My husband is an alcoholic. He was recently stopped for drink driving by the police and they say he was 4 times over the legal limit? We are out of our mind with worry that he could go to prison. He’s not working at the moment and I can’t afford to pay for a solicitor. Will he go to prison and what will a solicitor cost?
Firstly this is a serious offence. Your husband should, if possible, instruct a solicitor to represent him. We would be happy to offer an initial interview to discuss the case in more detailed and thereafter provide a fixed fee quote.
I have to say that a custodial sentence in these circumstances is a real possibility. The court’s sentencing guidelines indicate that custody is appropriate for readings of over 116 milligrams of alcohol in 100ml of breath. The legal limit is 35milligrams. Therefore four times the legal limit would be 140 milligrams. It is rare to come across readings of over 150 milligrams so your husband’s reading is at the top end of what the court’s are accustomed to dealing with. On this basis a custodial sentence may well be imposed but this will very much depend on the mitigation put forward in court on his behalf. He needs representation with someone with lots of experience in dealing with cases like this as this could make a difference.
Legal Aid is likely to be available depending on your joint income. Only solicitors with a franchise and criminal defence contract are able to offer legal aid so be careful who he instructs.
My son was involved in a serious car accident, he was the only person in the car and no other vehicle was involved. He was badly injured and admitted to intensive care, after regaining consciousness 2 days later the only memory he has from the day of the accident was going to work in the morning, the accident itself happened later that evening.
At some point he was arrested for drink driving, he has no recollection of this and we have not heard from the police despite the accident being nearly a month ago, is there a time limit in which the police can charge him, and are the police allowed to use blood taken whilst he was in hospital as evidence?
The Road Traffic Act 1988 enables the police to ask a medical practitioner at the hospital to take a blood sample from an unconscious patient without the patient's knowledge or consent providing certain criteria are satisfied. However, before they are then able to subject that sample to laboratory analysis and rely on it in evidence to prove a drink driving allegation they must obtain retrospective consent to do so from the patient. It may be that sometime during the period that your son has no memory of he has, unwittingly, provided his consent to the sample being taken and tested. The question may then arise as to whether your son had the mental capacity to give his informed consent in view of his medical condition at the time. This is likely to require some evidence from the medical practitioner's responsible for his care at the time.
When I was 16 I was convicted of drink driving, a blood sample was taken to provide my alcohol reading, I've heard recently that parental consent is needed to take blood from a minor and that was not given. On these grounds could I get the conviction over turned?
Am I required to re-take my driving test after a ban for drink driving?
You do not need to re-sit your driving test once the ban is over. However, you must reapply to the DVLA for the return of your licence before you can drive again. If you are considered a high risk offender then the DVLA will insist that you undergo a medical with one of their approved medical experts before they will return your licence. A 3 year ban and a community order as you describe sounds like a very harsh sentence if you were only 10mg in breath over the prescribed limit. A 3 year ban is imposed for offenders with a similar previous conviction within the last 10 years or who have a very high reading. High risk offenders are those with two convictions in 10 years or who had a high reading or who failed to provide a specimen.
Could you please tell me the minimum penalty for Drink Driving, Reckless Driving and Driving without insurance on a provisional licence?
I am a newly qualified driver and have just had my licence revoked due to a drink driving offence, I received a 12 month ban and no points. I have been told I need to re-apply for my licence but do not need to re-sit my test, is this correct?
I am an Irish citizen with an Irish driving licence, whilst working in England I have been charged with drink driving. I intend to contest this charge, however if I lose my Court case as an Irish citizen will I be banned from driving in England?
I am going to court charged with drink driving and intend to plead guilty what will the likely sentence be?
The Magistrates Courts Association guideline sentences for drink driving offences are as follows:-
| BREATH | BLOOD | URINE | DISQUALIFY NOT LESS THAN | GUIDELINE |
| 36-55 | 80-125 | 107-170 | 12 MONTHS | B |
| 56-70 | 126-160 | 171-214 | 16 MONTHS | C |
| 71-85 | 161-195 | 215-260 | 20 MONTHS | C |
| 86-100 | 196-229 | 261-308 | 24 MONTHS | CONSIDER COMMUNITY PENALTY |
| 101-115 | 230-264 | 309-354 | 28 MONTHS | |
| 116-130 | 265-300 | 355-400 | 32 MONTHS | CONSIDER CUSTODY |
| 131+ | 301+ | 401+ | 36 MONTHS |
The maximum sentence for drink driving is 6 months imprisonment.
Two convictions for drink driving within a 10 year period means a minimum 3 year disqualification.
Failing to provide a breath test (Code DR70 or DR30)
Penalty - Fine - up to Level 5 (£5,000) and/or 6 months imprisonment.
Disqualification mandatory unless the Defendant can show he had no been and had no intention of driving whilst over the prescribed limit. The Magistrates guidelines recommend a minimum period of disqualification of 2 years.
