Drink Driving Spiked Drinks Argument

A 'spiked drinks' argument is known as a 'special reason'. A special reason is not the same as a defence because you have to enter a guilty plea in order to raise it, but it does give the magistrates the power not to disqualify you from driving. Our team of specialist driving defence solicitors regularly represent clients across the UK who have consumed alcohol or drugs unknowingly. It does not matter if the person who 'spiked' the drinks did so by accident, so long as you did not know you were consuming additional alcohol. Moreover, it does not matter if you did consume some alcohol knowingly, so long as it did not put you above the legal limit. A spiked drinks argument will also apply to a beverage that contains more alcohol than you realised (e.g. a double instead of a single). 

BBC News recently reported that many victims of spiked drinks were accused of having 'one too many'. A belief that police in England and Wales "won't do anything" adds to victims' reluctance to come forward, says a Home Affairs Committee report. Victims criticised the attitudes of door staff of pubs and clubs, who rejected their concerns or even threw them out for being "drunk". (BBC) M.A.J Law have heard reports of similar incidents involving people charged with drink driving. The police often brush off reports of spiked drinks and refuse to investigate claims. Instead, they push cases cases to court and expect people to roll over. 

If you're arrested for drink driving and you think your drink may have been spiked, it is important that we explore this possibility. Drink driving carries a mandatory driving disqualification unless the court finds special reasons. M.A.J Law has previously won spiked drinks cases without the 'spiker' having to attend court, and without expert evidence. It may be easier than you think. 

Will the 'spiker' get in trouble? 

Please remember that a spiked drinks 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 have consumed more alcohol than you realised. So long as you make reasonable enquiries to check what you're drinking, you can still raise the argument. 

Case Study - Freedom of Information

The law on special reasons - Spiked Drinks

Newnham v Trigg [1970] R.T.R. 107

It cannot be a special reason for a defendant to say simply that he was mistaken as to the amount of alcohol that he had drunk. In this case, the defendant had been given whisky in bed by his wife, but by reason of his cold, could not tell how much he had drunk. It was held that ignorance of the exact quantity of drink cannot be a special reason, whereas a mistake as to the quality might be.

Robinson v DPP [2003] EWHC 2718

A defendant whose breath-alcohol level was 87µg/100ml contended that he was a Rastafarian who did not drink and that prior to being stopped he had attended a function at which he had drunk what he had assumed to be a non-alcoholic punch. His admitted feelings of tiredness he put down to a long day. The magistrates held that he was under a positive duty to make inquiries as to the content of the punch and therefore declined to find special reasons for not disqualifying him. A driver who assumed that a drink did not contain alcohol was taking a risk given that the purpose of the legislation was to ensure that people did not drive with excess alcohol. It was for the defendant to show in mitigation that he had done all that he could reasonably be expected to do to avoid the commission of an offence. In any event, given the high level of alcohol revealed by the breath analysis, the magistrates would have been entitled to find that they should not exercise their discretion in his favour notwithstanding that a special reason might otherwise have applied.

Pugsley v Hunter [1973] R.T.R. 284

It was held in this case, following R. v Shippam [1971] Crim. L.R. 434, that where a defendant can establish that:

1. his drink was “laced”;
2. he did not know or suspect that his drink was “laced”; and
3. if his drink had not been “laced” the alcohol level in his blood would not have exceeded the prescribed limit, the court could be entitled to find special reasons, but that the defendant must establish
4. with medical or scientific evidence that the added drink explains the excess.

It should be emphasised that even if special reasons have been established, the court must go on to consider whether or not to exercise its discretion in the defendant’s favour. If the blood- alcohol level is high, or the impairment substantial, the court is bound to take this into consideration.

M.A.J Law offer free initial advice to anyone charged with drink driving. We can explain your options in detail from the outset.

Drink Driving Sentencing Guidelines

All magistrates use sentencing guidelines before passing sentence. The purpose of the guidelines is to ensure that the sentence is fair and proportionate. You will know by now that drink driving offences carry mandatory driving bans (unless the court finds a special reason). Check the chart below to work out the length of your driving ban. You can also use our DRINK DRIVING BAN CALCULATOR for an instant result. 

