Drink Driving FAQs

Drink driving frequently asked questions

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Want to know more about the law on drinking and driving. If the answer is not here then contact me, request a call back or leave a reply at the bottom of the page. I will get back to you.

Drinking and driving facts

What is the legal drink drive limit?

The drinking and driving limit in England and Wales are:

  • 35µg of alcohol in 100ml of breath,
  • 80mg of alcohol in 100ml of blood or
  • 107mg of alcohol in 100ml of urine.

Limits are different in other countries. The limits in Scotland are 50mg/100ml of blood.

How many units can you drink before driving?

This is a dangerous calculation to make. The best advice is not to drink at all before you drive. You cannot make a precise calculation. Alcohol levels in your body depend on too many factors: the amount of alcohol, when the alcohol was consumed, height and weight are some examples but there are others.

The government do not publish figures on how much you can safely drink to stay on the right side of the law.

More information about how much alcohol you can safely drink in this post.

Where can I find a drinking and driving calculator?

It is a bad idea to try and calculate your alcohol levels before driving. Results can never be 100% accurate and you should NEVER rely on them when deciding if you are safe to drive.

Experts calculate alcohol levels in drinking and driving cases using a Widmark factor to calculate alcohol levels. If you want to make the calculation for fun then try:

  • rupissed.com
  • drinkdriving.org

Going to court

I have a court date for drink driving. Will the case be finished on that day?

Most drink driving cases are dealt with at the first court hearing if you plead guilty. If the magistrates are going to give you a fine and a disqualification they will do it straight away.

There are 2 common reasons for cases to be put off to another day:

  • If the magistrates think that the case is too serious for a fine they might want to impose a community sentence or a even prison. Before they do that they will need a report from a probation officer. If there is no probation officer available to prepare a report the case could be adjourned.
  • If you plead not guilty your case will be put off for a trial on another day. That could be anything from 6 weeks to 6 months away.

Will the witnesses and police officers be in court?

Witnesses and police officers will not go to the first hearing. They can go if they want to but they usually do not.

If you plead not guilty then the case will go to trial. You (or your lawyers) will say if you agree that the statements of the witnesses and police officers are correct. If you dispute their evidence then they will be at court for your trial. The trial will be a few weeks or months after the first hearing of the case.

Can I have a jury trial?

No. Drink driving cases are always heard by a magistrates’ court. They are known as summary only cases. It is not possible to have a jury trial for drink driving.

Will my drink driving case be in the newspaper?

It could be. Everything in the magistrates’ court is public. Reporters from the local press go to court and report on the cases. Some magistrates’ court offices also release their results to the newspapers. Not every drink driving case gets reported. They are quite often not considered to be interesting enough to make it into the paper.

It is extremely rare for a court to make an order preventing the reporting of your case of you are an adult. If you are under 18 then your case will probably not be reported.

What happens if I want to plead not guilty?

Your case will go to trial. Trials are usually 6 weeks to 6 months after the first court date. Magistrates or a judge will hear the evidence. They decide if the prosecution can prove the case against you. You will have the chance to cross-examine prosecution witnesses. You might also want to put forward defence witnesses. A solicitor can advise you about taking the case to trial.

Do I need a solicitor for a drink driving charge?

A solicitor can help you with a drink driving case in court. These are some examples of what a solicitor can advise about. Whether to plead guilty or not guilty. What the likely sentence will be. What will happen in court. A solicitor can also speak on your behalf in the court room.

You do not have to go to court with a solicitor. If you feel confident about going before the magistrates yourself then that might be an option for you. Sometimes you can get just as good a result on your own.

A solicitor (or barrister) is in court every day. They know what to do and they know what might happen. Remember you only get one opportunity to put your case forward. There are no second chances unless you can take your case to appeal.

More information about choosing a solicitor.

More information about deciding if you need a solicitor.

How much will a solicitor cost for a drink driving case?

Costs vary from a few hundred to a few thousand pounds. Different solicitors firms charge different rates. The costs will also vary dramatically depending on whether you plead guilty or not guilty. You will need to speak to your chosen solicitor and ask why the costs will be. I have a range of fixed fees which you can see here.

Can I get free advice from a solicitor for drink driving?

