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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.
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If you are convicted of a criminal offence in England or Wales, your sentence will depend on a number of factors, including the type, seriousness and circumstances of the crime. It is crucial that your defence solicitor knows the Magistrates’ Court Sentencing Guidelines ‘inside-out’ in order to safeguard your position and ensure that the magistrates impose the most lenient penalty.
Please be aware that nearly all drink driving offences start in the same way – with a charge and a date for court. This does not make you guilty of the offence. If you have mistakenly assumed that your only option is to plead guilty and accept the mandatory driving ban that applies, please get in touch so that our drink driving solicitors can guide you through your options completely free of charge. Any potential disqualification will not be affected by the timing of a guilty plea. This means that the disqualification will not increase even if you are convicted at a later date.
When passing sentence, the judge or magistrate will consider:
The magistrates will take into account guidelines issued to them when deciding what penalty to impose. These help to achieve consistency when sentencing. You can find a copy of the Magistrates’ Court Sentencing Guidelines towards the bottom of this booklet. This is the starting point when considering what penalty will be imposed.
There are two crucial parts to the Magistrates’ Court Sentencing Guidelines that need to be considered. Both parts will be imposed if convicted. These are:
The punitive element of the offence is the fine, community order or custodial sentence. These penalties are affected by the timing of a guilty plea, meaning that you would receive a greater discount if you entered a guilty plea at the earliest opportunity (usually on the first court date before seeing the evidence). This credit is gradually reduced as the case progresses.
This relates to the disqualification. You may be pleased to hear that an ancillary order is not affected by the timing of a guilty plea. This means that the disqualification will not increase even if convicted at a later date.
Consider the excerpt below from the Magistrates’ Court Sentencing Guidelines.
The Council guidelines Reduction in Sentence for a Guilty Plea, revised 2007, states that the punitive elements of the sentence should be reduced to recognise an offender’s guilty plea. The reduction has no impact on the sentencing guidelines in relation to ancillary orders, including disqualification. The level of the reduction should reflect the stage at which the offender indicated a willingness to admit guilty and will be gauged on a sliding scale, ranging from a recommended one third (where the guilty plea was entered at the first reasonable opportunity), reducing to a recommended one quarter (where a trial date has been set) and to a recommended one tench (for a guilty plea at the ‘door of the court’ or after the trial has begun). There is a presumption that the recommended reduction will be given unless there are good reasons for a lower amount.
M.A.J. Law have defended countless drink driving cases over the years. Our solicitors believe that there is no real benefit in pleading guilty at the first court hearing. Consider for yourself what you have to gain or lose. If you plead guilty at the first hearing you will receive a immediate lengthy disqualification. This is likely to remain the same whenever you decide to plead guilty (if at all). The Sentencing Council, above, state that any reduction for a guilty plea does not apply to a disqualification.
As to the level of fine, this is based on income. The fine rarely exceeds £600.00. Even if your plea of guilty was entered at such a late date that you only received a 10% discount, this would save you around £150.00. Not much of a benefit if you are then banned for a substantial period.
Our team believe that anyone facing a long ban (or worse) should never plead guilty before attending court for a trial. By attending court for a trial you force the CPS to prepare its case for court and arrange witnesses to attend court to give evidence (including the officer conducting the breath test). Time and time again the CPS will fail to attend court with key prosecution witnesses. No witness means no evidence.
Your sentence may also be affected by the existence of any ‘aggravating’ or ‘mitigating’ circumstances. An aggravating circumstance is something that makes a crime more serious. For example, in a drink driving case, an aggravating factor might include:
A mitigating circumstance is something that makes a crime less serious. A mitigating factor might include:
Prison is always a last resort. Having said that, a solicitor can never guarantee that the court will not impose a custodial sentence. If you think that your case surpasses the custody threshold, the only way to guarantee that you will not go to prison is to avoid a conviction.
