What you need to know about drink driving in the UK

By MAJ Law on 21 December 2020

Being stopped for drink driving can feel like game over, especially if you’ve given an over the limit reading and have been charged (or are facing charges). You might now be waiting for a court date thinking about how long your ban is going to be.

But being stopped, tested or even charged with drink driving isn’t necessarily the end of it, there’s a long way between charged and guilty.

At M.A.J. Law we regularly win cases because of technical errors or mistakes made by the police or CPS that clients wouldn’t have known about without the help of a specialist drink driving solicitor.

M.A.J Law offer free initial advice to anyone charged with drink driving. We can explain your options in detail from the outset.

What do the police have to prove?

Under section 5(1)(a) of the Road Traffic Act 1988, drink driving is a strict liability issue, which just means the prosecution doesn’t have to show you intended to drive while over the limit, or even that your driving was impaired.

All they have to show is:

You were over the limit
Driving or attempting to drive
On a public road or other public space

In England and Wales the driving limit for alcohol is 35 micrograms of alcohol in 100ml of breath, 80 milligrams in 100ml of blood and 107 milligrams in 100ml of urine.

That blood figure hasn’t changed since Parliament set a legal limit for alcohol consumption while driving in 1967, after drink driving was made an offence in 1925.

Only Scotland has made any changes to its alcohol limits, cutting it down to 50mg in December 2014.

Being a strict liability offence, you might think drink driving is an easy case to prove and you haven’t got much chance in your case, that’s not always the case.

Because drink driving offences aren’t simple and there are loads of technicalities and procedural red tape police and the CPS have to follow. And all this creates opportunities to challenge your case every step of the way, which most people don’t consider because, not surprisingly, authorities don’t make it obvious.

You’ve also got the issue of whether you were driving on public land. Most people assume the issue here is ownership, so think they can drive on a pub car park or shared drive way. But the actual test here is access.

If the road has public access, it’s a public space and you can be prosecuted.

Our guide to drink driving on private land goes into more detail on that specific subject.

You’ve also got timing to consider. Your liver clears about one unit of alcohol per hour. Nothing speeds this up. Coffee, cold showers, sleep. It’s all an old wife’s tail and doesn’t “sober you up”.

Finish 11 units at 11:30pm and it’s entirely possible you’ll still be over the limit at the next day’s lunch time. Being charged having drunk the night before is one of the most common problems people come to us with and had no idea they were at risk.

We’ve got another guide on driving the morning after that goes into more detail.

How long will you lose your licence if you’re guilty of drunk driving?

A mandatory driving ban of at least 12 months is the minimum you can get if you’re convicted of drink driving (this goes up to three years minimum if you’ve been convicted of drink driving, drug driving or failing to provide within 10 years before your latest conviction).

How much alcohol you had in your system when you were driving is what increases the length of your ban.

Breath	Blood	Urine	Ban Length
36-59	81-137	108-183	12-16 months
60-89	138-206	184-274	17-22 months
90-119	207-275	275-366	23-28 months
120-150+	276-345	367-459	29-36 months

Courts can also give you an unlimited fine, community service. In the most serious cases (involving accidents or dangerous driving) you could end up in prison.

If you’re facing a repeat allegation, there are ways to handle it - like negotiating with the prosecution over the charge - which we cover fully in our second drink offence blog.

“It is important to be realistic in some drink driving cases. Trying to persuade the magistrates to impose a small fine when the risk of prison is so high can discredit you and your representative. Ultimately it can backfire.”

Conor Johnstone, Senior Solicitor

Can the rehabilitation course shorten your drink driving ban?

It can, up to 25% if it’s offered by magistrates as an option and you finish it in time. It can cost up to £250 to do the course, offered at the discretion of the court (usually no more than twice in a 10 year period) and you can still be offered it after trial.

If you’ve recently been on the course and are back in court a short time later, it’s not likely to be an option again.

Inside the breath test room

Because alcohol starts breaking down the second it’s in your system, time is critical when it comes to proving drink driving cases, which the police know.

Which is why they try and get you to an evidential machine as quick as they can.

Usually you’ll be checked in at the custody desk with the custody sergeant, who runs a short risk assessment about your safety and any medication they need to be aware of while you’re in custody.