Mandatory 3 year ban for second offence within 10 years.
Driving/Attempting to Drive with excess alcohol (DR10
Penalty - Fine - up to Level 5 (£5,000) and/or up to 6 months imprisonment
Mandatory disqualification for at least 12 months for first offence
Mandatory disqualification for at least 3 years for second offence within 10 years.
Being in charge of a motor vehicle with excess alcohol (DR40)
Penalty - Fine - up to Level 4 (£2,500) and/or up to 3 months imprisonment
Either a discretionary disqualification or 10 penalty points on your licence.
Penalty - Fine - up to Level 5 (£5,000) and/or 6 months imprisonment.
Mandatory disqualification for at least 12 months for first offence (18 mo
Mandatory disqualification for at least 3 years for second offence within 10 years
After being in charge refusing to provide samples for analysis (DR60)
Penalty - Fine - Level 4 (£2,500) and/or 3 months imprisonment
10 penalty points on your licence
Disqualification is at the discretion of the Court
I was recently returning from a party when the police stopped me. I’d had a couple of drinks and thought I might be close to the limit. I tried to delay providing a sample to allow time to sober up. However the police then arrested me. Is this allowed? By the time I was arrested and taken to the station I was very angry and refused to give any breath test at the station as well.
Under section 6(5)(b) of the Road Traffic Act 1988 a policeman has the power to arrest a person who fails to provide a specimen of breath when required to do so in pursuance of this section and the constable has reasonable grounds to request a sample.
Unfortunately if found guilty of the offence the guidelines suggest a 2 year driving ban which is more than the minimum 12 months for drink driving.
There is however a statutory requirement on the police officer to warn the accused that he will commit a crime unless he provides a sample. This is a strict requirement and one that is not always respected by the police. In addition the court must be satisfied that the accused understood the warning and consequences of failing to provide. Our lawyers have won cases like yours on this basis. We suggest you have an interview with one of our experts to investigate your case more fully.
I recently slept in my car after a house party. I was woken by a policeman knocking on my window who asked me to provide a breath sample. I failed and was arrested. At the police station I was breathalysed again and I tried to explain that I was not driving and had no intention of doing so until I had sobered up. They have charged me with Being Drunk in Charge of a motor vehicle. Where do I stand?
In accordance with the Road traffic Act 1988 (as amended) you will have committed an offence if you either:-
- drive or attempt to drive on a road or other public place; or,
- are in charge of a motor vehicle while on a road or other public place; and
- You are under the influence of drink or drugs.
Therefore you can see that you can commit an offence by merely being in charge of a motor vehicle. Being “in charge” has a very wide definition and can include circumstances when you’re not even sat in the car at all. It would seem that on the facts you were legally in charge of the vehicle assuming you were in possession of the keys.
There is a defence if you can show that there was no likelihood of driving while you remained unfit to do so. The burden of proof is on you to prove this but you will only need to prove this on the balance of probabilities as opposed to beyond all reasonable doubt. We’d strongly advise you to obtain a report from a forensic expert to confirm the time at which you would have been back below the legal limit. If you can establish that there was no likelihood of you driving before this time then the defence may succeed.
This is obviously a serious allegation and although you may see it as unfair there is a risk you can be found guilty in these circumstances. You should seek urgent advice.
I have been charged with drink driving. I gave the police a specimen of breath and my reading was 48 micrograms. However, I have since been told that they should have given me the opportunity to give blood. Is this right?
Under section 8(2) of the Road Traffic Act 1988 if you blow between 40 and 50 milligrams of alcohol per 100 millilitres of breath in the lowest of your two police station breath tests you should be given the option of providing a further sample in accordance with section 7(5) of the Road Traffic Act 1988. That is to say, the police should offer you either a blood test or a urine test which, if provided, would replace the breath sample. If this requirement is not complied with then you could have an absolute defence to the charge against you.
I would recommend that you arrange an interview with one of our expert motoring solicitors. Obviously this is a serious offence and you will face a mandatory disqualification for at least 12 months if you are found guilty of drink driving. One of our solicitors could review the evidence against you and advise you accordingly
I have to go to court for a drink driving offence and this will be my second conviction within the last 10 years. Last time I was given a 12 month ban for a reading of 56mg and this time my reading is 73mg. I am not expecting to avoid the 3 year minimum ban but I am hugely worried about the possibility of a custodial sentence.
I assume from the limited information in your email that you admit this offence and intend to plead guilty. If so you will be given credit in the form of a 1/3rd reduction in any punishment if you plead guilty at the earliest opportunity. That said, I'd recommend that you seek legal advice before tendering your plea. A road traffic lawyer would be able to look at the evidence and tell you what to do after checking, for example, whether the police have followed the correct procedures and if the breath results were taken correctly and can be relied upon.
