Drink Driving Offence

About Drink Driving Offences

Drink driving or driving or attempting to drive with excess alcohol is a serious offence for which you can go to prison. However, it would be extremely unusual for the court to send someone to prison on a first drink driving offence unless someone was seriously injured.

Drink driving carries a mandatory driving ban of at least 12 months unless you can put forward a successful special reasons argument. Being drunk in charge is a less serious offence but it still carries a potential prison sentence.

Other names for drink driving DUI, driving under the influence, driving with alcohol above the prescribed legal limit, excess alcohol, drunk drive.

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What happens in drink driving cases?

If you have been stopped by the police on suspicion of drink driving, it is likely the first thing that will happen is that you will be breathalysed at the roadside. If you fail the roadside breath test, you will be arrested and taken to the police station. The roadside breath test is only used to confirm the police officer’s reasonable suspicion that you were driving while over the limit. The roadside reading cannot be used as evidence of your drink driving. An evidential reading will be requested at the police station. You will be asked to provide two samples of breath, and the lower of the two readings provided will be taken as the level of alcohol in your breath. If there is a reason why breath cannot be provided, you will be asked for blood or urine. You cannot choose which type of sample to give.

If you would like to know more please contact us today.

Drink driving limits

The 2020 legal limit in England is:

  • 35 microgrammes of alcohol in 100 millilitres of breath (with a policy in place for a prosecution to begin at 40 microgrammes);
  • 80 milligrammes of alcohol in 100 millilitres of blood;
  • 107 milligrammes of alcohol in 100 millilitres of urine.

Drink driving limits are based on the level of likely impairment. The sentence imposed often depends mainly (but not exclusively) on the level of alcohol in a person’s system.

If you would like to know more please contact us today.

Drink Drive Rehabilitation Courses

If you are disqualified for 12 months or more, the court may offer you the drink-drive rehabilitation course. If you complete this successfully, it will reduce your drink driving ban by 25%.

For more information please see our FAQs on drink driving offences below.

Drink Driving Summary


Legal Definition

You commit an offence if you drive or attempt to drive (or are in charge of) a motor vehicle on a road or other public place, and; that you do so after consuming so much alcohol that the proportion of it in your breath, blood or urine exceeds the prescribed limit.

Main Legislation

S.5 of the Road Traffic Act 1988


Maximum Penalties

Driving Penalties:
If driving or attempting to drive – a disqualification of at least 12 months.
If in charge – 10 penalty points or a ban, usually of up to 12 months

If driving or attempting to drive – unlimited
If in charge – £2,500



Magistrates Court only (unless an appeal)

Imprisonable? If driving or attempting to drive – up to 6 months’ imprisonment. If in charge – up to 3 months’ imprisonment.

Do you need help with a drink driving offence?

Talk to us today about how we can help you.

Relevant Cases

Drink Driving Offence FAQs

What defences are there to drink driving?

If you have a possible defence to drink driving, we’ll find it. Below is a summary of the types of defence which we have used successfully.

No evidence that you were driving or attempting to drive

If the police didn’t see you drive or attempt to drive a vehicle, they may not be able to prove you drove the vehicle. This can depend on whether there are other witnesses and the strength of their evidence. If the police cannot prove you drove the vehicle, then you should not be convicted of drink driving.

Insufficient evidence that the alcohol level was above the limit at the time of driving

If there is an issue with the equipment used to analyse the specimen, then the reading produced may be unreliable. If you give a breath reading, you should be offered a copy of the printout produced by the machine. The police do not have to ensure you take the printout, but they do have to offer it to you. This is important as it is the evidence of the machine’s calibration as well as the reading. Without this, the police may be unable to adduce evidence of a reliable reading.

Technical Defences

There are also several more ‘technical defences’ such as if the police fail to give you the statutory warning. The statutory warning is wording that makes clear that you are required to provide a specimen and that if you do not provide a specimen, you could face prosecution for ‘failing to provide a specimen’. This requirement must be made either at a police station or hospital and it must be made by a police constable in uniform. The police officer must also have reasonable suspicion that the person that an offence was being committed or that the person was involved in a road traffic accident.

Evidence that the level of alcohol was below the limit at the time of driving
If you’ve consumed alcohol after driving the vehicle but before you were breathalysed, then you may have a defence. This is often referred to as the ‘Hip Flask’ defence. The police should ask you if you have consumed alcohol after driving and can affect your credibility if you do not mention this at the time.

Unless your case is that you had not drunk any alcohol before driving, an expert witness would usually be required to provide a ‘back calculation’ to demonstrate that the later drinking is what put you over the limit.

