Motor Law Matters - Drink Driving / In Charge

The legal limit is 35 microgrammes of alchol per 100 millilitres of breath - or 80 in blood.

 

If you drive or attempt to drive with excess of this limit in your system, you could be charged with driving a motor vehicle with excess alcohol.  Even if you were not actually driving the vehicle, you could still be 'in charge,' of it - which is also an offence.  Links to the sentencing guidelines for both offences are at the bottom of the page.

 

There are a number of areas where a drink drive charge can be challenged:

 

  • ​Is the reading reliable?  There are a number of technical areas where a drink drive breath reading can be challeged.
  • Was the intoximeter working correctly?
  • Did the Officers follow the correct procedure?
  • Was the suspect asked the relevant questions?
  • Was any specimen of blood contaminated - or correctly dealt with?
  • Post Driving Alcohol Consumption

 

If you are convicted of drink driving (or attempting to drive), you will face an obligatory (meaning the Magistrates have no discretion in the matter) disqualification of 12 months.  Indeed, the higher the reading, the higher the period of disqualification.  If you have a previous conviction for drink driving in the preceding 10 years, you will be subject to a minimum period of disqualification for 3 years.  If the reading is very high and you are convicted, you could face a more severe penalty such as a community order or (for very high readings) a period in custody.  If you are convicted of being 'in charge,' whilst under the influence of excess alcohol, the Magistrates might be persuaded to give you 10 points instead of the disqualification.  Of course, once you have reached 12 points, you are at risk of disqualified as a totter in any event.

 

This is a very worrying time.  The loss of your licence can cause all manner of difficulties with work and family arrangements.

 

If you were acting in response to a genuine emergency or drove only to remove yourself from a dangerous situation, you might have a defence to the charge - or be able to run a special reasons argument.

 

It might simply be that you took a misguided decision to drive your vehicle, or that you drove the following day believing that you were no longer 'over the limit.'   

 

Whatever the situation, Coral Fitzgerald has represented many clients who face the potential loss of their licence and the serious consquences that follow.  She can offer you practical and technical advice about this offence, the Court processes and the assistance that she can provide to you.  Call Coral on 07790 356069.  See more in our 'Notable Cases Section - Motoring.'

 

The Sentencing Guidelines are below.  

 

For Driving or Attempting to drive a vehicle the guidelines is as follows:

 

Excess Alcohol (drive/attempt to drive) (Revised 2017)

Road Traffic Act 1988, s.5(1)(a)
Effective from: 24 April 2017

Triable only summarily
Maximum: Unlimited fine and/or 6 months
Offence range: Band B fine – 26 weeks’ custody


Steps 1 and 2 – Determining the offence seriousness

  • Must endorse and disqualify for at least 12 months
  • Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3 years – refer to disqualification guidance and consult your legal adviser for further guidance
  • Must disqualify for at least 3 years if offender has been convicted of a relevant offence in preceding 10 years – consult your legal adviser for further guidance
  • Extend disqualification if imposing immediate custody

If there is a delay in sentencing after conviction, consider interim disqualification

The starting point applies to all offenders irrespective of plea or previous convictions.

Level of alcohol Starting point Range Disqualification

Disqual.

2nd

offence in

10 years –

see note

above

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

Note: when considering the guidance regarding the length of disqualification in the case of a second offence, the period to be imposed in any individual case will depend on an assessment of all the relevant circumstances, including the length of time since the earlier ban was imposed and the gravity of the current offence but disqualification must be for at least three years.

The court should then consider further adjustment for any aggravating or mitigating factors. The following is a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the sentence arrived at so far.

Factors increasing seriousness

Statutory aggravating factors

  • Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
  • Offence committed whilst on bail

Other aggravating factors

  • Failure to comply with current court orders
  • Offence committed on licence or post sentence supervision
  • LGV, HGV, PSV etc
  • Poor road or weather conditions
  • Carrying passengers
  • Driving for hire or reward
  • Evidence of unacceptable standard of driving
  • Involved in accident
  • High level of traffic or pedestrians in the vicinity

Factors reducing seriousness or reflecting personal mitigation

  • No previous convictions or no relevant/recent convictions
  • Genuine emergency established *
  • Spiked drinks *

 

For Being in Charge of a Motor Vehicle the sentencing guideline is as follows:

 

 

Excess Alcohol (in charge) (Revised 2017)

Road Traffic Act 1988, s.5(1)(b)
Effective from: 24 April 2017

Triable only summarily
Maximum: Level 4 fine and/ or 3 months
Offence range: Band A fine – 6 weeks’ custody

 


Steps 1 and 2 – Determining the offence seriousness

• Must endorse and may disqualify. If no disqualification impose 10 points
 Extend any disqualification if imposing immediate custody

The starting point applies to all offenders irrespective of plea or previous convictions.

Level of alcohol Starting point Range Disqualification/Points
Breath (μg) Blood (mg) Urine (mg)      
120–150 and above 276–345 and above 367–459 and above Medium level community order Low level community order – 6 weeks’ custody

Disqualify 6 – 12

months

(Extend if imposing

immediate custody)

90 –119 207– 275 275–366 Band C fine Band C Fine – Medium level community order

Consider disqualification

up to 6 months OR 10

points

60 – 89 138– 206 184-274 Band B fine Band B fine – Band C fine

Consider disqualification    

 OR 10 points

36-59 81 – 137 108 –183 Band B fine           Band A fine – Band B fine 10 points

 

The court should then consider further adjustment for any aggravating or mitigating factors. The following is a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the sentence arrived at so far.

Factors increasing seriousness

Statutory aggravating factors

  • Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
  • Offence committed whilst on bail

Other aggravating factors

  • Failure to comply with current court orders
  • Offence committed on licence or post sentence supervision
  • In charge of LGV, HGV, PSV etc
  • High likelihood of driving
  • Offering to drive for hire or reward

Factors reducing seriousness or reflecting personal mitigation

  • No previous convictions or no relevant/recent convictions
  • Low likelihood of driving
  • Spiked drinks *
  • Remorse
  • Good character and/or exemplary conduct
  • Serious medical condition requiring urgent, intensive or long-term treatment
  • Age and/or lack of maturity where it affects the responsibility of the offender
  • Mental disorder or learning disability
  • Sole or primary carer for dependent relatives

*even where not amounting to special reasons

 

 

 

 

 

 

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