Most good specialist drink solicitors will give you some free advice over the telephone. Some might even offer a free face-to-face consultation.

Will I get legal aid for drink driving?

It is theoretically possible to get legal aid for drink driving. The rules about legal aid are quite tight and it can be difficult to get. You should speak to a solicitor who has a legal aid contract to find out more. I do not take on legal aid cases.

You have to pass two tests before you get legal aid. Firstly you have to be on a low income or on certain benefits. Secondly your case has to be serious enough for legal aid. That normally means that either: you are at risk of a prison sentence; or your case is extremely complicated. Most drink driving cases do not pass this test.

Breath tests

The breathalyser reading at the roadside was different from the reading in the police station. Can that get me off?

It is unlikely. The breathalysers that the police use at the roadside are screening devices. They are not as accurate as the breathalysers in the police station. In some rare cases a big difference between the 2 readings could show that the breath testing machine in the police station is wrong. You would need to have an expert look at the readings and even examine the machines. If the expert thought that there was a problem you might have a defence.

The person who breathalysed me in the police station was not a police officer. Does that make a difference?

No. Civilian staff in the police station are trained operators of the machines. But, it must be a police officer who tells you that you have to provide a breath sample. If a civilian does that part of the procedure then the whole thing is not valid. You should take legal advice and think about pleading not guilty.

Blood and urine tests

The police did not offer me a blood sample, is that right?

It depends on what happened when you were arrested. In most cases the police do not have to offer you a blood test. Just a breath test is enough.

Some examples of times when the police will ask for a blood or urine test are:

  • If the breathalyser machine is not working.
  • If there is a good reason that you cannot provide a breath sample. This can often be due to a medical condition such as COPD or severe asthma.
  • If you are in hospital. If you have been in a serious accident the police might take you to hospital instead of straight to the police station.
  • If the breathalyser reading was between 41 and 50µg/100ml. You will be given the option to replace the breath sample with a blood sample. This is known as the statutory option. It is due to be phased out in 2015.

The police took a blood sample from me in hospital when I was unconscious. Is that OK?

If you are unconscious in hospital the police are allowed to take a blood sample without you knowing. There are strict rules in place. They have to get permission from the doctor in immediate charge of your case. They also have to get your consent to use the sample results in court against you. Police officers will speak to you when you regain consciousness and ask for your consent. If you do not consent to the police using the blood sample you will be charged with failing to allow a sample to be used. So you do not really have a choice.

The police took a blood sample from me in hospital but I did not really know what was going on. Is that OK?

There are two different procedures that the police can use in hospital to obtain a blood sample for testing. If you are conscious and capable of giving consent, the police ask you to consent to giving a sample. If you are not conscious or not capable of giving consent they do not have to ask for your consent. In both cases the police have to ask the doctor in immediate care of your case if they can take a sample.

If the police use the wrong procedure that is not OK and you could have a defence. This is a complicated area of law. It usually involves expert witnesses. You should take legal advice before using it as a defence at trial.

The police have given me a sample of my blood (or urine). What should I do with it?

Have it tested. You should have been given a leaflet with a list of testing laboratories. If not, then you can find a copy of the leaflet here. Call the laboratory as soon as you can, they will tell you what to do. It should cost £150-£200 for the test.

At worst you will have some independent confirmation of the police’s results. At best your result might come back under the limit. You have nothing to lose other than your £150-£200.

Defences

I was not driving, can I still be done for drink driving?

It depends.

If the police or witnesses say that you were driving and you were not then you will have a defence. You can challenge the evidence at a trial. If the prosecution cannot prove that you were driving then you will be not guilty.

You can be guilty of drink driving if you were attempting to drive.

You can also be guilty of drink driving if you assist or encourage someone else to drive when they are over the limit. (This used to be called aiding and abetting drink driving.) The penalties for assisting or encouraging drink driving are just the same as they would be if you were driving.

Are there any technicalities or loopholes that can get me off drink driving?

Technicalities and loopholes are strange things. You could say that they do not exist. The law says that the police have to follow set procedures. If those procedures are not followed then the case against you may fail. Sometimes the police do not follow the correct procedure. Here are some of the breaches that I have seen that have resulted in an acquittal.

