Drink Driving 

Drink Driving (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 requires more discretion. Our experience and expertise in this area delivers practical advice and honest, effective representation.




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. Even where drink driving is established the penalties may be avoided or reduced if Special Reasons are successfully argued.


Alcohol Limits


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 are as follows:

22 microgrammes of alcohol in 100ml of breath 50 milligrammes of alcohol in 100ml of blood 67 milligrammes of alcohol in 100ml of urine


Blood and urine samples tend to provide a more accurate reading. If the breath reading is below 31mg the driver must be given the option of replacing the breath specimen by giving blood or urine.


Drink Driving Procedure


If a police officer suspects that a person is or has been driving whilst under the influence of alcohol, they 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, they will either be held in custody to appear at court on the next lawful day or released on an undertaking to appear at court at a future date. If a person refuses or fails to provide a specimen, without reasonable excuse, separate charges can be made.


Drink Driving Defences


The law behind 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 deserted. 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. Forensic and evidential procedures need to be scrutinised as uncovering failures can result in acquittal.


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.


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.


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 i.e., a 12-month ban will be reduced to 9 months on completion of the course.


If you have been charged in relation to drink driving within the Highlands and Islands, contact our office for advice on your options in defending this charge.