A drink driving charge doesn't always mean a drink driving ban
There are a number of different defences that apply to a drink driving charge. Just because you are over the drink driving limit does not mean you are guilty of drink driving. This blog aims to explore the ways in which you can avoid a ban for drink driving.
M.A.J Law offer free initial advice to anyone charged with drink driving. We can explain your options in detail from the outset.
You may know by now that drink driving carries a mandatory driving disqualification. This means that you will be banned if you are convicted of the offence. The only way of avoiding a driving disqualification despite being convicted is by using a special reason. The length of your drink driving ban depends upon your level of alcohol. So, in cases involving higher alcohol levels, the ban is longer. The minimum driving disqualification is 12 months. The court can also impose a fine, community service or custodial sentence. Take a look at the guidelines below.
Drink Driving Sentencing Guidelines
| Breath | Blood | Urine | Disqualification |
| 36 - 59 | 81 - 137 | 108 - 183 | 12 - 16 month |
| 60 - 89 | 138 - 206 | 184 - 274 | 17 - 22 month |
| 90 - 119 | 207 - 275 | 275 - 366 | 23 - 28 month |
| 120 - 150 > | 276 - 345 | 367 - 459 | 29 - 36 month |
If you have a previous drink or drug driving or failing to provide within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%.
FAQ - Sentencing Guidelines
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Can I pay a higher fine to avoid a ban?
No. The fine is means tested and depends upon your income. It is usually around 100-150% of your net-weekly income. If you plead guilty at the first opportunity you would receive maximum credit on the fine. Maximum credit is one-third. Credit does not apply to the length of the disqualification. -
I'm a carer for a family member. Will the court let me keep my licence?
No. There are no provisions allowing a convicted drink driver to keep hold of their licence as a carer. Drink driving has far reaching consequences and will no doubt affect the people close to you. The court cannot take this into account when sentencing. -
My friend got a 6 month ban for the same offence. Can I get a 6 month ban?
No one can receive a 6 month ban for drink driving. The only exception is where the court finds special reasons. If you are convicted of being drunk in charge the court could impose a 6 - 12 month disqualification. This is only in the most serious drunk in charge offences. -
Will I go to prison?
Going to prison for drink driving is unlikely. Only in the most serious circumstances will a person receive a custodial sentence for drink driving. The odds are greater if a person has a relevant previous conviction or if there were serious aggravating factors.
How to get off with drink driving charges
Defend the charge
Under Article 6 of the European Convention on Human Rights everyone has the right to a fair trial. Drink driving cases take place in the Magistrates' Court. You can learn the difference between the criminal courts using the GOV.UK website. The prosecution process generally begins with the police making an arrest. Evidence is then gathered by the police to establish what actually happened and who was involved. In a drink driving case, evidence might include;
- A breath reading
- Witness statements
- An MGDDA document
Once the appropriate evidence has been gathered, the police will decide whether it is sufficient to charge the suspect. In order to charge, the police must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspect. Depending on the type and seriousness of the offence committed, this decision is made by the police or the Crown Prosecution Service (CPS). If a person is charged with drink driving, they are usually released and bailed to attend the Magistrates' Court.
Prosecutors review every case they receive from the police or other investigators. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. This includes what becomes known of the defence case, any further reasonable lines of inquiry that should be pursued, and receipt of any unused material that may undermine the prosecution case or assist the defence case, to the extent that charges should be altered or discontinued or the prosecution should not proceed. If a case is to be stopped, care should be taken when choosing the method of termination, as this can affect the victim’s position under the Victims' Right to Review scheme. Wherever possible, prosecutors should consult the investigator when considering changing the charges or stopping the case. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the CPS. [CPS Code for Crown Prosecutors]
In almost all cases involving a positive alcohol test, the police will charge the suspect. A date will then be set for the suspect to attend court for a first appearance. If you have been given a date to attend court you will no doubt be extremely worried. We have produced a detailed booklet about first hearings in the Magistrates' Court. You can access this here.
There is nothing wrong with pleading not-guilty, even if you're over the legal limit. Every person has the right to challenge an allegation made by the police and to check the evidence against them. Not only can you continue to drive for 2 - 6 months, you will also see the full case file held by the CPS, including any witness statements and the MGDDA document. It is only by checking the evidence can you find fault with it.
Last week we looked at the best drink driving defence of 2022.
