Second Drink Driving Offence Solicitors

Is this your second drink driving offence? 

Here's everything you need to know

---

A drink driving offence is committed when a person drives with a blood alcohol content of 81mg and above. Most people charged with drink driving are stopped by the police or involved in a car accident. You may then be breathalysed and taken to police custody (or hospital). If you refuse to provide a sample at the roadside you will be arrested. 

Check out our blog on repeat offences

 

Drink Driving Repeat Offence Penalty;

• A minimum three year ban
• The risk of immediate custody (prison)
• A high risk offender 
• A DVLA medical 
• Community Service 

The magistrates will sentence each person on a case-by-case basis. They will consider all of the above penalties when sentencing you for a second offence. They will also take into account any aggravating features or mitigating circumstances.

Will I go to prison for a second drink driving offence?

The court will treat each previous conviction of the offender as an aggravating factor (assuming it is similar in nature and within 10 years). The Magistrates' Court Sentencing Guidelines make it clear that a relevant recent conviction will result in a substantial upward adjustment to sentence. 

Evidence of a previous drink driving conviction will be given after a defendant has pleaded guilty or has been convicted. The prosecution will provide the court with a list of all previous convictions, even those outside of 10 years. The magistrates should be informed of any previous motoring offence which is spent under the Rehabilitation of Offenders Act 1974. You can read more about spent convictions here. Most motoring offences are spent after five years. 

Bad Character 

Remember - the only way the court will know about your previous drink driving conviction is if you plead guilty (in which case your previous convictions are revealed to the magistrates). So what happens if you plead not guilty? In certain circumstances, evidence of a person’s previous convictions may be admitted in a criminal trial (this is known as 'bad character' evidence). The purpose of bad character is to give the court a full picture of your offending history - and whether you've committed similar offences before. The logic being that if you've done it before you're more likely to do it again. Bad character evidence can play an important role in criminal trials. It is defined in section 99 of the Criminal Justice Act 2003 as “evidence of or a disposition towards misconduct”. The prosecution may want the magistrates to know about your previous convictions as evidence that you have a propensity to commit these kind of offences; in other words, you make a habit of drink driving. Bad character evidence is not automatic and there may be circumstances where a previous drink driving conviction will not amount to bad character evidence. If you'd like to ask about your previous convictions, please get in touch on 01514228020. 

Prison is every person's worst nightmare. There are around 80,000 people in prison across the United Kingdom. Around 9,200 of these prisoners are serving life sentences. Believe it or not, the UK has the most people serving life sentences than any other country in Europe. This would suggest that magistrates and judges are not afraid to hand out prison sentences when are where appropriate. 

Just because you have been charged with a motoring offence does not mean that you cannot go to jail. According to the Magistrates' Court Sentencing Guidelines, you could go to prison for 12 weeks if;

• You provide a breath reading of 120ug or more
• You provide a blood reading of 276mg or more
• You provide a urine reading of 367mg or more
• You have a previous drink driving, drug driving or failing to provide conviction in the last 10 years
• You caused injury or death to another person
• You were disqualified from driving

This is not an exhaustive list. The court will take into account all of the circumstances surrounding your case. 

Suspended prison sentence for drink driving 

In simple terms, a suspended prison sentence is a delayed prison sentence. The court has imposed a period of imprisonment for an offence you have committed but they're willing to give you a second chance. So long as you stay out of trouble for the next 12 months (or whatever timeframe the court specify), you will not go to prison. If you breach your suspended sentence by committing further offences the court would usually impose the original prison sentence. This will apply even if the offence that triggers the suspended sentence is dissimilar to the original offence.

A suspended prison sentence is a better alternative to immediate custody in drink driving cases. There will always be cases where the risk of custody is so high that trying to persuade the court otherwise is pointless. Instead, a more sensible approach is to invite the court to impose a suspended prison sentence. If they agree, you will not go to prison. 

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. Any solicitor needs to understand and reference the sentencing guidelines, as well as any aggravating and mitigating factors.

Mitigation to avoid a prison sentence 

Download our template character references to bring to court

How do I avoid the three year ban? 

