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We often see headlines about celebrities who’ve been charged with offences such as drink-driving. This is an area of law riddled with technicalities and ambiguities that a self-representing defendant should not be expected to understand.

The alcohol limit for driving is 35 microgrammes of alcohol in 100 millilitres of breath. For the police to determine the level of alcohol in a driver’s breath, they will ask the driver to take part in a roadside breath test. If the test concludes that the legal limit has been exceeded, the driver will be arrested and detained so a further test can be conducted at the police station. Not complying with the request won’t necessarily avoid arrest or conviction because, if the police aren’t unable to conduct the test, the driver could be charged with failing to provide a specimen of breath or, in certain circumstances, a specimen could be taken from their blood or urine instead.

On occasion, the driver may claim to be physically unable to provide a breath specimen: one possible defence for ‘failing to provide’ is that the suspect had a “reasonable excuse” – for example, if lung function is hindered by a medical condition such as asthma.  In cases such as this, expert evidence should be sought by the defence.

Driving whilst unfit

Having a reasonable excuse for failing to provide a sample may not, however, prevent the driver from being charged with an offence.  If there’s evidence that they are unfit through drink or drugs (but there is a lack of medical evidence because a specimen could not be taken), the driver may nonetheless be prosecuted for the offence of “driving whilst unfit”. For example, if a driver gets out of their vehicle at the scene of a collision and admits to the police that they’ve been drinking alcohol and that they were driving at the time of the collision but they then fail to provide a specimen, there may be a strong case for the charge of driving whilst unfit.

If convicted of failing to provide a specimen or driving while unfit, the starting point for the court is to impose a mandatory minimum disqualification of 12 months. For understandable reasons, the law treats both offences with equal severity; not to do so could encourage drivers to refuse to cooperate to receive a more lenient punishment.

If, after completing the breath test, the suspect is believed to be over the legal limit, the prosecution will consider whether they can prove that the defendant was driving the vehicle. This isn’t always straightforward. Driving has been judicially defined as “the use of the driver’s controls for the purpose of directing the movement of the vehicle.”

Drunk in charge of vehicle

If the prosecution is unable to prove the defendant was driving, an alternative offence of being in charge of a vehicle while over the alcohol limit could be considered. The definition of ‘in charge’ is more ambiguous and has not been judicially defined, though in DPP v Watkins [1989] 2 W.L.R 966, the court suggested that if you are “in control” of a vehicle, you are considered to be in charge of it.  That invites the question of what ‘in control’ means. For example, if a suspect got into the driver’s seat of a vehicle and put the keys in the ignition to put the heater on in an attempt to warm up, they are likely to be considered by a court to be ‘in control’ and therefore ‘in charge’ of that vehicle. It was reported earlier this year that TV star Katie Price was found guilty of being drunk in charge of her Range Rover when she was found in the back seat after a collision. Her evidence was that someone else had been driving the vehicle and that they had fled following the collision. The prosecution could not prove she was driving the vehicle but the court found her guilty of being drunk in charge.  As reported, the facts of this case do not obviously support a finding that Ms Price was “in control” and she may be considered unlucky to have been convicted.

Driving disqualifications for drink-driving

Despite the similarities between drink-driving and being drunk in charge, the potential impact on a defendant’s driving licence is very significant. The starting point for a court sentencing someone for drink-driving is a mandatory 12 months disqualification from driving. The starting point for being drunk in charge of the same vehicle, having consumed the same amount of alcohol, would be 10 penalty points.Therefore it might be possible, with a clean licence, to avoid disqualification altogether. For this reason, a defence solicitor who encounters an offence of drink-driving should always consider whether the prosecution can prove that their client had been driving the vehicle before advising on a plea.

The technicalities do not stop there. If someone has a ‘special reason’, they can avoid the mandatory disqualification that follows a conviction of drink-driving. For example, if a driver’s drink was tampered with and they did not know they had exceeded the alcohol limit, they would be guilty of an offence but there would be grounds for arguing that special reasons applied and they should not receive the mandatory disqualification.

As described above, there’s a great deal of complexity in this area of law and decisions to charge drivers are not always made with a full understanding of the numerous technicalities. Seeking specialist legal advice could avoid an unnecessary disqualification.

For  more information on any of the issues raised in this article or if you have been charged with a motoring offence and would like to speak to one of our solicitors, contact Jess Murphy by emailing [email protected] or calling 0117 904 5840.