Alcohol offences explained
Alcohol-related offences fall into a number of categories including driving with excess alcohol, failing to provide an evidential specimen (breath, blood or urine), being in charge of a vehicle after consuming excess alcohol and driving whilst unfit.
The most straightforward of these cases will involve being stopped at the roadside, taken to the nearest available police station and being detained before charge and release. In most cases, people are kept in a cell overnight or at least until the alcohol in their system has reduced sufficiently to trigger release from custody.
Alcohol cases, however, can be vastly more complex and can involve further testing, unreliable breath testing equipment, a variety of requirements for samples and procedural anomalies, all of which should be thoroughly investigated. In most cases, we will instruct at least one expert.Not every alcohol-related charge results in conviction
Not Every Alcohol-related Charge Results In Conviction
It is misguided to expect every alcohol charge to result in a certain conviction. We prove daily that clients should not be convicted for a variety of reasons. It cannot be said that every breath-testing instrument is reliable; that every procedure conducted by an officer or other professional is done so in accordance with the statutory provisions that should be adhered to and that every evidential sample is correctly analysed and recorded.
We defend many cases and we win many of those defended as a result of the validity of our arguments. We have never been criticised by a trial or appeal court for bringing a case to court without any prospect of winning. If we proceed to trial it is always on the basis that we expect to win.
If a plea of guilty is advisable we will make that decision as soon as possible and forward that plea to the court on our client’s behalf with a view to preserving as much credit as possible to ensure that person receives the lowest possible sentence available. An example of when this situation is most likely to occur would be where two similar offences have been committed in a very short space of time and each reading is particularly high and likely to reach the custody threshold. We will not gamble with our client’s liberty in such precarious situations.
What happens next?
Once charged, you will be given a court date when you must attend a plea hearing at the magistrates’ court local to the police station/hospital where you were detained. Until you attend the magistrate’s court, you remain on police bail and it is your duty to comply with any terms and conditions of your bail.
You should always instruct a specialist motoring solicitor as early as possible and certainly before attending the plea hearing. The court will ordinarily expect a guilty plea to an alcohol-related charge. If you intend to plead not guilty, the court will insist upon you providing sufficient reason for doing so. The case begins to be managed at the first hearing before being adjourned for trial; a full case management exercise is undertaken at the plea hearing in most cases. Legal reasons for having pleaded not guilty will be required to be presented to the court at the initial hearing, hence the need to instruct a solicitor prior to any attendance at court.
You will be released from court on court bail and must inform the court of any circumstances pending trial that may impact your bail. Upon instruction, the Jefferies team will take all such issues out of your hands by dealing directly with all parties to the proceedings; you simply turn up at court when required.
In all but exceptional cases, the court will allow you to continue driving up until the time of your trial and of course when we win you will not be convicted and therefore retain your driving licence.
While most cases involving driving after having consumed excess alcohol are dealt with at the magistrates’ court, others involving fatalities are sent from the magistrates’ to the Crown Court for trial or sentence. These offences are explained in detail under the heading of ‘causing death while driving’.
Driving with excess alcohol (drink driving)
Driving with Excess Alcohol (Drink driving)
Offences contrary to Road Traffic Act 1988 s.5(1)(a)
If your charge sheet or summons states that you have committed an offence of driving after having consumed alcohol in excess of the prescribed limit, you are facing an obligatory 12-month minimum disqualification from driving and a maximum fine of £5000. At its highest, this offence carries a maximum 6-month sentence of imprisonment or, for offences where lower culpability is found, a community penalty.
*Magistrates’ sentencing powers are due to change in Autumn 2014 when much more severe financial penalties will be imposed e.g. there will be no upper limit on the fines the court is able to impose when sentencing.*
Sentences are dependent upon the level of alcohol in a person’s system at the material time, in addition to consideration of aggravating and culpability factors.
The following table details the guidelines used by the court to decide levels of sentencing:
OFFENCE SERIOUSNESS (CULPABILITY AND HARM) STARTING POINTS
Triable only summarily:
Maximum: Level 5 fine and/or 6 months
Must endorse and disqualify for at least 12 months
Must disqualify for at least 2 years if offender has had two or more disqualifications for periods of 56 days or more in preceding 3 years
Must disqualify for at least 3 years if offender has been convicted of a relevant offence in preceding 10 years
Excess alcohol (In Charge)
Road Traffic Act 1988 s.5 (1)(b)
It is an offence for a person to be in charge of a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in the breath, blood or urine exceeds the prescribed limit. The maximum penalty available to the sentencing court is a 3-month sentence of imprisonment and a level 4 fine.
It is a defence for a person charged with this offence to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of him driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit. The court may, in determining whether there was such likelihood as is mentioned above, disregard any injury to the person and any damage to the vehicle.
This offence does not attract an obligatory disqualification from driving. If, however, the court chooses not to disqualify, it must impose a 10 point penalty in the alternative.
If the imposition of a 10-point endorsement automatically puts you at risk of totting, i.e. accumulating 12 points or more.
At Jefferies, we can argue that your inability to drive would cause exceptional hardship. A successful legal argument will result in you keeping your licence and continuing to drive instead of being automatically disqualified for the statutory minimum period of 6 months.
Failing to provide a specimen for analysis
Failing to provide a specimen for analysis
Road Traffic Act 1988 s.7(6)
Any person who, without reasonable excuse, fails to provide a specimen of blood, breath or urine when required to do so is guilty of an offence.
There are many situations where a person may have a reasonable excuse for not providing the evidential specimen; those reasons must be investigated as they can provide a defence to this allegation which, upon conviction, attracts a higher starting point when sentencing.
Wilful refusal to provide a specimen will not be considered a defence, however where a person has properly tried, but failed to satisfy the requirement made by a constable, one of many medical or scientific defences may be available.
One straightforward statutory defence relates to the fact that a constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution. Where the court finds that the constable failed to give that warning an acquittal should follow.
Further recent examples of defences successfully argued by us in 2014 include:
- Reduced lung capacity – where a heavy smoker made genuine attempts to satisfy the requirement but, due to subsequent medical examination following our advice, was found to have severely reduced lung function impeding his ability to provide a sample of breath. The court, finding that he had a reasonable excuse i.e. an inability to provide the evidential specimen of breath, acquitted our client.
- Incapacity – having been involved in a road traffic collision, a client was found to have insufficient capacity to understand the warning given by the constable, which subsequently resulted in him failing to provide a specimen of breath.
- Unreliable breath-testing instrument – an evidential breath-testing instrument was found to have been faulty and removed from service just days after our client tried unsuccessfully to provide a sample of breath for analysis. The case against our client was discontinued.
Our Drink Driving Solicitors And Defending Drink Driving Offences
Our drink-driving solicitors defend many cases and we often win those cases in light of our arguments being entirely valid. We have never been criticised by a trial or appeal court for bringing a case to court without any prospect of winning. If we proceed to trial it is always on the basis that we expect to win.
If a plea of guilty is advisable, we will make that decision as soon as possible and forward that plea to the court in order to preserve as much credit as possible for our client. An example of when this situation is most likely to occur would be where two similar offences have been committed in a very short space of time and each reading is particularly high and likely to reach the custody threshold. We will not gamble in such sensitive cases with our client’s liberty. Contact us today for further advice and a free initial consultation call.