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  • Rai Gill

Driving over the Limit: Alcohol

Updated: Jan 23

There are two main offences that concern excess alcohol driving both provided for in the Road Traffic Act 1988:


  • Driving, or being in charge of a motor vehicle, when under the influence of drink (section 4); and

  • Driving, or being in charge of a motor vehicle, with alcohol concentration above the prescribed limit (section 5).


The first of these offences (section 4) is the less commonly charged as most cases where the offence may apply can be suitably charged under the more definite section 5. As is shown below, this is largely due to the broader, more evidentially onerous, nature of section 4.


The Offences


Driving under the Influence

There are two offences under section 4: driving or attempting to drive when under the influence of drink, and being in charge of a vehicle when under the influence of drink. If charged under section 4, therefore, the Prosecution will need to prove that:


  1. You were driving or attempting to drive a vehicle; or

  2. Were in charge of a vehicle on the road; and

  3. You had consumed alcohol which was still in your system; and

  4. The alcohol rendered you unfit to drive.


Case law provides flesh to some of these terms:


In charge – A question of fact dependent on the circumstances, to be determined on a case-by-case basis. A person is deemed to be in charge of a vehicle until he hands that charge on to someone else.


Attempts to drive – That steps have been taken to drive the vehicle, beyond the merely preparatory stage, which are a part of the actual process of causing the vehicle to move.


Unfit to drive – When proper control of the vehicle is impaired. This is again fact-dependent, but may be demonstrated through behaviour or the provision of a specimen. Expert medical evidence may be given to determine the question of impairment.


However, there will be a defence to the charge where it is proved that there was no likelihood of actually driving when you were unfit to drive through drink.


A charge under section 4 will therefore be heavily dependent on the circumstances of the case, and will need to be shown to prove that an individual was not only in drink, but also unfit to drive.


Driving when above the Limit

An offence under section 5 is similar to driving under the influence, with the addition that it is strictly based on whether the alcohol measured exceeds the prescribed limit. As such, the Prosecution would need to prove that:


  1. You were driving or attempting to drive a vehicle; or

  2. Were in charge of a vehicle on the road; and

  3. The level of alcohol in your system exceeded the prescribed limit.


The limits are set by statute, and a specimen must be taken so that the concentration of alcohol can be measured. The specimen can be either breath, blood or urine (breath is the most usual). The limits are as follows:


  • 35 microgrammes of alcohol in 100 millilitres of breath

  • 80 milligrammes of alcohol in 100 millilitres of blood

  • 107 milligrammes of alcohol in 100 millilitres of urine


In practice, however, prosecutions are not brought unless the reading is at 40 microgrammes or more (when measuring breath with an intoximeter).


A constable is required to take two samples of breath, and the lower reading is the one that is used for the purposes of any prosecution. Failure to provide a specimen when requested is also an offence under section 7(6) of the Road Traffic Act 1988.


Procedure


Both offences are summary only, meaning they will be tried in the magistrates’ court and the case decided either by a lay bench of (usually) three magistrates’ or a district judge sitting alone.


As the offence is punishable by a term of imprisonment, the defence can be funded by way of legal aid (on application) subject to eligibility on means and the interest of justice criteria.


Penalties


Driving or Attempting to Drive (sections 4 and 5)

The maximum sentence is six months’ imprisonment or a level 5 fine or both.


Additionally, the court is obliged to endorse the defendant’s driving licence upon conviction with between 3 and 11 points.


The court must then impose a period of disqualification from driving. For a first offence, this can be for up to three years. If a second (or further) offence (previous offences can be any relevant offence, e.g. drink driving) the ban can be for up to five years.


Being in Charge (sections 4 and 5)

The maximum sentence is three months’ imprisonment or a level 4 fine or both.


Endorsement is obligatory and set at 10 points.


Disqualification is discretionary and may be for up to 12 months.


For both offences, the court may also offer as part of any sentence a statutory rehabilitation. This is a rehabilitation course for drink-driving which, if offered and accepted, is self-funded; if successfully completed, the court can order that the disqualification period be reduced by up to 25%.


Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.


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