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What Are The Defences to a Drink Driving Charge

Drink driving is a serious offence which can lead to sentences ranging from a 12-month driving ban and a fine all the way to a custodial sentence and driving ban of 60 months but there are several legal defences that can be raised to contest or mitigate a drink driving charge.

The main defences are:

  • challenging the accuracy of the alcohol reading based on issues with equipment or specimen collection procedures;
  • arguing the alcohol was consumed post-driving or that the driving was on private property;
  • lack of consent to provide a specimen;
  • and contesting that you actually operated the vehicle at all.

Defendants may also cite special mitigating circumstances, though these do not constitute complete defences. Potential arguments for mitigating circumstances can include driving for an emergency reason or moving the car for safety.

While full defences aim to invalidate the charge, mitigation claims can reduce the associated penalties.

Expert Legal Advice For A Drink Driving Offence

Navigating the intricacies of drink driving offences and defences can be highly complex but our legal experts at Caddick Davies offer extensive experience handling these cases from all angles.

We thoroughly understand the full range of options available and can provide strategic advice tailored to your specific circumstances when facing a charge. Whether it’s contesting the accuracy of readings, arguing mitigating factors, or even denying that you operated the vehicle, we will build and present the strongest case possible.

Don’t simply accept the penalties without first exploring every potential avenue, technicality, and defence. We’re here to help protect your rights. Should you find yourself being charged under Section 5(1)(a) of the Road Traffic Act 1988 for drink driving, please get in touch.

Contact our specialist motor defence team anytime at 0151 944 4967 for a free consultation on your drink driving charge.

What Is A Charge of Drink Driving? 

Drink driving refers to operating or attempting to operate a motor vehicle while over the legal alcohol limit. In England and Wales, the offence falls under Section 5(1)(a) of the Road Traffic Act 1988.

The act of drink driving is proven if police can demonstrate through evidential testing that a driver’s blood, breath, or urine exceeded the prescribed alcohol limits at the time they were in control of a vehicle on a road or public place.

The legal alcohol limits are:

  • Breath alcohol level – 35 micrograms of alcohol per 100 millilitres
  • Blood alcohol level – 80 milligrammes of alcohol per 100 millilitres
  • Urine alcohol level – 107 milligrammes of alcohol per 100 millilitres

So in the eyes of the law, if a driver is shown to have alcohol in their system beyond those set limits while operating a vehicle, they are considered to be illegally drunk driving and can face criminal charges carrying penalties like fines, licence disqualification, and even imprisonment depending on circumstances.

It is a strict liability offence, meaning that no intent or impairment needs to be shown – simply being over the limit while in control of a vehicle suffices for a drunk driving conviction. That is why legal expertise is so crucial when facing charges

Drink Driving Court Outcomes: What You Can Expect and How to Prepare for Your Hearing on a drunk in charge case.

What Are The Defences To A Drink Driving Charge?

Here is an overview of the technical and factual defences that exist for a drink driving charge. Not all will be applicable to every case, but our expert team can help you to find the right option to consider for your case if a defence exists.

Technical Faults with Procedure

In cases where a specimen is taken for analysis, the police are required to comply with strict procedures and protocols. It is common practice for the police to follow a pro-forma document known as the ‘Manual of Guidance Drink and Drug Driving’ (MGDD).

A failure by the police to comply with the correct procedure in a drink driving case could lead to the case against you failing. One aspect of the procedure that is particularly important is the giving of a ‘statutory warning’, this warning should be given by the officer conducting the procedure before any specimen is taken from you.

The statutory warning for providing a breath specimen is:

“I require you to provide two specimens of breath for analysis by means of an approved device. The specimen with the lower proportion of alcohol may be used as evidence and the other will be disregarded. I warn you that failure to provide either of these specimens will render you liable to prosecution”

A failure to give this warning is something that could lead to the Prosecution case losing at trial.

Denial of the Alcohol Reading

If you do not believe that you should have been over the specified legal limit because you drank a minimal quantity of alcohol or did not drink at all, then you may have a defence.

In the case of Cracknell v Willis [1988] 1 AC 450 it was determined that a Defendant may challenge the reading obtained by relying on their recollected consumption of alcohol. It can be the case that the equipment used or the analysis of your specimen was inaccurate.

In cases where a breathalyser was used, the police could have failed to calibrate or maintain the device correctly which has the potential to invalidate the readings obtained.

In instances where a blood or urine sample is taken the error may lie with the laboratory procedure carried out. It is an extremely complex and technical procedure to obtain accurate readings from blood or urine, and, when investigated, it may be shown that there was a human error or issues with equipment.