  • Police taking a blood sample in hospital without asking the doctor in immediate charge of the patient’s case.
  • Taking a sample of blood in hospital when the patient was not well enough to consent (depends on which procedure is used, this can be complicated).
  • Taking a blood sample that is too small to be tested.
  • Not giving the driver half of the sample for them to have tested.
  • Giving too small a sample to the driver so that they cannot have it tested.
  • Not giving a proper warning to the driver about providing a breath, blood or urine sample.
  • Requirement to give breath made by a civilian instead of a police officer.
  • No evidence that the accused was driving.
  • Errors in the laboratory testing of a blood or urine sample.
  • Errors in the handling of a blood or urine sample between the police station and the laboratory.
  • Not following the procedure in the police station. The procedure is set out in a document called the MG DD/A.

More information about loopholes.

Special Reasons

I only drove a short distance. Is that a defence?

No it is not a defence. It might be a special reason not to disqualify you. Special reasons mean that although you are guilty you might not be banned from driving.

A short distance driven on its own is not enough. The court will look at everything that happened before they decide if you should be disqualified from driving.

My drinks were spiked. Is that a defence?

No it is not a defence. It might be a special reason not to disqualify you. Special reasons mean that although you are guilty you might not be banned from driving.

You will have to prove to the court that your drinks were spiked. If you were a long way over the limit the spiked drinks argument does not usually work. Magistrates will say that you should have realised you were over the limit.

I was drinking cough medicine that contained alcohol. Can I still be convicted?

Yes. Alcohol is alcohol whether it comes from medicine or vodka. Most cough medicines contain such small amounts of alcohol that you would have to drink huge amounts to be over the limit.

If you were truly unaware of the alcohol in the medicine and that alcohol put you over the limit you might have a special reason not to disqualify from driving. It would be pretty unusual.

I was sleepwalking. Is that a defence?

No it is not a defence. It might be a special reason not to disqualify you. Special reasons mean that although you are guilty you might not be banned from driving.

Driving bans

Will I get a ban for drink driving?

Yes. If you are convicted of drink driving there will be a minimum driving disqualification of 12 months. Magistrates have sentencing guidelines based on the alcohol reading. Those guidelines mean that higher reading will attract a ban of longer than 12 months.

The only way to avoid a ban is either to plead not guilty and be acquitted or prove that there are special reasons not to disqualify you.

Can I do a course to reduce the length of my ban?

Yes. Magistrates will usually allow you to do a rehabilitation course. Completing the course means that the ban will be reduced by ¼. You have to pay for the course yourself.

How long will I be disqualified for drink driving?

It depends on several factors. Magistrates have sentencing guidelines that they use to calculate the length of a driving ban. You can find the full guidelines here at page 124. They have to weigh up aggravating factors (which make the case more serious) and mitigating factors (which make the case less serious).

The main factor is the alcohol reading. These are the guidelines for cases with a breath specimen.

  • Breath reading 36-59µg/100ml – disqualification 12-16 months.
  • Breath reading 60-89µg/100ml – disqualification 17-22 months.
  • Breath reading 90-119µg/100ml – disqualification 23-28 months.
  • Breath reading 120-150µg/100ml – disqualification 28-36 months.

There are equivalent guidelines for blood and urine readings.

If you have a previous conviction for drink driving or a drink driving related charge like failing to provide a specimen then you will be banned for a minimum of 3 years.

Sentences

What are the penalties for drink driving?

If an adult is convicted of driving with excess alcohol the magistrates’ court must impose:

  • a discharge, a unlimited fine, a community order or a prison sentence of up to six months and
  • a driving disqualification of at least 12 months unless special reasons are present.

Magistrates use sentencing guidelines to decide on the level of sentence and the length of the disqualification.

Can I go to prison for drink driving?

Yes. The magistrates court has power to send drink drivers to prison for up to 6 months.

It is fairly unusual for a prison sentence to be passed for drink driving. Once the breath alcohol reading goes over 120µg/100ml a custodial sentence is within the guidelines.

How much will I be fined for drink driving?

The maximum fine for drink driving is unlimited.

The most common fine for drink driving cases is 1½  times your weekly take home pay. That fine is discounted by ⅓ if you plead guilty at the first hearing. The result is that most drink drivers are given a fine equal to their weekly pay.