If you have a previous drink driving, drug driving or failing to provide within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%.

Why you should avoid a spiked drinks argument 

The problem with a 'spiked drinks' argument is that the burden falls on you to raise it. You must establish on a 'balance of probabilities' that you consumed more alcohol than you realised. For obvious reasons, this can be difficult. If the court do not find special reasons, they will disqualify you. 

You may not know that this type of argument can always be raised later in the case. It may be advantageous to challenge the allegation first and check the evidence. We regularly win drink driving cases due to mistakes made by the police and CPS. If the evidence is correct, you can always change your plea later on a argue spiked drinks (as a 'plan b'). The magistrates will not necessarily know that you challenged the allegation to begin with. 

If the court finds a special reason you would not usually be banned. There are circumstances where the court can still impose a reduced disqualification, but this is unlikely. If you're convicted of drink driving again within a ten-year period (having previous been successful with special reasons), the minimum 3 year disqualification will apply. You can still argue spiked drinks with previous drink and drug driving convictions. 

FAQ - Spiked Drinks

1. What evidence do I need to argue spiked drinks? 
   You are required to prove that your drink was spiked and that your drink was spiked without you knowing. Evidentially, this could take the form of a witness statement from someone who saw what happened. You are also required to show that had your drink not been spiked, you would have been under the legal limit of alcohol whilst driving. Expert evidence would usually be needed to establish this point, but not always.
   

2. Can I argue special reasons even if I have previous convictions? 
   Yes. If you have a previous conviction for drink or drug driving of failing to provide a specimen, you can still argue special reasons. 

3. What other special reasons arguments are there? 
   There are multiple special reasons. Shortness of distance driven and driving in an emergency are considered special reasons arguments.

4. Will I go to prison for drink driving?
   Going to prison for drink driving is unlikely. Only in the most serious circumstances will a person receive a custodial sentence for drink driving. The odds are greater if a person has a relevant previous conviction or if there were serious aggravating factors. 

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series. 

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

Drunk in charge is an offence which you will find under section 5(1)(b) of the Road Traffic Act 1988. The charge is similar to a drink driving allegation, except the police will say that you were sat in the vehicle, or in control of the vehicle and not driving. This usually happens when the police are unable to prove that you had been driving the vehicle, so it is easier for them to charge you with an 'in charge' offence. The below blog aims to explore the defences that are available to a drunk in charge allegation.

Defending the allegation

No intention of driving

As per section 5 (2) of the Road Traffic Act 1988, it is a defence if you had no intention to drive the vehicle, whist above the legal limit for alcohol.

The burden falls on you as the defendant to demonstrate on the balance of probabilities that you had no intention of driving the vehicle and therefore, there was no likelihood that you would have driven. In order to prove that you had no intention of driving the vehicle, you could put forward evidence about your intentions that day. Evidence of this could include the following:

• Statements from friends or family members who knew your intentions that day
• Evidence from yourself at court about what your intentions were
• If you had arranged to be picked up by someone else, a statement confirming that point from that person
• Records of calls to taxi companies or a booking confirmation at the time the police came and spoke to you

It is not as simple as attending court and telling the Magistrates' or the Judge that you had no intention of driving the vehicle. You have to demonstrate that you had no intention of driving the vehicle whilst over the legal limit. This can more difficult to prove in a case that involves higher alcohol levels. Firstly, if you're under the influence of alcohol, you may well have made the decision to drive.

The Magistrates' may decide that you would have driven because you were under the influence of alcohol and you were not thinking rationally. Secondly, when you returned to the vehicle, you may still have been over the legal limit, especially when the alcohol reading is high. Expert evidence can assist in confirming your alcohol level at the time that you did intend on next driving the vehicle.  

Expert evidence

An effective method of proving that you would not have been over the legal limit for alcohol is with expert evidence. We work closely with a toxicologist who regularly produces reports for us in drunk in charge cases. They would consider your height, weight and age and the alcohol level and explain when you would have dropped below the legal limit. If the expert concludes that you would have been under the legal limit before you next planned on driving the vehicle, you can run the argument at court.