Our YouTube channel is regularly updated with content regarding drink driving offences. In our video below, our senior solicitor Conor Johnstone explains how to defend a drink driving charge.
Drink Driving Loopholes
You may be wondering what effect a driving ban and a criminal record will have on you and your family moving forward. You might also be wondering if there are any loopholes or drink driving technicalities that can be used to avoid a conviction or avoid the minimum 12-month driving ban. Below we explore some of the defences that can be raised in drink driving cases.
Intoxyliser Machine
You might dispute the level of alcohol the evidential machine produces at the police station. As mentioned in our above YouTube video, many of the machines the police use are outdated and all are required to be type approved by the home office. They also have to be correctly maintained and calibrated on a regular basis by the police.
The court will assume that the machine will always function correctly and produce a reliable reading. We have proved in the past that a machine was not operating correctly which in turn produced an inaccurate result. As such, we would always investigate whether the reading produced was an accurate estimation of breath-alcohol. If not, it would usually indicate some error with the machine which in turn could result in the case against you being dropped.
Post driving consumption
There may be a scenario the police arrive at someone's house and breathalyse them after they have driven a vehicle. The police may have received a report of drink driving but were not able to pull someone over on the road at that time. If alcohol was consumed after driving and before you provide a sample in police custody, there is a good defence to argue at court. An expert could be instructed to comment on what alcohol was consumed after driving and prepare a report. A report may show that you were under the legal limit whilst driving and the CPS would have no other option but to dismiss the case.
Procedural Error
The law regarding drink driving provides that the police must first complete a detailed procedure before requiring a suspect to provide an evidential sample of breath. The officer should complete a procedural booklet known as the MGDDA document. This document contains a long list of questions which the officer should ask a suspect, as well as the important warnings and legal requirements that must be given by the police. We regularly see cases where the police fail to ask the correct questions, trainee officers tend to make silly mistakes during this important procedure and that could mean a conviction for drink driving is avoided at court.
The police are required to give an important verbal legal requirement before they are lawfully able to obtain a sample of breath from a suspect in either police custody or the hospital. A failure by the Crown Prosecution Service to prove this point beyond reasonable doubt would likely result in a drink driving case being dropped through lack of evidence.
Common MGDDA mistakes
Private Land
The offence of drink driving can only be committed "on a road or other public place" as per section 5(1)(a) of the Road Traffic Act 1998. So, if someone is on their own private land, hotel car park or forecourt or at a wedding venue and the police charges that person with drink driving, there is a defence to be raised. The CPS are required to prove that the land was public, open to the public and the public were able to use that land with unrestricted access at all times.
Best drink driving solicitors near me
We represent our clients all over England and Wales. If you have been charged with drink driving, contact us now for free advice.
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.
A Summary of Recent Cases – Marcus A Johnstone
How to win the 'unwinnable' cases...
Drink Driving – Your First Court Hearing
This booklet discusses a drink driving first court hearing - Is a solicitor necessary?
Will you go to prison?
This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving
Prosecution Disclosure
If you read our blogs regularly you will know that we speak often about the affect of prosecution disclosure (or lack of) in criminal cases. Under the Criminal Procedure and Investigations Act 1988 the CPS have a duty to provide you with;
- The evidence is wants to use against you
- A schedule of unused material
This disclosure should be served as soon as possible following a not guilty plea in the Magistrates' Court and usually within 28 days of the first hearing. But what happens if the CPS fail to provide disclosure within the permitted timeframe?
A failure by the CPS to provide disclosure is one of the most common ways that we win drink and drug driving cases. This is because rules of evidence require the CPS to serve its evidence prior to trial. Often due to staff shortages and administration problems the CPS miss deadlines and make silly mistakes. This is a common occurrence in Magistrates' Court cases, usually because drink driving cases are less serious than other offences in higher courts.
Unfortunately it's not as simple as sitting back and letting the CPS slip up. The defence are required to be proactive in contacting the CPS and in some circumstances are required to call the case back to court for a pretrial review. As an experienced team of specialist defence solicitors, we can advise you on all of these issues. We know how to best safeguard your position in order to give you the best chance of winning your drink driving case.
Special Reasons
A special reason is not the same as a defence. In other words, you can't defend the case using a special reason. Curiously, a special reason is not the same as mitigation either. Most defendants have some kind of mitigation to put forward (i.e. if I licence my job I'll lose my job), but not everyone has a special reason. The most common special reason arguments are discussed in our latest video. You can view this below.
Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series.