You're quite right, a second conviction of this type within a 10 year period attracts a minimum 3 year disqualification. Beyond that the Magistrates Court sentencing guidelines suggest that a reading in breath of 73 mg should attract a band C fine. As a guide this can equate to around 150% of your weekly take home pay. However, these are guidelines only and the court will judge each case and each defendant on their own merits. The court will take into account other factors, including previous convictions. Usually, the sentencing guidelines suggest that a custodial sentence should only be considered at readings of 116mg and above. The question is whether, in your case, your previous conviction will be a serious enough factor for the court to up the sentence to one of imprisonment. It is impossible to say with any certainty as this will depend on the extent of any aggravating features of the case and the mitigation that is put forward on your behalf. I understand that you were pulled over as part of a routine check rather than due to erratic driving or being involved in an accident, it's almost a full ten years since the last drink driving conviction and you have had no other convictions in the intervening period and, by the sounds of things, you fully co-operated with the police. All of this will help your case as will any personal mitigation that can be put forward, for example your family and employment situation. If the Court felt that a fine was not sufficient there are a range of penalties that they can now consider as an alternative to an immediate custodial sentence, such as a suspended sentence or community order with unpaid work or supervision.
I received a 3 year ban for being drunk in charge of a vehicle. Whilst serving my ban I drove again and have received a further 2 year ban, is there anyway to reduce this ban?
I was disqualified from driving for 2 years following an offence of drink driving. My ban is due to expire next month. Is my licence returned to me automatically or do I have to sit a re-test?
The DVLA will not re-issue you with a driving licence automatically. You must apply for a new driving licence using form D27. Unless the Court specifically ordered you to do so, you will not have to sit a re-test but the DVLA are entitled to make medical enquiries before issuing a new driving licence if you have:
- been disqualified for driving, or being in charge of a vehicle, when the level of alcohol in the body equalled or exceeded:
- 87.5 micrograms per 100 millilitres of breath, or
- 200 milligrams per 100 millilitres of blood, or
- 267.5 milligrams per 100 millilitres of urine
- two disqualifications within the space of 10 years for drinking and driving, or being in charge of a vehicle whilst unfit through drink
- one disqualification for refusing or failing to supply a specimen for analysis
I was involved in a road traffic accident and asked to give a breath sample by the police. Although the Officer gave me about 8 attempts at the road side I simply could not provide a breath sample because I was suffering from a panic attack. I was arrested and taken to the police station where, despite being given three further opportunities to provide a breath specimen it failed to register because I was hyperventilating. I was then placed in a police cell where the panic attack worsened. The police nurse came to see me to check me over and could see I was in obvious distress. Despite all of this I was never asked to provide a urine or blood sample, something I am sure the nurse could have done? I now have a court date for failing to provide a breath specimen. As my reason for failing to give a sample can be verified by the police nurse and the police did not request any other samples (urine or blood) I would like advice on whether I am likely to be found guilty and if so what sort of punishment to expect?
A person can be guilty of Failing to Provide a Specimen without necessarily refusing. Providing the police request for a specimen of breath was bona fide then failure to provide either a breath specimen at the road side or two evidential breath specimens at the police station is an offence. It could be alleged that you have committed two separate offences in your case, once by failing at the road side and a second by failing at the police station. A conviction for failure to provide a specimen of breath carries up to 6 months in prison. In addition there would be a mandatory disqualification. Current Magistrates Court sentencing guidelines suggest the ban should be for not less than 24 months.
However, you have a defence which, if successful, will avoid this. You may be able to establish that you had a "reasonable excuse" for not providing. Once you assert that you had a reasonable excuse, providing it is capable in law of amounting to such, it is then for the prosecution to prove beyond all reasonable doubt that there was no reasonable excuse. The leading case says that for circumstances to amount to a reasonable excuse it must arise out of a physical or mental inability to provide a specimen or a substantial risk to health in it's provision. In your case you seem to suggest that your panic attack and severe hyperventilation meant that you were physically incapable of providing a specimen and that the police officer acknowledged you were trying your best. This may be linked to post traumatic stress following your accident. If the court accept this argument then you ought to be found not guilty.
The police are not obliged to offer you the option of blood or urine in a case like this, although they usually do where Defendants have a genuine reason for being unable to provide breath. The fact is they could have done had they wanted to but chose not to.
Case law is littered with examples of Defendants being found not guilty of failing to provide breath specimens for reasons similar to yours. To maximise your prospects of success you will need to rely on persuasive medical evidence. Firstly, you ought to obtain a statement from the nurse who treated you in the police station and possibly other medical evidence in support. If there are any other instances where you have been treated for panic attacks in the past then evidence of these may also help. Strong medical evidence is the key to the success of your case as well as an expert motoring lawyer to gather your evidence and argue your case for you.
I was involved in a car accident after consuming 2 alcoholic drinks, I panicked and returned home. Once at home I consumed more alchohol, the police then arrived and performed a breath test which I failed. Is it possible to prove that despite failing the breath test at home that at the time of the accident I was under the limit?