Expert evidence is considered more reliable in court because it is clear, concise and impartial evidence which the court will always consider. If the expert attends your court hearing to give their evidence in person, even better. 

Post-in charge consumption

It may be the case that you consumed alcohol after you left the vehicle, and before you returned. You may be able to argue that would not have been over the legal limit when you were in charge or in control of the motor vehicle.

This is known as a a post-incident consumption defence. If your breath reading is low, this argument is always considered more credible at court, because you are required to explain why you consumed alcohol after you were in control of the vehicle. If your breath reading is high, it will not prevent you from raising this as an argument.  If you have expert evidence explaining that the alcohol consumed after you were in charge of the vehicle is the reason that you were over the limit, your argument is strong.

Private land argument

One other defence which you may seek to rely on when defending a drunk in charge allegation is the location of the vehicle when the police arrived. The prosecution service are required to prove that the location of the alleged offence was public. Not only are the prosecution service required to prove that the public had unrestricted access to the location or land, they are also required to prove that the public utilise the location with the permission of the land owner. If the location of the land is private, then an offence of drunk in charge cannot be committed as per the Road Traffic Act 1988. 

We would be more than happy to discuss this point with you to elaborate on whether we think the land was public or private in your particular case.

Case Study - Liverpool Magistrates' Court 

We recently represented a client who had been accused of being drunk in charge of a vehicle. Our client was enjoying a night out in Liverpool when he became separated from his friends. He booked an Uber using the app on his mobile phone to take him home. When the Uber failed to arrive to take him home, our client then called numerous family members to ask for a lift home. He did not get a response. The decision was made to sleep in the vehicle. Approximately 1am the next morning, the police woke him up, knocking on his window. Our client provided a roadside breath reading over the legal limit, was arrested and taken to police custody.

Once at the police station, our client gave an evidential sample of breath which produced a reading of 40 micrograms, the legal limit being 35. He was charged by the police and given a date to attend the Magistrates' Court. Our client was formally interviewed by the police before he left police custody, where he told the police that he had no intention to drive the vehicle, and he would have slept in the vehicle until 10am the following day. He also showed the police the calls he made to his family members (around 2 hours before the police actually arrived) and the booking confirmation and payment made for the taxi that did not show up. Our client then contacted us for free initial advice. We explained his options in detail and that he may have a full defence to the allegation based on the facts of his case. We then contacted the Crown Prosecution Service for the initial disclosure and advised our client what the next steps would be.

Based on the evidence provided by the CPS, we advised our client to plead not-guilty at court. We attended the initial hearing and raised the statutory defence that our client had no intention to drive the vehicle. We were then able to demonstrate using expert evidence that our client would have been under the legal limit for alcohol at the next time he drove the vehicle! As such, the court accepted that there was no likelihood of our client being over the legal limit when he next would have driven the vehicle. The court found our client not guilty of the offence. He kept his licence and avoided a criminal record.

In our most recent YouTube series, our senior solicitor Conor Johnstone explains the defences that apply to a drunk in charge allegation.

Drunk In Charge Sentencing Guidelines

How to avoid a conviction for drunk in charge

Defend the charge

Under Article 6 of the European Convention on Human Rights everyone has the right to a fair trial. Drunk in charge cases take place in the Magistrates' Court. You can learn the difference between the criminal courts using the GOV.UK website. The prosecution process generally begins with the police making an arrest. Evidence is then gathered by the police to establish what actually happened and who was involved. In a drunk in charge case, evidence might include;

1. A breath reading
2. Witness statements
3. An MGDDA document

Once the appropriate evidence has been gathered, the police will decide whether it is sufficient to charge the suspect. In order to charge, the police must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspect. Depending on the type and seriousness of the offence committed, this decision is made by the police or the Crown Prosecution Service (CPS). If a person is charged with drunk in charge of a vehicle, they are usually released and bailed to attend the Magistrates' Court. 