Other options

Medical reasons for being over the limit are not generally considered defences. These fall under the category of Special Reasons. This means that you are technically guilty, but there are circumstances which the court should be aware of which can give them discretion over the sentence imposed.

If you believe that you have a defence to drink driving, or that special reasons may apply, you really should discuss this with a solicitor before taking it any further.

How much can I drink before driving?

One of the most frequently asked questions is “How many units can I drink and still be legal to drive”. Everyone is different so there is no way of calculating this easily. It depends on several factors including your body weight and makeup, how quickly your body metabolises alcohol and whether you drink regularly.

We use expert witnesses when a calculation of this nature is required.

Beware the old “two-pint rule” as you may still be over the legal driving limit.

When can the police require me to give a breath sample?

The police can stop motorists at random, but they cannot require breath tests at random. There must be something which gives rise to a reasonable suspicion that the driver has been drinking. In practice, the police usually say that it was the smell of alcohol on the motorist’s breath which gave rise to that suspicion. There may also be mentions of your demeanor such as ‘glazed eyes, slurred speech, unsteady on your feet’.

What if I don't provide a breath sample?

If you fail without reasonable excuse to provide a breath sample, you are guilty of an offence. If you fail to provide at the roadside, you face 4 penalty points being endorsed on your licence. If you fail to provide at the police station, you risk similar penalties to those which would have been imposed had you provided a sample which was above the limit. Of course, they won’t know what your real limit is, but if you appear intoxicated, the police will be sure to make a note of this on the documentation, and the prosecutor is likely to mention their comments at court.

If you want to put forward a defence that you couldn’t give the sample, you will usually need to be able to back this up with medical evidence.

The guidelines for a first offence of failing to provide a specimen (without reasonable excuse) suggest the following penalties:

Bottom end

A fine and a ban of 12-16 months


26 weeks’ custody and a ban of up to 36 months

Previous offences

The penalties are increased significantly if you have committed a drink or drug driving offence within the previous 10 years. In that case, the minimum period of disqualification is 36 months.

Can I choose to take a blood or urine test instead?

No, this option was removed in April 2015. It was previously available as an option for those who blew a reading of between 40 and 50. You should still be offered blood or urine as an alternative if the police consider that you may have a ‘reasonable excuse’ not to provide a sample of breath. The police decide whether to request you to provide blood or urine.

If you have a reasonable excuse for not providing a sample you may have a defence. If you do not mention the reason for not providing at the time, it can make it more difficult to establish a defence. Depending on the circumstances, it may still be possible to raise a defence, particularly when you did not know that you had the reason at the time.

Can I challenge the accuracy of the intoxilyser?

It is possible is some cases but not all. If you would like us to ascertain whether the police have made a mistake somewhere or to provide evidence that the intoxilyzer is inaccurate, then we are more than happy to do so. You need to be aware that we may or may not find something which can be used in your defence and if there is an issue with the intoxilyser machine, an expert witness will usually need to become involved.

The prosecution doesn’t have a duty to disclose all the evidence before you enter a plea, which means that at the very least, a not guilty plea has to be entered for the case against you to be disclosed. If you plead guilty at the earliest opportunity, you usually receive one-third discount on your financial penalty and if you subsequently change your plea to guilty at a later time, you’ll have lost some of your credit.

That’s not to say that you should plead guilty if there is insufficient evidence against you, but you must make an informed decision and are aware of the implications. We’ll do our best for you whatever you decide to do, and we promise to provide honest advice at all times.

What is the Drink Drive Rehabilitation Course?

The court has the discretion to offer this course to those convicted of drink driving offences. If completed by a certain date, it will reduce the imposed driving ban by 25%. For this reason, most people want the opportunity to attend a course. The court may not offer the course if they do not consider it appropriate. Sometimes it will not be offered to people who have completed a course before, but it will depend on the circumstances.

The course lasts 3 days with at least one week’s gap between each day. They vary in cost depending on the provider with some offering discounts for those who pay early.

If you want to go on a course, you will need to ask the court and confirm which provider you want to use. You can search for course providers here.

You don’t have to complete the course, but if you do not, you will have to serve the full length of the driving ban imposed.

Can I use Exceptional Hardship to avoid a drink driving ban?

No. Exceptional Hardship can only be argued to avoid a totting disqualification. That is when a person is going to reach 12 points or more within three years and faces a minimum six-month ban. It cannot be used to prevent a ban from being imposed where the disqualification is obligatory for the offence itself such as drink driving.


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