Drinking (and driving?) over the festive period

As the festive season approaches, Christmas parties and gatherings will soon be in full swing. Local police forces across the country are expected to roll out their respective campaigns to combat drink-driving.

These initiatives have become familiar at this time of the year, and we all know that the police experience a notable spike in the numbers of motorists tested and arrested for drink-driving (and, in some cases, drug-driving) offences. Therefore, motorists can expect police forces to have a more visible presence on the roads, 24 hours a day, with the aim of deterring road users who decide to get behind the wheel after consuming a quantity of alcohol. Every one of us who drives should be extremely vigilant, as such errors in judgment can have cataclysmic consequences.

What is the drink-driving limit?

The drink-driving (or even attempting to drive or otherwise be in charge of a vehicle) limit for motorists in the UK is:

• 80 milligrams of alcohol per 100 millilitres of blood
• 35 micrograms per 100 millilitres of breath
• 107 milligrams per 100 millilitres of urine

Unlike some countries, in the UK, motorists are lawfully entitled to consume a small quantity of alcohol and drive their vehicle. This is different to the regime concerning drug-driving, which sets specified limits adopted on a zero-tolerance approach. However, if you have planned to or are driving, then no alcohol whatsoever is the safest approach. First, it ensures that a motorist’s reaction time and overall ability will not be impaired to any degree whatsoever. Moreover, it prevents drivers and motorists from guessing how much can be consumed before they exceed the legal limit. Merely feeling okay (in other words, not feeling intoxicated or impaired) is by no means a reliable indicator as to whether or not a driver is within the legal limit.

There are many misconceptions about the specific volume of alcohol that can lawfully be consumed when driving and how long it takes alcohol to leave an individual’s body, thus rendering them under the limit and legally entitled to drive. All such calculations and theories have long since been proven to be flawed, as there are a multitude of variables relating to the effect of one unit of alcohol, and these invariably fluctuate from person to person. Such variables can include:

• Age
• Weight
• Gender
• Metabolic rate
• Volume of food consumed
• Type of alcohol
• Tiredness
• Levels of stress

It’s important to remember that the effects of alcohol can last some time. Those driving the following morning who have levels of alcohol above the prescribed legal limit will still be committing an offence even though they may have done so in all innocence.

Drink-driving penalties

The specific penalties for drink-driving will depend on the precise nature of the offence, such as whether an individual was actually driving; attempting to drive; unfit through drink in charge of a vehicle, or otherwise failing to comply with the requirement to partake in a testing procedure (preliminary or evidential) when requested to do so by the police. For each type of offence, there are also factors beyond the level of actual intoxication that are deemed to either aggravate or mitigate, and these can change the type and level of any overall sanction imposed.

Nevertheless, typically the sentence on conviction for a drink-driving offence is a term of imprisonment up to a maximum of six months, and/or an unlimited fine, and an obligatory driving disqualification for a minimum period of 12 months. With regard to the latter, it should be noted that the minimum period is increased to 24 months if an individual has had two or more disqualifications for a period of 56 days or more in the preceding three years and increased to 36 months if the offender has been convicted of a ‘relevant offence’ (any drink/drug and driving-related offences) in the preceding ten years.

In the worst cases where a motorist causes a fatality through drink-driving, they could be prosecuted for the offence of causing death by careless driving whilst under the influence of drink (or drugs). Such an offence carries the highest possible penalty of any motoring offence, which is a maximum of life imprisonment.

‘Spiked’ or ‘laced’ drinks

The offence of drink-driving is one of ‘strict liability’ - in other words, the intent of the offender is irrelevant when determining criminal liability. However, if a motorist has consumed a drink that has been ‘spiked’ or ‘laced’ and this gave rise to the offence, then a ‘special reasons’ argument can be raised before the court. A ‘special reasons’ argument is not the same as a defence (in law) but is, in fact, an argument put forward on the basis of moral innocence with the view of avoiding the driving disqualification that usually follows a drink-driving conviction. For such an argument to be established, the defence must prove, on the balance of probabilities (so the court is satisfied that it is more likely than not that all are true), the following:

1. The driver’s drink was, in fact, spiked with alcohol
2. They did not know or suspect that the drink(s) had been spiked, and
3. The driver would not have been over the drink-driving limit but for the additional alcohol added to their drink(s).

It should be observed that a ‘spiked drinks’ (special reasons) argument can be raised even if the drinks were bought innocently and in good faith. This commonly arises in cases where friends are buying each other drinks. If you ask your friend for a single, but they buy you a double, you will have consumed more alcohol than you realised. So long as you have made reasonable enquiries at the time to check what you were drinking, you can still use this argument.

The question of whether you are over the limit because of the spiking is normally one that must be answered through expert evidence. That will involve instructing a toxicologist to conduct a blood-alcohol concentration (BAC) calculation. However, in circumstances where it is obvious to a layperson that you would not have been over the drink-driving limit, but for the additional alcohol, you may not be required to call such expert evidence. For example, this might be because you say you only consumed soft drinks, in which case the alcohol recorded by the police at the time of the offence must be the result of the spiking.

How Birkett Long can help

In the event you make a mistake or otherwise find yourself in trouble, it is imperative to seek specialist legal advice since there is a lot that can be done to assist you.

The police are obliged to adhere to complex legal procedures to establish an offence against a motorist. Our team will ensure the evidence is carefully analysed and any relevant legal challenges are raised on your behalf.

A specialist road traffic solicitor can also investigate issues such as ‘laced drinks’ and/or consider any other circumstances giving rise to a special reasons argument, which may avoid the imposition of a driving ban – for example, this might include the fact that only a very short distance was driven.

We will present a carefully planned package of mitigation in order to give you the best possible outcome in the circumstances. Even where a mandatory disqualification is inevitable, we can often achieve a reduction in length.

(This article was originally posted on 30 November 2022 and updated in November 2024.)