motoring offences
updated 07 October 2009

Drinking & Driving - The Facts       

Everybody in the pub thinks they are an expert on the drinking and driving laws, but here are the hard facts!! We hope you never have to worry about them.

When can the police require a breath test? Any person who is driving, attempting to drive, or in charge of a motor vehicle on the road, or in a public place (eg a pub car park or a garage forecourt), may be required by the police to provide a breath test, to ascertain whether they are over the prescribed limit of alcohol - 35 micrograms of alcohol per 100 millilitres of breath (or 80 milligrams of alcohol per 100 millilitres of blood).

The request must be made by a police officer, but note the officer does not have to be in uniform anymore to require a preliminary test (breath test), but he does have to be in uniform to administer it (unless after an accident then the police officer does not have to be in uniform for either the requirement or to administer any of the preliminary tests). The request can only be made if one of the following situations apply :-

1. the police officer has reasonable cause to suspect that you have committed, or are currently committing a moving traffic offence, or
2. if, having stopped, an officer has reasonable cause to suspect that the person driving/attempting to drive/in charge of the vehicle has consumed alcohol, or
3. the police officer has reasonable cause to believe that you were the person driving/attempting to drive/in charge of a motor vehicle which was involved in an accident.

So does that mean that the police can just stop your car if you are driving along and insist on giving you a roadside breath test? The answer is NO. They are entitled to randomly stop your car, but they can only insist on a breath test if they have reasonable cause to suspect you have committed a traffic offence, or have consumed alcohol (eg they can smell it on your breath), or they reasonably believe you have been involved in an accident (eg the description of your car matches that given by a witness).

What happens if the roadside test is positive, or you refuse, or you can't give the necessary sample? If any of these happen you will be arrested and taken to the police station. At the police station you will usually be asked to provide two specimens of breath for analysis (using approved evidential instruments either an Intoximeter EC/IR;  Lion Intoxilyzer; or Camic Datamaster). If the two readings differ then the police must rely on the lower reading. If the reading is over the prescribed limit then you will have committed an offence and you will be charged.

You do not have a right to insist on supplying a sample of blood or urine instead. If you fail to supply a breath specimen at the station you will committed an offence, unless you have a reasonable excuse. Being too drunk or unfit to supply the necessary breath specimen is NOT a reasonable excuse. A medical condition which prevents you from supplying enough breath for the machine to sample may be a sufficient excuse. If you have such a condition you must advise the police at the time.

The police may legitimately request that you provide a specimen of blood or urine as an alternative to a breath test, if :-

1. No automatic measuring device is available at the time of your arrest, or it is not working properly.
2. The offence involves drugs and the police officer has taken medical advice that your condition may be due to drugs.
3. The police officer making the request has reasonable cause to believe that breath samples should not be requested for health reasons 

What happens if it is close to the limit? If the lower of the two breath readings at the station is 39 micrograms or below, then you should be released either without charge or with a caution. If it is between 40 and 50 micrograms, then you MUST be offered the option of providing an alternative specimen of either blood or urine (if the police fail to offer you this option then you will have a defence to the charge). You should be asked which you would prefer, but it is up to the police to decide which one they offer you, unless, again, you have a medical condition which would preclude you from providing the necessary sample. The police cannot take a blood sample without your consent, but if this is the option offered and you refuse to consent then the police can rely on the breath sample they have taken.

If you are asked to provide urine they will ask you to provide two samples within an hour. If blood then this must be taken by a police surgeon, who will have to be called to the station. 

You have a right to have the second sample taken and you should always avail yourself of this right.

What happens if you are charged? If you are going to be charged you will have the charge read out to you and you will be cautioned about saying anything which may later be used in evidence. You will then be asked to sign the Charge Sheet and a copy will be given to you. You will usually then be bailed to attend at Court on a specified date - ie you will be free to go and must attend Court on the date and time given. You will not usually be allowed to drive from the station (as you would most likely be committing another offence), but you are free to drive until the date of your hearing when any ban that may be imposed will come into immediate effect.

If I get a ban can I get my licence back before the ban ends? A person disqualified for more than 2 years, may after 2 years, apply to the court that imposed the ban to have the remaining period of disqualification removed. They must appear in person and must satisfy the court that:-
1. They have committed no further road traffic offences during the 2 year ban, and
2. There is a good and adequate reason for the return of their licence (eg the chance of a new job, promotion, moving to a rural location and need a car [proof of successful alcohol abuse treatment may also be relevant in drink driving cases])

These are the relevant drink driving offences

Failing to provide a roadside breath test (Code DR70)
Penalty - Fine - up to Level 3 (£1,000)4 penalty points on your licence
Disqualification is at the discretion of the Court

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
10 penalty points on your licence
Disqualification is at the discretion of the Court

After Driving/Attempting to drive refusing to provide samples for analysis (DR30)
Penalty - Fine - up to Level 5 (£5,000) and/or 6 months imprisonment
Mandatory disqualification for at least 12 months for first offence (18 months  tends to be the norm as you are considered to have been trying to avoid being found guilty)
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

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