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Drink related offences: A General Guide
There are three main types of drink driving offences:
- Driving or attempting to drive a vehicle over the permitted limit of 35mcg/100mg in breath or whilst unfit through drink or drugs.
- Being in charge of a vehicle over the permitted limit.
- Failing to provide a roadside test or an evidential specimen at the police station.
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a) The legal limit in breath is 35 micrograms of alcohol per 100 ml of breath although you may not be prosecuted if your reading is under 40mcg. The limit for blood is 80mcg of alcohol per 100ml of blood.
b) Legal Aid is now means tested and is difficult to get in straightforward cases. Where there is a potential defence or technical arguments of Special Reasons legal aid may be available.
c) A successful defence will avoid any sentence including disqualification. After conviction, a Special Reasons hearing or Exceptional Hardship Argument (see below) can usually prevent disqualification or may reduce the sentence.
1. DRINK DRIVING:
For any offence of driving or attempting to drive while over the prescribed limit, there is a mandatory minimum sentence of 1 year's disqualification. A second conviction for a drink related matter committed within 10 years of a previous conviction carries a minimum of 3 years mandatory disqualification.
2. BEING IN CHARGE WHILST UNFIT:
A person is deemed to be in charge of, or responsible for, the vehicle in many circumstances but especially if they are in possession of the key to the vehicle. "In charge" is a question of fact and degree depending on the circumstances.
The penalties can still be severe - typically discretionary disqualification or 10 penalty points.
A Defence is available if:
- You provide evidence that you were unlikely to drive whilst over the prescribed limit. A forensic scientist is normally required to provide the necessary calculations to the Court.
SENTENCE FOLLOWING A GUILTY PLEA FOR 'IN CHARGE' OFFENCES:
- Disqualification is discretionary rather than obligatory. You may benefit from legal advice as to what is likely to persuade the Court not to disqualify.
- 10 Penalty points and often a fine is imposed if not disqualified.
- You are credited for an early guilty plea and your sentence should be reduced by a third.
- The Drink Driving Rehabilitation Course should be offered and accepted by you. Once completed your disqualification can be reduced by 25%.
3. FAILURE TO PROVIDE:
For failing to provide an evidential specimen at the police station in a driving matter the starting point for disqualification is 2 years. For failure to provide an evidential specimen in an 'in charge' matter disqualification is discretionary.
4. Time to Trial after a Not Guilty Plea:
If there is good evidence of a procedural irregularity, or you want to utilise the Defence that you would not have driven while over the limit, you must bear in mind the following:
- There will be a trial in about 6 weeks after the plea is entered.
- Success is never guaranteed.
- If you lose you may have to pay increased costs.
- You will lose the discount of one third off your sentence, which is usually given for an early guilty plea, if you are convicted.
- If you are eventually disqualified your ban will start a few weeks later and will be about one third longer.
- Forensic medical evidence is needed.
After a guilty plea for a drinking or in charge case where the statutory defence is not available, Special Reasons can be used to help avoid disqualification or penalty points if there was a Special Reason for use of the vehicle. These reasons typically surround;
- A medical emergency
- Laced drinks
- Only a short distance driven
- Escaping from attack
- Any other circumstances relating to the offence that the court considers are so exceptional that it is only just you avoid disqualification.
An Exceptional Hardship Argument:
An Exceptional Hardship Argument can save you from disqualification when your points total reaches 12 or more in a period of 3 years. This may be invaluable if you receive 10 points for an "in charge" offence. If successful it can only be used on one occasion in the three year period on the same grounds e.g. loss of employment. The Exceptional Hardship Argument consists of highlighting numerous mitigating factors to explain the importance of keeping your licence, for example - your licence is needed for your employment, or you have the driving responsibility for a large family or aging or ill relatives.