Some of these questions can feel extremely personal, so just go with it.

You’ll then be taken through to a custody suite that’s often called the breath test room.

Here you’ll be asked for two evidential specimens of breath (which will be used in evidence against) with the lower of the two readings used.

Often you won’t speak to a solicitor before going through this, but you can still request one. Many of these machines are older than they look (a lot of evidential devices still used today were approved in the 80s and haven’t modernised much).

They require a lot of breath and you need to blow hard. So we’ve seen lots of people struggle because they’ve got reduced lung capacity or just couldn’t manage it.

Our drink driving high readings blog goes into more detail about this stage and where your sentencing threshold sits.

What if you gave blood or urine?

Section 7(3) of the Road Traffic Act 1988 restricts blood specimens being taken to only:

A breath machine gives an unreliable reading
A medical reason stops you giving breath
There’s no breath machine available

So you don’t have an automatic right to give a blood specimen over other types. Any blood taken has to be taken by a doctor, nurse or other registered healthcare professional.

Your sample is then split into two. One half is kept and used by the police, the other is given to you to be independently analysed. Take this opportunity for an independent analysis. Because different labs return different results.

Until these results come back you won’t be charged, this can take between eight weeks to six months (these cases take a while) and you should be able to keep driving while you’re waiting, unless the police have told you otherwise.

As a last resort, you could be told to provide a urine sample.

This is mostly avoided because it’s not as reliable as other samples so police avoid it where they can.

You’ve got about one hour to provide two specimens.

The first is thrown away (this has to be done by an officer, you can’t just pour it down the toilet) to clear your bladder. The second specimen is what’s checked for alcohol.

In every sample there is a strict procedure to follow, and mistakes to be made that we can use to your advantage. Our guide to how reliable drink driving test results really are can help explain more.

If no sample was taken, it raises questions about what can actually be proven. We’ve written more about that in our “caught drink driving without being breathalysed” article.

How much does the MGDD A document matter?

When you were in the breath test room, you might remember an officer working through a pretty thick booklet. You’d have gone through a long list of box ticking questions before blowing into a machine.

If this didn’t happen, there’s a defence there you wouldn’t know about without a specialist drink driving solicitor.

The MGDD A is a hefty document (about 20-25 pages long). It’s issued at every police station and walks officers through the procedure of taking a sample of breath from someone in custody.

It also tells them the legal requirements for taking a sample, and the warnings they have to give you before.

“What you’re being asked to do at the police station is incriminate yourself. That’s why the law puts extra safe guards into drink driving cases. If these aren’t followed, any reading shouldn’t be used to convict you.”

Conor Johnstone, Senior Solicitor

Section A12 is the most important part of the MGDD A. It’s a statutory point requiring an officer to explain you don’t have to give a breath sample if you don’t want to, or can’t.

You can’t be forced to give a sample under any condition, because you have the right not to incriminate yourself (it’s the same reason you’re allowed to answer “no comment” at the interview stage).

Officers have to explain this right to you clearly and accurately, plus tell you what will happen if you do refuse.

You’d be surprised how often this stage isn’t made clear and you’d be forgiven for thinking you face an instant ban, or a longer time in custody, or even immediate court hearing if you don’t give a specimen.

Any move away from what the document says exactly is a chance to challenge your case.

One thing that’s reassuring for you during all this is that nearly everything that happens in this breath test room is recorded, either on CCTV or body worn video, and we can request to see the footage and watch what officers did for ourselves.

Everything in your case relies on police following the right procedure, and our blog on police procedure errors in drink driving cases gives you more information.

What if you refused or couldn’t provide a specimen?

Failing to provide a specimen has a 12 month mandatory disqualification. Refusing to provide and being guilty of failing to provide are not the same thing though.

You’ll be guilty only if you didn’t have a reasonable excuse for not giving a sample. “Reasonable excuse” is also pretty broad, covering things like:

Physical injury
Asthma
Chronic obstructive pulmonary disease
Long COVID
Panic attacks
Anxiety
Depression
Learning difficulties

All these have been used before, and been accepted, as reasonable excuses. It’s up to the prosecution to disprove any claims.