Most solicitors will tell you that the three year ban is mandatory. This isn't entirely true. There are three ways to avoid a three year ban;

1. Defend the case
2. Negotiate a reduced charge with the CPS
3. Argue a special reason

Defend the case

There are probably in excess of 100 different defences to a drink driving case (some of which will no doubt apply in your case). We have discussed some of the best drink driving defences of 2022 here. You have a fundamental human right to check the evidence against you and challenge the allegation - no one can take this right away from you. This means that you can plead not guilty at court, even if you're over the limit. You would normally win a drink driving case if;

• The CPS fail to provide the correct evidence in time
• The documents provided are inaccurate/incorrect
• The court accept that you have a defence to the allegation
• The police cannot prove the accuracy of the alcohol testing procedure 
• A prosecution witness fails to attend court (this includes a police officer)

 

The benefit in pleading not guilty is that you force the CPS to supply the evidence. This could take 3 - 6 months but you can continue to drive during this time. Even if you're later found guilty the court cannot increase the driving disqualification. 

To read more about how to get off a drink driving charge, read our blog. 

Negotiate with the CPS - securing a 'plea bargain'

A plea bargain or 'basis of plea' is the practice of negotiating an agreement between the parties whereby the defendant pleads guilty to a lesser offence (or on different facts). This technique can speed up court proceedings and avoid lengthy, unnecessary (and costly) trials. 

Have you heard of being drunk in charge of a motor vehicle? 

Drink in charge is 'one step down' from drink driving. It occurs where a person is drunk in control of a motor vehicle, but not necessarily driving. It is less serious than drink driving and can carry penalty points. The interesting thing about drunk in charge is that it will not trigger the mandatory minimum three year driving ban. One option we have is to invite the CPS to accept a guilty plea to this lesser offence. Even if the police saw you driving it does not mean the CPS wouldn't consider the basis. Let me give you an example:

Case Example

Raise a special reason

The final way to avoid a three year ban is to argue a special reason. There are only a handful of special reasons arguments that apply in drink driving cases. You can still argue special reasons even if you have a previous drink driving conviction. A special reason will either remove the ban completely, or substantially reduce it. We have a dedicated special reasons page which you can view here. To summarise, the four most common special reasons arguments are;

• Spiked Drinks
• Short Distance Driven
• Driving in an Emergency 
• Acid Reflux

To learn more about special reasons, or to speak to a specialist solicitor, get in touch on the details below.

Can I get the drink driving rehabilitation course (DDRC) for a second time?

The Driving Standards Agency (DSA) are responsible for setting the national standard for delivery of The Drink Driving Rehabilitation Scheme (DDRS) courses.

The drink drive rehabilitation course is offered at the discretion of the magistrates, and can be offered twice in 10 years. You can still be offered the course after a trial. If you've only recently taken the course, the magistrates may be less likely to offer it a second time. If your previous conviction was many years ago you are more likely to be offered it a second time. This is because the DDRC is constantly changing and being updated. The course may be very different now than it was five years' ago. 

Ultimately the decision rests with the magistrates, and whether your solicitor can do a good enough job of persuading them to give it to you.  

Why will I have to speak to the Probation Service? 

Any person at risk of community service or prison will need to speak to a probation officer before the magistrates sentence you. If you have a previous drink driving conviction then you are can expect community service at a minimum (or worse). The probation officer will prepare a 'pre-sentence' report based on your discussion. This report will make certain recommendations to the court regarding your sentence. 

What is a pre-sentence report?

A pre-sentence report is an assessment of your behaviour and the risk you present to others. A pre-sentence report usually contains;

• a summary of the facts of the case
• an expert risk and needs assessment about the individual circumstances of the offender and the offence(s) committed
• an analysis of the sentencing options, with an independent sentence proposal
• additional information not presented to the court such as information about the offender and their view of the offence(s) which is obtained by interviewing the offender or through the liaison with other agencies

You can read more about pre-sentence reports on .GOV website. 

PSR’s provide the court with a greater understanding of the background and the context of the offending behaviour, rather than just the details of the offence. However, they are not binding and the court can ignore probation's recommendations. Interestingly, probation are not allowed to recommend custody. 

Questions we'll be answering soon;

Will I get community service for a second drink driving offence?

What is the High Risk Offenders Scheme?

Do I have a defence to drink driving? 

 

What our clients say...