Driving with Excess Alcohol / Drink Driving

Drink driving is a very common motoring offence. One that IYDL lawyers have vast experience of representing clients, both a ‘not guilty’ or ‘guilty’ basis.

car keys and drink

It is an offence to drive (or attempt to drive) a motor vehicle on a road or other public place with alcohol in your body over the prescribed limit.


The ‘limit’ depends on the type of sample that is provided:

  • For a breath sample, the limit is 35 mg alcohol / 100 ml.

  • In relation to a blood sample, the limit is 80 mg of alcohol in 100 ml.

  • If urine, the limit is 107mg alcohol / 100 ml urine.

If the lower reading in breath is 39 mg in 100 ml or less, proceedings are not usually instituted.


Drink driving defence cases include:

  • Reliability of blood/breath/urine test procedure(s).

  • The statutory procedures have not been carried out correctly.

  • There was no likelihood of the vehicle being driven (i.e. if the vehicle is mechanically immobile).

  • Post driving alcohol consumption (hipflask)

  • ‘Special reasons’ (i.e. driving in an emergency, driving a short distance, spiked drinks)


Unreliability of test procedures

Challenges to the reliability of the device used to test the amount of alcohol in a person’s body tend to occur where a driver claims the reading relied on by the prosecution is incorrectly high. The unreliability can be due to radio interference, calibration or because the operator failed to detect an error on the print out with the result.

However, challenging the reliability of the device is notoriously difficult. It is not strictly necessary to adduce expert evidence establishing the reading which should have been produced based on what the driver claims to have consumed but, except in exceptional circumstances, to do so is likely to make the driver’s evidence more credible.


Incorrect statutory procedures

There are various statutory procedures that must be carried out properly by the police when testing the amount of alcohol in a person’s body. For example, before providing a specimen, a warning is mandatory and must be understood by the person required to provide the specimen.

If a specimen of blood is required from a driver, the driver must have the opportunity to raise objection to giving blood on medical grounds. The officer should ask the driver if there are any medical reasons why a specimen could not or should not be taken by a medical practitioner.


There was no likelihood of the vehicle being driven

If there is no likelihood the driver was going to drive the vehicle then this is a defence to some charges. It is not sufficient for the driver to prove that he did not intend to drive, the question is whether he has shown that there is no likelihood of driving while still over the prescribed limit. Medical or other expert evidence will almost inevitably be required to establish the probable alcohol level at the time at which the driver will next drive, unless the length of time involved makes that conclusion obvious.


Post driving alcohol consumption

The “hip-flask defence” is where the driver claims that the excessive amount of alcohol in his body is due to the consumption of alcohol after the event (time of the offence) and before the driver was tested. Therefore, the evidence from the specimen does not prove the level of alcohol in the driver’s body at the time of the offence.

The driver must prove, on the balance of probabilities, not only that the reading was wrong but also that at the relevant time his alcohol level was below the prescribed limit.  


‘Special reasons’

Depending on the specific offence charged the court may find there are special reasons for not disqualifying a driver or endorsing their licence. A special reason must be special due to the facts of the offence not due to circumstances in relation to the driver.

Even where 'special reasons' have been established, there is no obligation to exercise the discretion and the court may still disqualify and endorse as it considers appropriate. In cases involving obligatory disqualification, the court may find 'special reasons' and not disqualify but still endorse. In cases where disqualification is discretionary, the court may find 'special reasons' and still endorse.


Drink driving penalty

  • The maximum fine is unlimited. Alternatively, a community order or up to 6 months’ imprisonment can be imposed

  • The minimum disqualification is 12 months or 2 years where there has been two or more disqualifications for periods of 56 days+ in preceding 3 years or 3 years where there is a conviction for a relevant offence in preceding 10 years

  • A disqualification may be avoided if special reasons are found

It is also worth noting that there is a probation period of two years for new drivers. This commences from the day on which a person becomes a qualified driver. If a new driver commits an offence or offences involving obligatory endorsement of six or more penalty points, then their licence is revoked. There is no discretion involved although 'special reasons' may be raised against endorsement to prevent this from happening.


If you are to be interviewed by the police, or have been charged / summoned to attend court for a drink driving offence, contact us asap for help and further information.

M23Law and In Your Defence Ltd, for all motoring offence defending.