It’s also possible the device was defective. If you tried to blow and the officer says you’re not blowing hard enough, the mouthpiece could be blocked or defective.

Mouthpieces are routinely thrown away after a failed attempt, so there’s no way for the prosecution to prove it was working.

You can read more about failing to provide a specimen in our other blog.

If any of this sounds familiar from your experience, call 0151 422 8020 and talk to us about your case. All initial consultations are completely free with no obligation.

What happens after your first court hearing?

Your first appearance will be in a Magistrates’ Court to enter a plea.

The charge will be read to you, you’ll answer guilty or not guilty, simple.

If you plead guilty, sentencing usually happens straight away and any disqualification starts there and then (so if you’re planning on pleading guilty make sure you arrange transport home because you won’t be able to drive home from court).

You might have heard that you get credit for entering an early guilty plea. You can, but it’s usually not worth as much as you’d think in drink driving cases.

This is because it’s applied to the punitive part of your sentence - your fine, unpaid work - rather than your disqualification, which is mandatory and can’t be negotiated.

If you plead guilty at the first chance, you might save around £100 on your fine, but you’ll still be banned for a minimum 12 months.

If you plead not guilty, your case will be adjourned and a date will be set for trial (usually three to six months later, but can be longer). You can usually keep driving in the meantime, and there’s plenty of work we can do here to stop your case going ahead at all.

What you need to do before deciding how to plead is to get a specialist drink driving solicitor on your team to review the evidence - if any - against you.

Material from the prosecution is put on a portal called the “Common Platform”, including initial details of the prosecution’s case like

A case summary
Witness statements
Procedural forms

Make sure you’ve had a solicitor read this before you plead so you’re at least making an informed decision on your case.

You can get more information about what to expect about the day - it’s less like you’ll see on TV - from our being caught drink driving for the first time blog.

Can you be cautioned instead of convicted?

Possibly. Sometimes a formal warning will be given instead of a charge. This can make a huge difference if your job depends on your record.

Getting a caution is something we can help with by negotiating with the police pre-charge, or persuading a prosecutor to refer the case back for a caution is it’s a minor incident and not in the public interest to prosecute you in court.

It’s not going to work in every case and, usually, you’ll need a solicitor to manage the process for you.

Also, remember that you’re allowed to drive until you’re officially convicted and you don’t have to tell any insurers or regulators about the situation until you’re convicted - assuming it gets that far.

A lot of people we work with are surprised by this but, so we’ve covered it as a separate topic in this can I still drive after being caught drink driving blog.

What defences work for drink driving cases?

Being over the limit and being guilty aren’t the same. There’s plenty of evidential and technical wiggle room between the two.

“It’s not necessarily the act of driving that makes you guilty, and it’s not necessarily the sample of breath that puts you over the limit. It’s the bits in between. The roadside, the check-in, what actually happened in the breath test room. Day to day, that’s what makes the biggest difference in a case like this.”

Conor Johnstone, Senior Solicitor

Disclosure

The prosecution has to provide the evidence it plans to use, plus a schedule on unused material, usually within 28 days of a not guilty plea, according to the Criminal Procedure and Investigations Act 1996.

“Unused material” is anything police gather but isn’t being used. Useful documents sometimes fall into this so if deadlines get missed for filing, courts may not allow late evidence, so you case can’t go ahead potentially. Your defence solicitor needs to chase this though.

Witnesses

Training days, holidays, court date clashes or admin failures can all mean police witnesses aren’t available on the day of your case. With no witnesses available it can be argued for lack of evidence and your case could be dropped.

Evidentiary machines

Any device used to gather evidence to be used in court has to be approved, properly maintained and calibrated. Most courts just assume they work. But we can work to prove this isn’t the case and that it’s made any evidential results unreliable.

Post driving consumption

Sometimes it might be the case that someone has reported you for drink driving (whether you were or not) and police have come to your house.

It’s possible in this situation that you weren’t over the limit behind the wheel but have had a few drinks since you got home, which have pushed you over the limit.

We can bring in experts to work backwards from what you may have drunk at the time of driving to prove you were actually under the limit while driving.

