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There are a number of alcohol-related offences. They are divided into offences where a disqualification is mandatory (driving or attempting to drive) or discretionary (the less usual offence of being in charge of a vehicle where the mandatory penalty is 10 penalty points or discretionary disqualification). Where a driver fails to provide to the police evidential samples of breath, blood or (unusually) urine they will face the same penalty as for the offence the police are investigating.
Any penalty and disqualification imposed will be greater the higher the alcohol reading, with the risk of a maximum period of 6 months’ prison. The Magistrates’ Court will follow closely sentencing guidelines (see below). There is generally little realistic opportunity for contesting a prosecution at trial unless a) the driver has been wrongly identified b) there is a technical defence or c) there has been post-driving alcohol consumption and when driving the driver was not ‘over the limit.’
The law assumes unless proved otherwise that the alcohol level recorded when a driver is tested is that at the time he or she last drove.
- The maximum fine is now unlimited and/or 6 months in prison.
- The minimum sentence is 12 months disqualification, unless special reasons can be argued.
- The minimum disqualification period is three years if convicted of like or similar offences within last 10 years.
A Court will look at the aggravating (negative) and mitigating (positive) features when deciding any penalty:
Negative features include:
- ability to drive impaired
- caused injury, fear or damage
- police pursuit
- evidence of poor driving/accident
- type of vehicle driven eg goods vehicle PSV
- high reading
- poor road or weather conditions
- location e.g. near a school
- lack of insurance
Positive feature (other than special reasons) include:
- co-operation with police / early Guilty plea
- genuine emergency (but not amounting to special reasons)
- spiked drinks (but not amounting to special reasons)
- very short distance driven (but not amounting to special reasons)
- genuine remorse
Sentencing guidelines for drink driving / attempting to drive
|Level of Alcohol|
|Breath (mg)||Blood||Urine||Disqualification||Guideline starting point|
|36 – 59||81 – 137||108 – 183||12 – 16 months||Band C fine|
|60 – 89||138 – 206||184 – 274||17 – 22 months||Band C fine|
|90 – 119||207 – 275||275 – 366||23 – 28 months||Medium level community order|
|120 – 150 and above||276 – 345 and above||367 – 459 and above||29 – 36 months||12 weeks custody|
- Band C fine = starting point of 150% of relevant weekly income and a range of 125% – 175% of the relevant weekly income.
Special reasons mitigation
An automatic driving ban can be avoided if a defendant can argue ‘special reasons’. This covers unusual circumstances where it would not be appropriate to impose the normal mandatory disqualification or penalty points (depending on the offence.)
Special Reasons are mitigating circumstances directly connected with the commission of the offence. (A circumstance peculiar to the offender, as distinguished from the offence, is not a special reason.) They include an emergency situation, duress, shortness of distance driven or a laced drink.
These are difficult arguments to advance and it is strongly advised that representation be sought in such cases.