A community order may be more likely. Below are a list of the most common community orders:
Please note that the court will impose a disqualification alongside your community order. This means that you will have to rely on friends, family or public transport to travel to the specific locations. If you fail to attend an appointment, or turn up late, it is likely you will be brought back in front of the magistrates who will then impose a more severe penalty (such as prison, for example).
If convicted (even after a trial), you are likely to be offered the opportunity to attend the Drink Driving Rehabilitation Course. This will reduce the period of disqualification by 25% (one quarter). Make sure you book and attend the course by the date specified by the court. The course is voluntary and can cost in the region of £350.00.
Below are the sentencing guidelines for the most common driving offences:
| Breath alcohol level (mg) | Blood alcohol level (ml) | Urine alcohol level (ml) | Starting point | Range | Disqualification (first offence) | Disqualification (2nd offence in 10 years) |
|---|---|---|---|---|---|---|
| 36 – 59 | 81 – 137 | 108 – 183 | Band C fine | Band C fine | 12 – 16 months | 36 – 40 months |
| 60 – 89 | 138 – 206 | 184 – 274 | Band C fine | band C fine | 17 – 22 months | 36 – 46 months |
| 90 – 119 | 207 – 275 | 275 – 366 | Medium level community order | Low level community order – high level community order | 23 – 28 months | 36 – 52 months |
| 120 – 150 and above | 276 – 345 and above | 367 – 459 and above | 12 weeks custody | High level community order to 26 weeks custody | 29 – 36 months | 36 – 60 months |
(driving/attempting to drive)
| Examples of nature of activity | Starting point | Range | Disqualification (first offence) | Disqualification (2nd offence in 10 years) |
|---|---|---|---|---|
| Defendant refused test when had honestly held but unreasonable excuse | Band C fine | Band C fine | 12 – 16 months | 36 – 40 months |
| Deliberate refusal or deliberate failure | Low level community order | Band C fine to high level community order | 17 – 28 months | 36 – 52 months |
| Deliberate refusal or deliberate failure where evidence of serious impairment | 12 weeks custody | High level community order to 26 weeks custody | 29 – 36 months | 36 – 60 months |
(in charge of a vehicle)
| Examples of nature of activity | Starting point | Range |
|---|---|---|
| Defendant refused test when had honestly held but unreasonable excuse | Band B fine | Band B fine 10 points |
| Deliberate refusal or deliberate failure | Band C fine | Band C fine to medium level community order
Consider disqualification OR 10 points |
| Deliberate refusal or deliberate failure where evidence of serious impairment | Medium level community order | Low level community order to 6 weeks custody
Disqualify 6 -12 months |
(driving / attempting to drive)
| Examples of nature of activity | Starting point | Range | Disqualification (first offence) | Disqualification (2nd offence in 10 years) |
|---|---|---|---|---|
| Evidence of moderate level of impairment and no aggravating factors | Band C fine | Band C fine | 12 – 16 months | 36 – 40 months |
| Evidence of moderate level of impairment and presence of one or more aggravating factors listed below | Band C fine | Band C fine | 17 – 22 months | 36 – 46 months |
| Evidence of high level of impairment and no aggravating factors | Medium level community order | Low level community order to high level community order | 23 – 28 months | 36 – 52 months |
| Evidence of high level of impairment and presence of one or more aggravating factors listed below | 12 weeks custody | High level community order to 26 weeks custody | 29 – 36 months | 36 – 60 months |
(in charge of a vehicle)
| Examples of nature of activity | Starting point | Range |
|---|---|---|
| Evidence of moderate level of impairment and no aggravating factors | Band B fine | Band B fine 10 points |
| Evidence of moderate level of impairment and presence of one or more aggravating factors listed below | Band B fine | Band B fine 10 points or consider disqualification |
| Evidence of high level of impairment and no aggravating factors | Band C fine | Band C fine to medium level community order
10 points or consider disqualification |
| Evidence of high level of impairment and presence of one or more aggravating factors listed below | High level community order | Medium level community order to 12 weeks custody
Consider disqualification OR 10 points |