Drink Driving: What are the Limits?

As the festive season approaches, police forces across the country are gearing up for the annual drink driving crackdown.  In particular, West Yorkshire Police have launched a new “dob in a drink driver” scheme this Christmas.[1]  The current drink driving limits for England, Wales and Northern Ireland are 35 micrograms of alcohol in 100ml of breath; 80 milligrams of alcohol in 100ml of blood; or 107 micrograms of alcohol in 100ml of urine.[2]  But what do you have to do to be convicted of drink driving?  Do you actually have to drive a vehicle, or can sitting in the driver’s seat be sufficient?

The main drink driving offences derive from s5 Road Traffic Act 1988.  According to this section, you could be found guilty of drink driving if you engage in any of the three forms of conduct below whilst you are over the drink drive limit:

1. Driving a motor vehicle on a road or other public place;
2. Attempting to drive a motor vehicle on a road or other public place; or
3. Being in charge of a motor vehicle on a road or other public place.

It is also worth noting that, under s4 Road Traffic Act 1988, it is possible for you to be convicted of drink driving if you are deemed to be “unfit to drive through drink or drugs” when you engage in any of the above activities, regardless of whether it can be proven you were over the drink drive limit at the relevant time.  It is also important to note that the prohibition on drink driving extends beyond the public highway: you can be prosecuted if you drink drive in a pub car park, for example.

Let’s look at the three forms of conduct in more detail.

1. Driving a motor vehicle on a road or other public place

The most well-known drink driving offence is simply driving whilst over the limit.  But what constitutes ‘driving’?  This appears to be a simple question, but the term ‘driving’ has a very specific definition in this context.  The Court of Appeal held that you are driving a vehicle if you are using “the driver’s controls for the purpose of directing the movement of the vehicle”.[3]  This definition includes cases where a defendant coasts down a hill with the engine turned off with the gearbox in neutral, or where a defendant steers a car whilst his friends push, or where a defendant steers a car whilst being towed by another vehicle.  Similarly, steering a vehicle from the passenger seat for a length of time can also constitute ‘driving’.[4]  It should be emphasised that these are only a few examples: the definition is broad enough to encompass almost all forms of conduct which involve moving the vehicle.

However, merely sitting in the driver’s seat of a stationary vehicle, with hands on the steering wheel and the engine turned off, does not amount to driving[5] – although it may amount to being in charge of the vehicle (see below).

2. Attempting to drive a motor vehicle on a road or other public place

Attempting to drive a vehicle whilst over the drink drive limit is also an offence.  The law on criminal attempts is complicated, however a defendant will be guilty of an offence under s5 Road Traffic Act 1988 if he is (a) over the drink drive limit; (b) intends to drive a motor vehicle on a road or other public place; and (c) does an act which is “more than merely preparatory” to the act of driving.

To use an example, in Mason v DPP[6] it was held that a defendant who opened the car door after expressing an intention to drive, but was prevented from actually driving, was not guilty of attempting to drive whilst over the limit because the act of opening the door was held to be merely preparatory to the act of driving.  However, it is unclear how the law classifies other acts, such as putting a key into the ignition and/or starting the vehicle.

3. Being in charge of a motor vehicle on a road or other public place

Finally, it is also an offence to be “in charge” of a motor vehicle whilst over the drink drive limit.  The phrase “drunk in charge” is used a lot on television, but what does it actually mean to be “in charge” of a vehicle?

Being “in charge” is best thought of in terms of responsibility.  If a man goes to a pub and parks his car outside whilst he gets drunk, he remains “in charge” of (or responsible for) the vehicle until he puts into the charge of someone else (by giving the keys to a friend, for example).[7]  Furthermore, in one specific case, it was held that if a defendant owns the car in which he is sitting, has the ignition keys in his hand, and does not suggest that another person was in charge of the car at that time, it cannot be said that he was not “in charge”.[8]  It is fair to say that this definition is very broad.

However, even if a defendant was “in charge” at the relevant time, it may still be possible for him to avoid conviction if he is able to raise a defence.  Of particular relevance is the defence contained within s5(2) Road Traffic Act 1988 which provides that a defendant is not guilty if he can prove on the balance of probabilities that, taking into account all the circumstances, there was “no likelihood” of him driving over the limit.  It is important to note that this particular defence only applies to cases where the defendant is accused of being drunk in charge: it does not apply to defendants who attempt to drive whilst over the limit, or to those who actually drive whilst over the limit.

Sentencing

The consequences of being convicted under either s4 or s5 are identical, but the penalties for the “in charge” offences are less severe than those for “driving” or “attempting to drive”.  If you are convicted for driving or attempting to drive whilst you are either over the limit or unfit to drive, you could receive up to 6 months imprisonment and/or an unlimited fine.  The court must also disqualify you from driving, and must give you between 3 and 11 penalty points, unless there are “special reasons” which suggest disqualification would not be appropriate in an individual case.  The court also has the power to order forfeiture of your vehicle.  By contrast, if you are convicted for being in charge of a vehicle when you are either over the limit or unfit to drive, you can receive a maximum of 3 months imprisonment and/or a level 4 fine (currently £2,500).  However, the court has discretion to order disqualification in addition, and in any event it must give you 10 penalty points.

It is worth noting that these sentences are maximums: with the experience and expertise of one of our barristers on your side, you could receive a much more lenient sentence.  For example, in R v H [9] we represented a client who was accused of driving whilst almost three times over the limit.  Having heard a robust plea in mitigation from one of our barristers, the court passed a sentence of a £180 fine: the Magistrate said that Mr H would have received a much more severe sentence were it not for his barrister’s mitigation.

It is also possible that we could help you avoid a conviction in its entirety: in R v M [10] our client was caught driving whilst over twice the limit, but our team’s analysis revealed that the police had not followed the correct procedure for requesting a blood sample.  This procedural error, and the fact that one of our barristers was able to spot it, resulted in our client’s acquittal.  The Magistrates also made a Defence Costs Order, allowing our client to be reimbursed for a large proportion of his costs.

If you are accused of drink driving over the festive period (or any other road traffic offence) please call us for advice: you may be able to escape a conviction.

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The contents of this article should not be relied upon in isolation.  Each case is fact specific and this article should not be treated as legal advice or as a substitute for legal advice.