Consent

As mentioned earlier, the police will often tell you that they require you to provide a specimen for analysis and will ask you whether you consent to providing this (the ‘Statutory Warning’). Consent is required because you have a human right to privacy and bodily integrity, in other words, you should be allowed to decide what happens to your body.

When a sample of blood is taken by a healthcare professional then that professional should also get your consent before doing so.If consent has not been obtained by the police or it has been coerced then this could constitute a defence.

Post-Driving Consumption

Another defence in a drink driving case, is known as post-driving consumption or the ‘hip flask’ defence. This is an argument that you were only over the specified legal limit as a result of alcohol consumed after you stopped driving. In order to be successful with this defence you will be required to prove that:

  1. You were under the legal limit at the time of driving;
  2. The reading obtained over the legal limit is attributable to the alcohol consumed post-driving; and
  3. You did not drive again after drinking.

In cases of this nature, it can be necessary to obtain an expert report to show that your post-driving consumption was the reason that you were over the legal limit.

Multiple Specimens for Analysis

Section 7 of the Road Traffic Act 1988 outlines that the police can obtain either two specimens of breath for analysis or a specimen of blood or urine when investigating an offence under Section 5 of the Road Traffic Act 1988.

It is very clear that the police therefore cannot obtain additional specimens. Should the police have taken more than two evidential breath samples or more than one specimen of blood or urine any reading obtained may be ruled inadmissible by the court.

It is important to clarify that a specimen of blood may be split into two separate vials after the sample is taken, this is the standard procedure when taking a specimen of blood and does not constitute the taking of two samples.

Driving on Private Property

An important element of a drink driving offence is that you were driving on a road or public place. It is therefore a defence if you were driving on private property at the time.

It is not always clear-cut what constitutes private property but a general rule of thumb is that it will not be considered private if members of the general public have access to it.

Duress or Coercion

A defence of duress or coercion is not common in cases of drink driving. In order to bring a defence of this nature there must be external pressure from another party, usually in the form of a threat of harm, which causes you to commit the offence.

Automatism

Automatism, much like duress, is an uncommon defence to drink driving but if you are able to show that the drink driving was outside of your control due to an involuntary, unconscious or impaired state then you may be successful with a defence.

An example of when automatism may apply would be if you were suffering from hypoglycemia (as a result of a diabetic episode) and as a result were not in control of your body or actions.

Factual Denial of Driving the Vehicle

A required element of the offence under Section 5(1)(a) is that you drove or attempted to drive. This aspect of the case is often the easiest for the police to prove as most people are stopped by an officer at the time of the alleged offence.

Should it be the case that you had not driven or attempted to drive the vehicle then there would be a defence available to you on this ground. It would be for the Prosecution to prove that you either drove or attempted to drive.

The Prosecution will commonly rely upon the witness evidence of officers, body-worn video footage or admissions from Defendants when trying to prove that you drove or attempted to do so.

Other Considerations

As with all criminal charges it is for the Prosecution to prove the relevant elements of the offence have been satisfied. If you enter a plea of not guilty the Prosecution will be required to provide the evidence that proves the elements of the offence. A failure to provide the evidence in time can lead to it being excluded and ultimately the case against you failing.

The circumstances of the offence can also be extremely important when presenting a case to the court. Often these circumstances will not constitute a defence but may still have an impact upon whether the court imposes any sentence.

These considerations are known as special reasons. Special reasons can range from driving in an emergency to moving the vehicle a few yards because it was in a hazardous spot. If you think that you may have a special reason argument to raise in your drink driving case, it is best that you speak with a legal professional.

Sentencing For Drink Driving 

The punishment for drink driving depends mostly on your blood alcohol level and your past record.

If you are found guilty or plead guilty to drink driving, the sentence will be harsher if:

  • Your blood alcohol level is very high over the legal limit. The higher the limit, the worse the sentence.
  • You have been convicted of drink driving within the past 10 years. Repeat offences lead to tougher sentences.

So the main factors are:

  • How much over the alcohol limit your blood test shows.
  • If you have prior drink driving convictions on your record from the last 10 years.
  • Higher alcohol levels and repeat offences result in more severe sentences. The court wants to deter dangerous behaviour.

