Our team of specialist solicitors have spent years fine-tuning post driving consumption defences to ensure that we give client’s the best chance of avoiding drink driving convictions. It is this attention to detail that has allowed us to develop into the country’s leading, family-run motoring defence practice.
For those who do not wish to read the full booklet, we have summarised the most important aspects of the defence below. If you have been charged with drink driving, we would strongly advise that you contact our team of specialist solicitors, who will be able to outline your options and discuss a defence strategy unique to your case.
The police are only entitled to rely on the evidential breath test results at the police station. The roadside result is non-evidential. But the police station breath test will often take place over an hour after your arrest. This means that the level of alcohol in your body at the time of your test is unlikely to be the same as it was when you drove the vehicle, it may even be higher. So how do the police prove that you were over the limit at the time your drove?
Section 15 of the Road Traffic Offenders Act 1988 creates a legal presumption that the level of alcohol found in the evidential sample at the police station was the same as it was at the time of driving. In other words, the police don’t have to prove that the level of alcohol in your body exceeded the prescribed limit at the time you drove, only that it exceeded the prescribed limit at the time of the evidential test!
This sounds extremely unfair, but prevents the police having to conduct a BAC calculation in every case to try and determine the exact level of alcohol at the time of driving, as this would be time-consuming and extremely expensive!
However, this statutory presumption will not apply if the accused can prove:
This part of the test is factual. It is for the defendant to establish, on a balance of probabilities, that he consumed alcohol after driving but before the evidential test. The most common scenario is where the defendant consumes alcohol in an attempt to calm his nerves following a road traffic collision – but there is no restriction or criteria for this defence. Providing we can present a convincing and plausible explanation as to why alcohol was consumed, this test should not cause too much difficulty.
This part of the test usually involves expert evidence. The courts have decided that the burden of proof is on the defendant to prove that the post-driving consumption of alcohol had been responsible for placing him over the limit.
M.A.J. Law work closely with expert witnesses and forensic toxicologists who are authorised to produce reports for use in court. The purpose of the report is to determine whether the defendant’s breath test results are consistent with the recollected alcohol intake. It is not enough to prove that you would have been under the legal limit at the time you drove, you must also prove that the breath result was consistent with the entire alcohol intake.
There is a tendency for people on police bail to wait and see if they’ll be charged by the police before instructing a solicitor. This is never advisable because the police can bail you to court as soon as they’ve decided to charge you. In some cases – the following day. This leaves little time to prepare for the hearing or identify the potential defence strategy. M.A.J. Law offer a ‘stand-by’ service, allowing us to act on a provisional basis and ensure that we’re fully prepared if the worst does happen
The most common reason for police bail in ‘hip flask’ cases is to give the police an opportunity to conduct a back calculation. As mentioned previously, the legal presumption (that the level of alcohol in your breath was the same as it was when you drove) will not apply if the defendant can prove post driving consumption.
Providing you actually told the police that you had drank alcohol after driving, an MGDDD document should have been completed with you, usually in an interview. This booklet aims to document your entire food and drink intake over the 24 hours leading up to the test. You will know if the police carried out this procedure because they will have asked you for your weight, age and height etc… (the police may even have scales in the interview room!). This information is then handed to an expert who will produce a BAC calculation report. If the report is favourable (in that it supports your alcohol consumption account), the police may be persuaded not to charge you (but in most cases will do anyway). If the report is unfavourable, the police will charge you.
When challenging the results provided by a prosecution expert, M.A.J. Law will need to consider the exact method of calculation, as well as the figures used to calculate. A prosecution expert will never give an exact figure or result, they often use ranges (as they appreciate that body types and elimination rates vary). If the range used by the expert also falls under the legal limit, we have a very strong argument that the case should fail.
If you have been charged with drink driving, you may think that your only option is to plead guilty. Blowing over the limit does not mean that a guilty plea must be entered.
It is unlikely that you will receive legal aid for a drink driving / failing to provide case. This means that you are having to pay privately for representation. Is it advisable to attend the first court hearing alone to save money?
