Driving with Excess Alcohol

Drink Driving Legislation

Driving or attempting to drive a motor vehicle on a road or public place with alcohol over the prescribed limit is a criminal offence under section 5(1)(a) of the Road Traffic Act 1988.This offence can only be dealt with in the Magistrates Court although there is the possibility of the offence being committed to Crown Court if linked with more serious matters destined for the Crown Court. If so the offence will only be disposed of at Crown Court if there is a guilty plea. If a not guilty plea is entered then the offence is remitted back to the Magistrates Court for trial.

Definition of Driving or Attempting to Drive

The charge must say one or the other. It cannot allege both. Driving  means using to a substantial degree the controls of the motor vehicle to direct the movement and direction of the vehicle. Attempting to start a vehicle even if it did not move has been held to be attempting to drive.

Definition of Motor Vehicle

This means a mechanically controlled vehicle intended or adapted for use on roads e.g. cars and motor bikes. The test is based upon the view of the reasonable person. If that view would be that the vehicle was intended to be used on roads then it falls within the definition.

Definition of Road or Public Place

A road can be any highway, footpath, bridleway or bridge and any other road to which the public have access. A public place means anywhere where the public have access e.g. a pub car park.

Definition of Over the Prescribed Limit

The prescribed limits of alcohol are 35mg of alcohol in 100ml of breath, 80mg of alcohol in 100ml of blood and 107mg of alcohol in 100ml of urine. If driving above these limits then the offence has been committed. However a prosecution is unlikely to result if the lowest reading in breath is less than 40mg.

The Tests

If a police officer has a reasonable suspicion that a driver has been drinking then he can require a breath test. Frequently a preliminary breath test is taken at the scene. If the results are positive then the driver may be arrested and taken to the police station to undergo a further test. The police choose whether a breath, blood or urine sample is to be taken. Invariably it is the breath test unless the breath analysis machine is not working or there are medical reasons which mean a different sample is required. The breath sample is analysed by a Lion Intoxilyzer machine 6000 UK. The machine will produce a reading and it is the lower reading which will determine whether the driver is over the limit. A copy of the print out will be given to the driver. If a blood or urine sample is taken then the sample is sent away for analysis and a certificate recording the result will be produced by the analyst.

Possible Defences

The defendant can seek to raise a reasonable doubt about the reliability of the machine. There is a presumption that the machine is reliable and to rebut this the defendant will need to call relevant evidence. Relevant means specific to the case and the machine in question. Very often experts will need to be called. It should be remembered that the prosecution do not have to prove the specific reading only that the driver was over the limit. So if all an expert can say is that there is a marginal difference in the readings and this difference does not mean that the driver was under the limit then there is no defence.

The defendant can seek to prove on the balance of probabilities that he had consumed alcohol after driving and that this is what led to him being over the limit and that he was not over the limit at the point he was driving. The court have to assume that the level of alcohol at the time of driving was the same as the level on the test and so medical or scientific evidence will be required to rebut this assumption.


The maximum penalty for Driving with Excess Alcohol is a level 5 fine (£5000) and 6 months imprisonment. The court must disqualify for a minimum of 12 months. The sentence and period of disqualification above 12 months will be determined by the level of the reading and aggravating or mitigating circumstances of the offence. Where there is a similar conviction for an alcohol related driving offence in the previous 10 years then the court must disqualify for at least 3 years.

The court may offer the option to reduce the disqualification by undertaking a course. This offer will be made on the day of sentence and there will be a fee for the course. The reduction will be for not less than 3 months and not more than a quarter of the original disqualification period e.g  a 12 month disqualification will be reduced to 9 months.

Special Reasons

The defendant can seek to claim that he had special reasons for driving over the limit. If proved the court then has a discretion not to disqualify.  Common special reasons put forwards are laced drinks, emergencies and shortness of distance. There is much case law on this point which can be a good indicator of the success or otherwise of raising a special reasons argument. Even if the court do not find special reasons they may well take account of the issues raised as mitigating factors in terms of sentence and disqualification.