Driving with excess alcohol / drink or drug driving

The Law relating to Excess Alcohol offences contains stricter penalties than most other areas of Road Traffic Law. A long ban can be distressing, because of the restriction it places on both someone's professional and personal life. The courts have some discretion to reduce the length of the ban, and in certain circumstances will not disqualify at all (see Special Reasons). There are also some outright defences.

Mary Monson Solicitors has particular expertise in Drink Driving offences, and we have included a case study below followed by a general guide to the law in this area in theory and in practice.

Case Study

Our client was accused of driving with excess alcohol, with a reading of 51 micrograms of alcohol per 100 millilitres of breath. He was involved a minor collision with another car just outside his house. He had come inside, where his wife and a family friend were waiting. He had already had a small amount to drink before the accident, but not enough to be over the legal limit. In the house, suffering from minor shock, he drank two brandies to calm his nerves. The police arrived shortly afterwards, he was breathalysed, arrested, and later charged.

He instructed us to represent him. Because he had not been over the limit at the time of driving, he had a defence to the charge. This defence is called "post-driving consumption" or also "the hip flask defence". It was not, however, simply a case of disclosing this defence to the police. This defence had to be supported in court by medical reports (showing what his alcohol level would have been without the brandies). We also called his family as witnesses that he had drunk the brandies after driving. Mary Monson represented him in court, and he received a verdict of Not Guilty, with a warning from the magistrates to take more care when driving.

The Legal Framework

Most people who are charged with drink related driving offences are charged under the offence of Driving or attempting to drive 'with excess alcohol' in blood, breath or urine (section 4(1) Road Traffic Act 1988). To show drink driving under this law, the prosecution must provide a printout from an approved breath testing device.

The offence of driving whilst unfit through drink or drugs is contained in section 4 Road Traffic Act 1998 (known as RTA 1988). As with driving with excess alcohol, It applies to public places (i.e. places to which the general public have access). This offence is often used where the police suspect drug use where no technology for drug detection is available. Evidence from a doctor who examines the suspect can be enough to convict, but can sometimes be challenged if approached correctly.

Breathalyser Equipment

There are two stages of technology in detection and evidence gathering for drink driving offences. The first is the road side breath test, which is used for officers to decide if they have grounds for arrest or not. The device used is usually a variation of the Lion Alcometer series of portable breathalysers. The device will give an indication of whether the test is a pass, fail, or if no reading can be given. It may also give an indication of the level of alcohol in the breath, although the roadside devices are not recognised by UK Courts as giving a reading that can lead to a conviction. This evidence has to be obtained at the police station, either by a reading from a fixed position breathalyser in the police station, or by blood or urine sample. The breathalysers in police stations are usually either the Lion Intoxilyzer 6000 or the Intoximeter ECIR (the latter is used overwhelmingly in London and surrounding areas). The officer supervising the breath test must give clear instructions beforehand as to how to use the equipment, and give a statutory warning that failure to supply the specimen of breath will result in prosecution. Failure to do these things could result in a defence to any prosecution for Failure to Provide a Specimen of Breath. For more information on this area of law, click 'Failure to provide a sample or specimen' on the left hand toolbar.

Blood and Urine Tests

Under certain circumstances, a blood or urine test is either an option for the arrested person, or is a requirement punishable with a ban if not provided. There are two major reasons why this should happen. The first is if the breath reading is between 40 and 50 micrograms per 100 millilitres of blood. The reason that the blood or urine test should be offered in these circumstances is because they are considered to be more accurate than a breath test, which is only considered to be a reflection of the true 80 mg per 100 millilitres limit. Because the alcohol 'blood to breath ratio' differs in individuals, somebody who is just over the limit on a breathalyser may be under the limit for blood, which is the true indicator. Such a person will be technically guilty, but may not be disqualified if testing shows them to have an unusual ratio of alcohol in breath compared to blood levels.

If the police put inappropriate pressure on a person to not exercise their right to have a blood or urine sample, then that can amount to a defence. An officer giving his own opinion that a blood test is a bad idea is not usually enough. The defence must show that the advice was more than just an opinion, but was inappropriate and led the person to decline the blood test. Mary Monson Solicitors have had cases of driving with excess alcohol dropped by the prosecution where such inappropriate behaviour has been raised by the client.

Sentencing

For a conviction of driving with excess alcohol the sentencing that the law dictates is stringent and inflexible. A minimum of 12 months is required by law. In most cases, the court will consider a drink driving awareness course to reduce the ban by a quarter.

The Sentencing Guidelines

Magistrates, when considering sentence will bear in mind the Magistrates Association Sentencing Guidelines, which give guidance for when longer bans (for readings over 55 micrograms in breath), community penalties (over 85 micrograms in breath) or prison sentences (over 115 in breath) should be considered.

These are, however, merely guidelines, and for all except very high readings, a well prepared mitigation argument relating to both the offence and the client can often bring the sentence down to a total of not much more than 12 months after a drink driving awareness course is completed.

Where readings are very high and custody seems likely, it is imperative to have legal representation. Custody is often avoidable if the right steps are taken in advance of the client's appearance at court.

Mitigation

There are different schools of thought with relation to drink/drug driving  pleas of guilty, and what material is relevant to the court. One approach is that there is little point addressing mitigation for drink related offences when apparently clear magistrates guidelines exist.

This is plainly defeatist and of no help to the client. Discretion exists for most drink driving offences, and a well argued guilty plea can reduce a 2 year ban to a 12 or 13 months.

Another apparently more convincing approach is that only mitigating evidence relating to the allegations (ie that the offence is less serious etc) should be brought before the court. This is the conventional wisdom, that facts relating to the offence and not the personal circumstances of the client are relevant in a legal sense. But magistrates are not lawyers, and are subject to the same motivations as most people when making decisions about how to deal with people.

Take the example of someone whose career and family life are left in tatters, or cares for a disabled relative who will have mobility problems if they cannot be driven around. Such situations, sensitively presented, can amount to good reason to reduce the length of a drink driving ban.

Defences

The classic drink driving defences include the hip flask defence (see above), defences of necessity and of 'laced drinks' (usually fought under Special Reasons provisions).

Special Reasons

Special Reasons is a legal principle codified in the case of Whittall v Kirby which gives discretion to a judge to not disqualify a driver where, even though the defendant is guilty in law, an exceptional mitigating circumstance exists which means that no ban should be imposed. See the section on Special Reasons.