In short, no. Whilst this is an option, it is never advisable to attend a drink driving court hearing without a specialist solicitor. There are a number of reasons for this:
As unfair as it sounds, you are not entitled to see any of the evidence against you until the first court date. In fact, even on the first court date, you’ll probably only see about 20% of it. The CPS will then expect you to plead guilty based on this ‘evidence’!
Due to the complexities surrounding a drink driving case, there is a considerable amount of documentary evidence that will exist (usually in excess of 150 pages).
In a drink driving breath (or failing to provide) case, I would usually expect the evidence to include:
If your case involves blood or urine, you can also add the following to the list above:
However, in most cases, the CPS will only disclose:
The only realistic way of gaining access to all the evidence in the case is by entering a notguilty plea on the first court date. The CPS should then provide the evidence within 28 days. In 90% of drink driving cases that M.A.J. Law challenge, the CPS will fail to serve the evidence within this time frame. We can then raise technical legal arguments and relevant case law in an attempt to secure your acquittal.
It’s a question that can play on the mind of any person considering their options. Our team at M.A.J. Law are usually asked one of the following:
We have addressed the questions above in a separate booklet:
In short, the length of disqualification imposed by the court will always remain the same (as it is based on the breath reading provided or, if you failed to provide, your level of impairment at the time of the test). This means that even if you are convicted after a trial (after seeing all the evidence – hopefully!), you will still receive the same length of disqualification as you would if you pleaded guilty on the first court date (before seeing any of the evidence against you). Of course, if we can win the case, then no penalty will be imposed.
M.A.J. Law specialise in defending drink and drug driving cases. Our solicitors are happy to outline our costs over the phone. We are pleased to confirm that we work on a fixed fee basis, thus ensuring that any legal costs are kept to a minimum. In fact, many of those who contact us to discuss their cases will often express surprise and delight about our fixed fee pricing structure. To find out more, visit our dedicated Pricing Page.
All convictions will eventually become spent, with the exception of prison sentences over 30 months. Once the conviction becomes spent, you will not need to disclose it to employers, insurers etc. An employer cannot refuse to employ someone (or dismiss someone) because he or she has a spent caution or conviction.
The Rehabilitation of Offenders Act 1974 allows certain convictions to become ‘spent’ after a specified period of time (the rehabilitation period). Rehabilitation periods for the most minor sentences, (e.g. cautions, disqualifications, fines) begin from the date of conviction. However, for convictions resulting in a community sentence or custodial sentence, the rehabilitation period (or ‘buffer’ period) will start from the end of the entire sentence (not at the point of release from prison).
The following table sets out the rehabilitation period for sentences that do not have buffer periods. The rehabilitation period starts on the date of conviction:
|Sentence||Adults (18 & over)||Youths (18 & over)|
|Fine||12 months||6 months|
|License Endorsement||5 years||2.5 years|
|Driving disqualification||Last day of ban||Last day of ban|
For example, if an adult was convicted of drink driving and disqualified for 12 months the longest rehabilitation period always applies. This means that the total rehabilitation period would be five years (this period will apply to all driving disqualifications under 5 years).
If you are convicted again for a drink driving offence (or other summary offence), neither rehabilitation period will be affected. The conviction for the earlier offence will become spent at the time originally fixed, and the conviction for the later offence will become spent after the normal period.
A drink driving conviction will remain on your licence for a period of up to 11 years from the date of conviction. The exact period of disqualification will depend on the individual offence:
|Offence||Period on license|
|DR10 – Drive or attempt to drive with excess alcohol||11 years|
|DR40 – In Charge of a vehicle with excess alcohol||4 years|
|DG10 – Drive or attempt to drive with drug level above specified limit||11 years|
|DR20, DR80 – Drive or attempt to drive while unfit through drink or drugs||11 years|
|DR50, DR90 – In charge of a vehicle while unfit through drink or drugs||4 years|
|DR30 – Failing to provide a specimen of analysis while driving or attempting to drive a vehicle||11 years|
|DR60 – Failing to provide a specimen for analysis while in charge of a vehicle||4 years|
|DR70 – Failing to co-operate with a preliminary roadside breath test||4 years|
M.A.J. Law offer free no-obligation legal advice over the phone. We never try and ‘sell’ our service or persuade you to instruct us, we simply inform you of all your options and the likely penalty if convicted.