In almost all cases involving a positive alcohol test, the police will charge the suspect. A date will then be set for the suspect to attend court for a first appearance. If you have been given a date to attend court you will no doubt be extremely worried. We have produced a detailed booklet about first hearings in the Magistrates' Court. You can access this here. 

There is nothing wrong with pleading not-guilty, even if you're over the legal limit. Every person has the right to challenge an allegation made by the police and to check the evidence against them. Not only can you continue to drive for 2 - 6 months, you will also see the full case file held by the CPS, including any witness statements and the MGDDA document. It is only by checking the evidence can you find fault with it. 

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Prosecution Disclosure

If you read our blogs regularly you will know that we speak often about the affect of prosecution disclosure (or lack of) in criminal cases. Under the Criminal Procedure and Investigations Act 1988 the CPS have a duty to provide you with;

1. The evidence is wants to use against you
2. A schedule of unused material

This disclosure should be served as soon as possible following a not guilty plea in the Magistrates' Court and usually within 28 days of the first hearing. But what happens if the CPS fail to provide disclosure within the permitted timeframe? 

A failure by the CPS to provide disclosure is one of the most common ways that we win drunk in charge cases. This is because rules of evidence require the CPS to serve its evidence prior to trial. Often due to staff shortages and administration problems the CPS miss deadlines and make silly mistakes. This is a common occurrence in Magistrates' Court cases, usually because drunk in charge cases are less serious than other offences in higher courts.

Unfortunately it's not as simple as sitting back and letting the CPS slip up. The defence are required to be proactive in contacting the CPS and in some circumstances are required to call the case back to court for a pretrial review. As an experienced team of specialist defence solicitors, we can advise you on all of these issues. We know how to best safeguard your position in order to give you the best chance of winning your drink driving case. 

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series. 

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

Failing to provide the police with a sample of blood in the police station or the hospital can be considered more serious than the original drug driving allegation.

Drug driving generally carries a 12 month driving disqualification. Failure to provide carries a disqualification period of around 18 months, and there is also an increased risk of a community order or a prison sentence.

It is always worth considering the defences that are available to an allegation of failing to provide because the penalties can be serious.

Reasonable excuse - a phobia of needles

If you are charged with failing to provide a specimen of blood, you may have a defence without realising it. If you suffer with a phobia of needles, you can raise this as a medical reason for not providing a sample of blood in police custody. This is known as a 'reasonable excuse'. If you told the police at the time that you had a fear or phobia of needles, this can help strengthen your argument. Telling the police at the earliest opportunity that you suffer with a fear or phobia of needles can increase the chance of successfully defending the allegation at court. The police will often charge someone with fail to provide because they do not realise that a phobia of needles is medical reason for not providing a sample. Do not worry if you did not tell the police about your phobia, this will not prevent you from arguing that point at a later date. 

Evidence of your phobia

One of the most effective ways to establish a phobia of needles is with your medical records. If the medical records pre-date the incident and they show that you have a phobia of needles then your defence is strong. The records may also show that you explained to your GP that you have a phobia of needles, or they may also show that you have previously turned down treatment for an illness because it involved having a syringe, needle or a blood sample taken from you. It could be that you refused your COVID vaccinations because of your phobia of needles. If the phobia is pre-existing, your argument is more credible, believable and it is more likely that you would win the case on that basis. However, you can still rely on your needle phobia as a defence even if you have not raised it with you GP or doctor previously. It may have been the case that you did not go to your doctor in the first place because of your phobia of needles. The court will often accept that a phobia isn't always logged with a doctor. So, there is nothing preventing you from raising needle phobia as a defence after the incident.

Another effective way to demonstrate that you suffer with a needle phobia is with a written statement from a family member, friend or anyone that knows you. This allows for someone who knows you personally to explain to the court that your needle phobia is pre-existing and explain what impact your phobia has had on your decision making previously. They could also outline previous instances where you have fallen ill upon seeing a needle or instances in the past where you have refused a needle, syringe or vaccination. If that person is willing to attend court to explain that point, your argument becomes stronger. 