I will lose my job if I am banned from driving. Can courts take that into account?

Losing your job will not stop the courts from disqualifying you from driving. If you are convicted of drink driving you have to be banned for at least 12 months.

Courts do have to take your personal circumstances into account. The effect that a conviction will have on you (including losing your job) is relevant mitigation. It might mean that the magistrates or the judge reduce the length of the ban or reduce the fine that you have to pay. Whatever they do the ban will not be less than 12 months.

Will I have a criminal record if I am guilty of drink driving?

Yes. A conviction for drink driving does go on your criminal record. After a few years the conviction is spent. It will no longer be on your record. The length of time that the conviction stays on your record is five years in most drink driving cases.

For some purposes the conviction is never spent. You have to declare it for ever if the Rehabilitation of Offenders Act 1974 does not apply. Some examples of this are if you want to: be a teacher; be a police officer; or work in the health service.

See this post for more information.

Is drink driving a criminal conviction?

Yes, a conviction after trial or a guilty plea to drink driving is a criminal conviction. You may not have to declare that conviction once it is spent. See this post for more information.

Appeals

I was convicted of drinking and driving. Can I appeal?

Yes you can appeal a drinkng and driving conviction to the Crown Court. You must send a notice of appeal to the magistrates’ court and the prosecutor within 21 days of the day that you were sentenced. If you want to appeal out of time you will need permission from the a Crown Court judge.

You can appeal:

  • the conviction (the finding of guilt by the magistrates)
  • the sentence (and the length of disqualification) or
  • both.

Some types of appeal in drink driving cases are heard by the High Court. Those cases are unusual, most appeals are in the Crown Court.

It is a good idea to speak to a solicitor if you want to appeal a drink driving conviction.

6 Replies to “Drink Driving FAQs”

  1. My daughter stupidly turned her car round in a cul de sac as it was a no parking area she drove 30 ft to park it up at a dead end but police pulled her and she’s been charged with drink n driving her solicitor has told her to plead guilty with special circumstances as she had no intention of actually driving off .im so worried it’s making me ill . Will she sell her banned .

    1. Hi Sharon. Sorry to hear that your daughter has been charged. You can give me a call if you need to discuss the case on 0330 111 6074. Sounds like her solicitor is already dealing with it pretty well.
      Stephen

  2. Hello Stephen, I am going to magistrates court next week on a charge of drink driving. I am currently in the bracket of a 17 – 22 month ban! This is a first offence, and I have a clean licence, good character i.e. I am a youth worker and nursery school teacher and do voluntary work, I also have some excellent character references from a friend/colleague who is a former Councillor and mayor and another from a friend/colleague who is a former County Councellor. I shall also have one from my Leader in Charge at the youth club I work at for Surrey County Council. I am a working single parent on a low income and am in receipt of tax credits at a reasonably high level as my daughter is registered disabled. I am hoping for a reduced sentence as I wish to plead ‘exceptional hardship’ as I am the sole carer for both my 82 year old Mum who has Parkinsons, a brain tumour, is partially deaf and has many other medical conditions, and my daughter who is 17 and has diagnosis of Autism, ADHD, dyslexia, learning disabilities, a genetic disorder, emotional and social difficulties, attachment disorder, obsessive behaviours and a reading age of around 10. I read in magistrates guidelines that being sole carer to dependents could help my case. My only family live 4 hours drive away. I am hoping to get a doctors letter to verify all of the medical info regarding Mum and Daughter and their dependence on me. I am on medication for depression myself too. I have a solicitor whom I hope to meet this week as I am in court next week. what do you think? Many thanks Lisa

    1. Hi Lisa. Good luck in court next week. You should discuss all of the points with your solicitor – there is a lot of detail to go thorough. The only thing that concerns me is that you can’t argue exceptional hardship in a drink driving case.
      Best of luck.
      Stephen

  3. Hi Stephen I am on my second drink driving charge, I blew 83 and only had my licence back around February, I was also involved in a collision no one was hurt thank god, do you have any idea as to what my punishment will be, I m so disgusted in myself, I am a single mom of two an there only caree I am petrified what will happen to them if I get a custodial sentence as I’m there everything, any advice would be much appreciated

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