The sentencing guidance is set out as follows:

Level of alcohol Starting point Range Disqualification Disqual. 2nd offence in 10 years
Breath (μg) Blood (mg) Urine (mg)
120 – 150 and above 276 – 345 and above 367 – 459 and above 12 weeks’ custody High level community order – 26 weeks custody 29 – 36 months (Extend if imposing immediate custody) 36 – 60 months
90 – 119 207 – 275 275 – 366 Medium level community order Low level community order – High level community order 23 – 28 months 36 – 52 months
60 – 89 138 – 206 184 – 274 Band C Fine Band C Fine – Low level community order 17 – 22 months 36 – 46 months
36 – 59 81 – 137 108 – 183 Band C Fine Band B Fine – Band C Fine 12 – 16 months 36 – 40 months

Any other mitigating or aggravating factors can also have an impact upon the sentence imposed.

How Would Defending A Drink Driving Charge Impact Sentence?

It is a misconception that entering a not-guilty plea may lead to the court imposing a harsher sentence on you. The court is legally required to impose a sentence which is reflective of the offence committed regardless of whether the Defendant challenges the case or not.

Whilst the court cannot increase the sentence against you if you enter a not guilty plea, it is likely that you will not benefit from ‘full credit’. Credit is given to a Defendant who enters a guilty plea at an early stage in proceedings.

The longer the case proceeds the less credit a Defendant will be given. In cases of drink driving, credit will not reduce the length of any disqualification imposed but may reduce the size of any fine, level of community order or even length of custodial sentence in more serious cases.

Summary 

There are different defences you can use to fight a drink driving charge. Some defences are straightforward, like claiming you were not actually driving the vehicle.

But other defences can be more complex and require looking closely at the evidence or circumstances of your case. These may need additional proof like an expert report or witness testimony.

Defending against a drink driving charge at trial can be complicated. It’s very important to talk to a legal expert if you want to fight the charge. They can review your case and help decide the best defence strategy to proceed with.

Don’t try to mount your own defence without experienced legal help. A lawyer can explain your options and build the strongest case for you if you want to plead not guilty to the drink driving offence.

How Can We Help?

At Caddick Davies Solicitors, we have a team of specialist motor defence lawyers who specialise in representing motorists at risk of a disqualification, penalty points or other motoring offence. From the simplest to the most complex of drink and drug drive cases, we are here to help. We start every enquiry with an informal discussion to get a clear understanding of your circumstances and are here to answer any questions that you may have in confidence.

We will talk you through the offence you have been charged with and we will advise on your prospects of success at court. You can contact our office for a free consultation on 0151 944 4967.

 

Any other mitigating or aggravating factors can also have an impact upon the sentence imposed.

How Would Defending A Drink Driving Charge Impact Sentence?

It is a misconception that entering a not guilty plea may lead to the court imposing a harsher sentence on you. The court is legally required to impose a sentence which is reflective of the offence committed regardless of whether the Defendant challenges the case or not.

Whilst the court cannot increase the sentence against you if you enter a not guilty plea, it is likely that you will not benefit from ‘full credit’. Credit is given to a Defendant who enters a guilty plea at an early stage in proceedings.

The longer the case proceeds the less credit a Defendant will be given. In cases of drink driving, credit will not reduce the length of any disqualification imposed but may reduce the size of any fine, level of community order or even length of custodial sentence in more serious cases.

Summary

There are different defences you can use to fight a drink driving charge. Some defences are straightforward, like claiming you were not actually driving the vehicle.

But other defences can be more complex and require looking closely at the evidence or circumstances of your case. These may need additional proof like an expert report or witness testimony.

Defending against a drink driving charge at trial can be complicated. It’s very important to talk to a legal expert if you want to fight the charge. They can review your case and help decide the best defence strategy to proceed with.

Don’t try to mount your own defence without experienced legal help. A lawyer can explain your options and build the strongest case for you if you want to plead not guilty to the drink driving offence.

How Can We Help?

At Caddick Davies Solicitors, we have a team of specialist motor defence lawyers that specialise in representing motorists at risk of a disqualification or penalty points. From the simplest to the most complex of cases, we are here to help. We start every enquiry with an informal discussion to get a clear understanding of your circumstances and are here to answer any questions that you may have in confidence.

We will talk you through the offence you have been charged with and we will advise on your prospects of success at court.You can contact our office for a free consultation on 0151 944 4967.

Motoring Lawyer at Caddick Davies Solicitors
Caddick Davies is recognised as one of England and Wales’ leading motoring law firms, offering specialist Speeding Solicitors, Drink Driving Solicitors & Dangerous Driving Solicitors.We provide advice and representation on all motoring offences including speeding, the avoidance of disqualification on penalty points or “totting up” (exceptional hardship), driving without due care and attention (careless driving), dangerous driving, drink driving, as well as a range of services related to medical revocation of a driving licence.
Neil Davies

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