Being charged with drink-driving is a serious matter for anyone. If convicted, the defendant can face heavy penalties, including loss of driving licence, fines, costs and even imprisonment. If the defendant needs a driving licence for work, they could lose it, contributing to further major hardship.
Naturally, anyone accused of drink driving will want to try to avoid prosecution and serious sentencing. There are possible ways of getting away with it: see our drink driving loopholes page.
Drink Driving Offences
There are two possible offences you could be charged with, according to the circumstances. These are:
- Driving or attempting to drive while above the legal limit or unfit through drink
- Being in charge of a vehicle while above the legal limit or unfit through drink.
The first offence is self explanatory: you have been accused of driving, or attempting to drive, a vehicle whilst too intoxicated, or affected by drugs, to do so. However, just having control over a vehicle whilst intoxicated can also be a serious offence: see our 'drunk in charge of a vehicle' page for more information.
Most people in the UK are familiar with the breathalyser used by police when they test someone by the roadside. These portable devices are small, with disposable mouthpieces, and give a result in around a minute. They are called Preliminary Breath Testing machines, or PBTs. These machines are used for what could be called screening purposes to decide if someone is likely to be over the legal limit and may need to be charged. They are not precise in their measurements.
EBTs are Evidential Breath Testing machines and are used in Police stations. It is the results of these machines that are used as evidence in prosecution, not the readings of PBTs. In most cases when someone has been arrested for drink-driving they will be asked to take a PBT test. This consists of two samples of breath being given. It is the results of these machines that determine whether or not an offender is charged.
Challenging the results of PBTs and EBTs
It should not be surprising to anyone that the equipment used to gather evidence of drink-driving in a Police station is subject to the most stringent procedures, checks and standards. Machines approved for widespread use have undergone the most stringent trials and checks. After all, the reputation of the Police and the British Courts would be seriously tarnished if regular errors were found and prosecutions overturned.
The types of EBTs used by the Police have been approved by The Secretary of State in order to comply with the Road Traffic Act. If anyone wants to call into doubt the appropriateness of the type of machine it cannot be done through a court case for a specific case of drink-driving. It must be done through a Judicial Review, another type of case entirely.
When a case of drink-driving goes to Court it is assumed under the Road Traffic Act that the EBT equipment used was functioning correctly. This means there is freedom to raise doubt as to whether the EBT machine functioned properly, but it will be up to the defence to prove that such a doubt is valid.
Challenging Police procedure
The procedures which the Police need to follow are stringent and clearly laid down. There are several stages during which Police must follow procedure when dealing with someone they suspect of being under the influence of alcohol whilst driving or in charge of a vehicle. It is important to note that the vehicle does not have to be in motion; the driver simply has to be under the influence of alcohol whilst in charge of it.
How you can be stopped and breathalysed
When Police stop a driver randomly, this is quite legal. Police can stop a vehicle at random. They can only ask for a preliminary breath test using the PBT device if they have reasonable cause to suspect the driver is under the influence of alcohol.
What constitutes reasonable cause to suspect this is not complicated: it means they notice the vehicle being driven erratically or dangerously, or in a suspicious and unusual manner, for example extremely slowly and cautiously; they had smelt alcohol on the driver’s breath; have seen the driver exhibit signs of intoxication, such as slurred speech, bloodshot or glazed eyes, or unsteadiness; or they have received information that the driver has been drinking before driving the vehicle.
Police can stop and ask a driver to take a breath test if the driver has been involved in an accident or has committed a traffic offence. Failure to agree to a breath test could lead to arrest. As we have seen already there are two types of breath test the Police can ask for:
- preliminary using a PBT device “on the spot” which would be if they have stopped a driver or have suspicions on the street. If the driver refuses to take the test without what is described as “reasonable excuse” – for example that it would aggravate a medical condition – the driver is likely to be arrested and taken to the Police station for a test using an EBT machine. A driver who fails the PBT on the scene will also be similarly arrested;
- evidential which involves using an EBT device in a Police station. The results of this test, as already mentioned, can be used as evidence in court
What are the chances of being caught?
The procedures for drivers being stopped tested and ultimately charged for drink-driving are not complex. As a consequence it is unlikely that the Police will get them wrong. Similarly, the equipment used to test for evidence to be presented in Court is unlikely to be at fault. Any challenge on either of these grounds needs to be very well evidenced.
Neither of the above means that there are never failures by Police to observe procedure or that EBT devices are never at fault. But there are no glaring gaps in the system that allow drivers to get away with drink driving charges on a regular basis.
Can you get a lower sentence?
As with other types of offences, what can help an individual at Court is previous good character, co-operation and honesty. Whilst there are no excuses for driving whilst over the legal limit, there are times when people make mistakes because they are under stress. The Court may well take these factors under consideration when passing sentence, although the prescribed penalties and sentences are clearly laid down.
The Court will also need to consider factors that contribute to the severity of the offence, for example the blood alcohol level or previous similar convictions.