the limit. Of course, they won't know what your real limit is, but if you appear intoxicated, the police will be sure to make a note of this on the documentation, and the prosecutor is likely to mention their comments at court.

If you want to put forward a defence that you couldn't give the sample, you will usually need to be able to back this up with medical evidence. 

The guidelines for a first offence of failing to provide a specimen (without reasonable excuse) suggest the following penalties:

Bottom end

A fine and a ban of 12-16 months

Top-end

26 weeks' custody and a ban of up to 36 months

Previous offences

The penalties are increased significantly if you have committed a drink or drug driving offence within the previous 10 years. In that case, the minimum period of disqualification is 36 months.

No, this option was removed in April 2015. It was previously available as an option for those who blew a reading of between 40 and 50. You should still be offered blood or urine as an alternative if the police consider that you may have a 'reasonable excuse' not to provide a sample of breath. The police decide whether to request you to provide blood or urine. 

If you have a reasonable excuse for not providing a sample you may have a defence. If you do not mention the reason for not providing at the time, it can make it more difficult to establish a defence. Depending on the circumstances, it may still be possible to raise a defence, particularly when you did not know that you had reason at the time. 

It is possible is some cases but not all. If you would like us to ascertain whether the police have made a mistake somewhere or to provide evidence that the intoxilyzer is inaccurate, then we are more than happy to do so. You need to be aware that we may or may not find something which can be used in your defence and if there is an issue with the intoxilyser machine, an expert witness will usually need to become involved. 

The prosecution doesn't have a duty to disclose all the evidence before you enter a plea, which means that at the very least, a not guilty plea has to be entered for the case against you to be disclosed. If you plead guilty at the earliest opportunity, you usually receive one-third discount on your financial penalty and if you subsequently change your plea to guilty at a later time, you'll have lost some of your credit.

That's not to say that you should plead guilty if there is insufficient evidence against you, but you must make an informed decision and are aware of the implications. We'll do our best for you whatever you decide to do, and we promise to provide honest advice at all times.

Exceptional Hardship can only be argued to avoid a totting disqualification. That is when a person is going to reach 12 points or more within three years and faces a minimum six-month ban. It cannot be used to prevent a ban from being imposed where the disqualification is obligatory for the offence itself such as drink driving.

The court has the discretion to offer this course to those convicted of drink driving offences. If completed by a certain date, it will reduce the imposed driving ban by 25%. For this reason, most people want the opportunity to attend a course. The court may not offer the course if they do not consider it appropriate. Sometimes it will not be offered to people who have completed a course before, but it will depend on the circumstances. 

The course lasts 3 days with at least one week's gap between each day. They vary in cost depending on the provider with some offering discounts for those who pay early. 

If you want to go on a course, you will need to ask the court and confirm which provider you want to use. You can search for course providers here

You don't have to complete the course, but if you do not, you will have to serve the full length of the driving ban imposed. 

Our specialist drink driving solicitors can help you with your case. Please get in touch today for free initial advice on 0115 784 0382 or fill out our contact form.