Drink Driving/Driving With Excess Alcohol/Being ‘In Charge’

Drink Driving is a serious offence. The legislation governing Drink Driving is complex and highly technical, which is one of the reasons why it is recommended that you instruct an expert road traffic law barrister. Simon Collingham is a specialist road traffic barrister. He will carefully assess the evidence and then provide you with a comprehensive analysis of the case against you. 

Depending on the facts, there may be several possible challenges to the evidence, for example: Challenging the reliability of the breathalyser machine; the accuracy of the procedure, were you warned that a failure to provide a specimen would render you liable to prosecution; the lawfulness of the breathalyser request and arrest; whether you were actually ‘driving’ or ‘attempting to drive’; were you suffering from a medical condition that resulted in you refusing or failing to provide a specimen; had you consumed alcohol after you had driven and that at the time of the alleged driving you were not over the limit.

A conviction for Drink Driving or Driving whilst being Unfit through Drink carries a mandatory minimum ban for a period of 12 months, a potential maximum six months imprisonment, community punishment or an unlimited fine. The length of any Disqualification and type of Sentence are graded depending on the amount of alcohol in your system. 

The legal drink driving alcohol limit is 35 milligrams per 100 millilitres of alcohol in breath. 

Limits also exist in urine and blood, when depending on the circumstances (set out below), you may be required to take a blood or urine test.

Alternatively, you may have been charged with the offence of ‘being in charge of a motor vehicle’ whilst being over the specified limit. This offence normally occurs when you get caught sat in your car with the keys, whilst being over the specified drink driving limit. One example which frequently arises, is being found asleep in your car, which depending on the circumstances, may give rise to a charge of ‘being drunk in charge of a motor vehicle. Every case is fact specific, but if you can prove that despite being over the prescribed alcohol limit you had no intention, or there was no likelihood of you driving, then this might provide you with a defence. 

This offence carries at least 10 Penalty Points and the power to impose a discretionary ban.

Ultimately, a conviction for any Drink Driving related offence, could result in the loss of your Drivers Licence, loss of employment, a significant increase in your insurance premiums and even the prospect of having difficulty travelling to certain countries, such as the USA.  

Breath limits must be recorded using a Government approved device; the Preliminary Roadside testing device is not an approved device, it is effectively a screening device, used by the police to help them decide whether or not you may be over the prescribed drink driving limit, and if so, arrested and taken to the police station to complete an evidential breath test.

Only a police officer can request a Preliminary Roadside breath test; there is no requirement that the officer has to be in uniform to require a Preliminary Roadside breath test but the officer does have to be in uniform to administer it unless the request is made following a road traffic accident. 

Requests for a Preliminary Roadside breath test can only be made, when a police officer has reasonable cause to suspect that you have committed, or are currently committing a moving traffic offence; having been stopped, an officer has reasonable cause to suspect that the person driving/attempting to drive/in charge of the vehicle has consumed alcohol; or, the police officer has reasonable cause to believe that you were the person driving/attempting to drive/in charge of a motor vehicle which was involved in an accident.

The police are however, entitled to randomly stop your car, but they cannot simply stop you at any time and insist on a breath test, unless one of the cases described above becomes applicable.

Before giving a roadside breath sample, the officer should give you the option to provide or not. You don’t have to provide a breath sample if you do not want to, but if you refuse or fail to provide the roadside request you commit an offence and may be arrested and prosecuted. However, you may have a valid reason, a Reasonable Excuse, for refusing or failing to provide, for example, you may be able to show that you had a problem or difficulty breathing. Where a valid reason exists, this may provide you with a defence.

If you provide a positive test, or you fail or refuse to provide a sample, you may be arrested and taken to a police station, where you will usually be asked to provide two specimens of breath for analysis on an approved device.

At the Police Station the lower of the two readings will be relied upon and the higher reading ignored. If the lower reading is in excess of the prescribed limit you will have committed an offence and will be charged.

You no longer have the right to choose whether to give a sample of urine or blood instead, but there may be circumstances under which the police will require you to provide either a urine or blood sample; the analysis of these samples will subsequently be used evidentially to prove the level of alcohol. The following circumstances may give rise to you being required to provide a specimen of urine or blood, as an alternative to a breath specimen:

• The police officer has reasonable cause to believe that, for medical reasons, a breath sample cannot or should not be taken;
• At the time there is no reliable approved device for taking breath samples available or it is not practicable to use that device;
• The officer has reasonable cause to believe that the device has not produced a reliable indication of the level of alcohol;
• The officer, through a preliminary test, has reasonable cause to believe you have taken drugs;
• The police officer has been advised by a doctor or other medical practitioner that your condition might be due to drugs being taken.

Urine samples may be obtained, with your consent, from a Police Officer, Doctor or Health Care Practitioner.

Blood samples however, may only be obtained, with your consent, by a Doctor or Health Care Practitioner.

If you Fail or Refuse to provide any of the samples, without a Reasonable Excuse, this is also an offence for which you could be punished and disqualified from driving. 

Examples which may be accepted as being a Reasonable Excuse, could include, that you were suffering from a medical condition which prevented you from giving enough breath for the breathalyser machine to give a reading, or you had a needle phobia, which is why you would not give a specimen of blood. If this is the case, you should inform the officer as soon as possible. You cannot use the excuse of ‘being too drunk to provide a sample’, as a reasonable excuse.

Even if you are guilty of drunk driving, there may be Special Reasons, mitigating circumstances, that the court ought to take into account, when considering whether or not you should be disqualified.