Section 5(1)(a) Road Traffic Act 1988

A person is guilty of an offence of drink driving if he drives or attempts to drive a motor vehicle on a road or public place when the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit.  Attempting to drive covers situations where there is evidence of an intention to drive even if the car remains stationary.

Drink driving is clearly a serious offence, but it is one that is committed by people from all walks of life.  For the most part the offence is isolated and out of character.  On other occasions the situation is a little more delicate.  We understand the need for discretion.  Our experience and expertise in this area delivers practical advice and effective representation.  Not all cases of drink driving can or should be defended.  If you do not have a defence, we will tell you and concentrate on damage limitation.


Penalties for drink driving vary depending on the level of intoxication.  However, disqualification for a minimum period of 12 months is mandatory and a fine of up to £5000 can be imposed.  In some cases the prosecution can seek forfeiture of the motor vehicle and in very serious case a custodial sentence can be imposed. 

If a person has a previous conviction for drink driving within the past 10 years the minimum period of disqualification is extended to 3 years and the risk of imprisonment is increased.  Even where drink driving is established the penalties may be avoided or reduced if Special Reasons are successfully argued.

Prescribed Alcohol Limits

The offence is committed if a driver is “over the limit”.  In order to obtain a conviction for drink driving, the prosecution must prove that the prescribed limit has been exceeded.  The amount of alcohol in a person's system can be measured in breath, blood or urine.  The prescribed limits in Scotland were recently reduced as follows:

  • 22 milligrammes of alcohol in 100ml of breath (previously 35mg)
  • 50 milligrammes of alcohol in 100ml of blood (previously 80mg)
  • 67 milligrammes of alcohol in 100ml of urine (previously 107mg)

Blood and urine samples tend to provide a more accurate reading.  However, the right to have a specimen of breath replaced by blood or urine no longer exists  

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Drink Driving Evidence

If a police officer suspects that a person is or has been driving whilst under the influence of alcohol he can require that person to provide a roadside breath test.  If the test is positive the person will be arrested and taken to a police office to provide a further breath test on an Intoximeter machine, which provides a more reliable measurement of alcohol in a person's breath.   If the result is positive the person will be arrested and charged.  Thereafter, he will either be held in custody to appear at court on the next lawful day or released on an Undertaking to appear at court on a future date.  The entire procedure can be very complicated and in most cases the police will complete a booklet which provides guidance about the procedures to be carried out by them when dealing with drink driving offences.  This booklet, together with the printout from the Intoximeter machine or other readings will form the basis of any subsequent prosecution.

If a person refuses or fails to provide a specimen, without reasonable excuse, separate charges can be brought.  Failure to provide at the roadside is an arrestable offence punishable by a fine and either discretionary disqualification or 4 penalty points. If the failure to provide occurs at the police office a mandatory 12 month period of disqualification applies and there is also provision to impose a custodial sentence. There are, however, defences to such charges and further information can be found under the section on Failure to Provide Specimens.

Drink Driving Defences

The law governing drink related offences is exceptionally technical and complex.  This can often lead to errors which may prove fatal to subsequent proceedings.  The police must follow the procedures which have been set down by legislation.  Procedural errors by the police or any other person involved in the proceedings may also result in a drink driving case being dismissed.  A technical defence may be available if it is established that the machine used to measure the level of alcohol was not working properly or that it was incorrectly operated.  An acquittal may also come about by uncovering failures in forensic and evidential procedures.  Other defences include:

Hip-Flask Defence

The Hip Flask or Post Incident Driving Defence might be available in circumstances where it can be established that the driver was not over the limit at the time they were driving, but consumed alcohol after driving and before providing a sample to the police.  The defence can still operate even if the driver had consumed some alcohol before driving, but not enough to have taken him over the prescribed limit.  These types of defences often require expert evidence from a forensic toxicologist.

Defence of Emergency, Necessity or Duress

A successful defence may be established if a person is genuinely compelled to drink drive because of an emergency. The same rationale applies where a person drink drives due to threats of death or serious physical injury. The defence will only succeed if the emergency or threat is immediate or imminent and there is no alternative. When the emergency or threat no longer exists the driver must stop driving. If he continues to drive after the crisis has ceased he is guilty of drink driving, although Special Reasons may be argued for not disqualifying.

Drunk in Charge

If a person can establish that he was not driving or attempting to drive then a charge of drink driving may be reduced to one of Drunk in Charge.  Disqualification may be avoided with the imposition of penalty points.  Moreover, a statutory defence of “No Likelihood of Driving” may result in an acquittal all together (see section on Drunk in Charge).

Special Reasons

Special Reasons provide an explanation for why a particular course of driving took place and can be defined as mitigating circumstances which do not amount to a defence, but allows the court to refrain from disqualification or impose a lesser period of disqualification. Special Reasons must relate to the nature of the offence and not to the circumstances of the driver. If successful, therefore, disqualification for a drink driving offence can be avoided altogether.

Drink Drivers Rehabilitation Course

If you are convicted or plead guilty to a drink driving charge the minimum period of disqualification can be reduced by attendance at a Drink Driver's Rehabilitation Course. Periods of disqualification are reduced by up to one quarter so that a 12 month ban will be reduced to 9 months on completion of the course.

How we can help

The law relating to drink driving offences is technical and complex. Successful defences are equally so. Our experience and expertise in this area will quickly determine the merits of the case and the best option for you. Early expert advice can save time and expense. We can prepare your case, arrange for supporting documentation and make forceful representations at court. If prospects for success are low we will concentrate on damage limitation. As specialist road traffic lawyers we are best placed to give you the right advice. We pride ourselves in offering a service that is friendly, reliable and honest. For free advice that is without pressure or obligation simply contact us:

E-Mail Us Today or Tel: 0141 255 1519