Unlawful stop or arrest

Breath tests taken at the side of road aren’t used as evidence, they’re indicators and used as a means to arrest you so you can be taken to a police station for an evidentiary sample to be taken.

If this initial roadside procedure was flawed, we can question the lawfulness of anything that happened afterwards.

There is plenty of opportunity when it comes to defending drink driving charges and we’ve written about how to get off a drink driving charge and how to get drink driving charges dropped before now.

Using special reasons when your case can’t be won

There’s a misconception in drink driving cases that “special reasons” can be used in your defence or as mitigation against your offence. Neither of this is true.

It’s not a defence because you have to plead guilty for special reasons to be considered in the first place. And it’s not mitigation because it relates to the offence, rather than your circumstances.

When it’s used, it’s an argument that the level of blame against you for drink driving is so low that you shouldn’t be disqualified, or your ban should be significantly reduced.

The reason this is such a tough area is that the burden falls on you and you’ll almost always need evidence on your side.

Of the reasons that do work, these tend to be the most often successful:

Your drink was spiked or you didn’t know your drink had any alcohol in it
You only drove a very short distance (Chatters v Burke 1986)
Acid reflux meant the machine measured stomach gas not air in your lungs (this is very hard to prove)
It was an emergency and you genuinely had no choice but to drive (if it was a matter of life and death)

Special reasons can always be raised later, instead get a drink driving solicitor involved to manage your case early on.

What if you weren’t driving?

In charge of a vehicle while over the limit is a separate offence under section 5(1)(b) of the 1988 Road Traffic Act (we told you drink driving cases are complicated).

Unlike drink driving you won’t be automatically banned from driving if you’re convicted. It’s way more likely you’ll get points on your licence (usually 10), but you never know which way cases are going to go.

“Don’t be fooled into thinking you will always get 10 points. The Court can still hand you a 12 month driving ban.”

Conor Johnstone

Within Section 5(2) you have a statutory defence to argue that there was no likelihood that you were going to drive while over the limit, even if you were found in the car.

You can give your own evidence in the witness box. Other things can work in your favour too, for example if you’d messaged someone to come and get you and were just sat in your car waiting, or if you’d booked an Uber or other taxi to come and get you.

We’ll also likely need to get some expert evidence so magistrates know when your alcohol level would have dropped below the limit (in a case where you may have thought you’d sleep it off and drive in the morning).

That’s not to say being found asleep in your car while over the limit is a guaranteed result either way.

Kelso v Brown involved a defendant found in a deep sleep in the front passenger seat at 4.50am with the key in the ignition and the heater running. Even in that case he appealed successfully.

This can go in your favour because being asleep goes against any suggestion you were about to drive, but a lot depends on which seat you’re found in, where your keys where and whether or not the engine was running.

Our sleeping in your vehicle and drunk in charge allegations pages explain these issues in more detail.

A conviction costs you a lot longer than a ban

Your driving ban is usually only the start of your penalty for drink driving, the next part is dealing with your criminal record (which follows you a lot longer).

If you have a job that’s regulated - like if you’re a doctor - you have a duty to disclose your situation when you’re charged, with a conviction potentially putting your career at risk.

Similarly if you’re in the armed forces, you could face other consequences like dismissal or at least a demotion. Which we talk about in our caught driving in the military guide.

Then you’ve got the cost of your insurance, which is highly likely to go up (and by quite a lot) which a drunk driving conviction on your record. You might not even be given a quote by some insurers who’ll see you as too risky.

Why do so many plead guilty to drink driving?

If you consider the process of drink driving cases when it comes to investigations and court, it’s actually not that surprising many people plead guilty without considering the other options.

You get a court date before the prosecution has presented any evidence, you attend a hearing where you’re supposed to enter a plea straight away and the system is promoted as being lenient on people who save courts time and money by pleading guilty.

So it’s not that surprising many people do it, even when they could have a case if they had the right drink driving defence solicitor with them.

This is what we’re here for.

Call M.A.J. Law on 0151 422 8020, 7 days a week. Initial advice is completely free and you’re not committing to anything by talking to us. At the very least we could give you a better idea of your chances and provide a recommendation for you.

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.