Expert reports

One way of strengthening your defence of needle phobia is to instruct an expert witness to prepare a medical report. An expert is a psychotherapist who will have expertise in needle phobia diagnoses and the impact it can have on someone's decision making. We work very closely with a psychotherapist who regularly produces reports in fail to provide cases. The expert would usually conduct a short assessment with you face to face. They would ask you various questions about the needle phobia and where you think it stemmed from. They will also ask how it could impact your decision making and how it makes you feel when you see a needle. The expert can then use the information you provide to prepare a very detailed report which can be used in court.

If the report is favourable, and it confirms in the psychotherapists view that you do suffer with a phobia of needles, you can rely on the report as medical evidence to establish that point. It does not matter that you did not raise your needle phobia with the police at the time that they asked for a specimen of blood. You are still able to rely on the defence after the incident. 

Burden of proof

It is also important to consider the burden of proof in fail to provide cases. Firstly, the prosecution service are required to prove the case against you and this has to be proven beyond all reasonable doubt. With a fail to provide reasonable excuse argument, there is no evidential burden on you as the defendant.

As long as you can establish an evidential basis for your needle phobia, (medical records, expert report, statements from family or friends) it then becomes the role of the prosecution to provide beyond all reasonable doubt that you do not have a phobia of needles. This becomes impossible for the prosecution service because they won't have expert evidence to rely on or psychologists or psychotherapists in these types of cases.

You can view our latest YouTube video below. Our senior solicitor Conor Johnstone explains in detail the defence of a reasonable excuse involving a needle phobia. 

You may know by now that a fail to provide charge carries a mandatory driving disqualification. This means that you will be banned if you are convicted of the offence. The minimum driving disqualification is 12 months. The court can also impose a fine, community service or custodial sentence. Take a look at the guidelines below.

Failing To Provide Sentencing Guidelines

If you have a previous drink or drug driving or failing to provide within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%.

FAQ - Sentencing Guidelines 

1. Can I pay a higher fine to avoid a ban?
   No. The fine is means tested and depends upon your income. It is usually around 100-150% of your net-weekly income. If you plead guilty at the first opportunity you would receive maximum credit on the fine. Maximum credit is one-third. Credit does not apply to the length of the disqualification.
   

2. I'm a carer for a family member. Will the court let me keep my licence?
   No. There are no provisions allowing someone convicted of fail to provide to keep hold of their licence as a carer. Failure to provide has far reaching consequences and will no doubt affect the people close to you. The court cannot take this into account when sentencing.

3. Will I go to prison?

   There is always an increased risk of a custodial sentence in fail to provide cases. In the most serious cases, the starting point for the court is a 12 week prison sentence. The odds are greater if a person has a relevant previous conviction or if there were serious aggravating factors.

How to get off a fail to provide (blood) charge

Defend the charge

Under Article 6 of the European Convention on Human Rights everyone has the right to a fair trial. Fail to provide cases take place in the Magistrates' Court. You can learn the difference between the criminal courts using the GOV.UK website. The prosecution process generally begins with the police making an arrest. Evidence is then gathered by the police to establish what actually happened and who was involved. In a fail to provide case, evidence might include;

1. Witness statements
2. An MGDDB document

Once the appropriate evidence has been gathered, the police will decide whether it is sufficient to charge the suspect. In order to charge, the police must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspect. Depending on the type and seriousness of the offence committed, this decision is made by the police or the Crown Prosecution Service (CPS). If a person is charged with failing to provide a blood sample, they are usually released and bailed to attend the Magistrates' Court. 

In almost all cases involving a refusal, the police will charge the suspect. A date will then be set for the suspect to attend court for a first appearance. If you have been given a date to attend court you will no doubt be extremely worried. We have produced a detailed booklet about first hearings in the Magistrates' Court. You can access this here. 

Every person has the right to challenge an allegation made by the police and to check the evidence against them. Not only can you continue to drive for 2 - 6 months, you will also see the full case file held by the CPS, including any witness statements and the MGDDB document. It is only by checking the evidence can you find fault with it. 

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Prosecution Disclosure

If you read our blogs regularly you will know that we speak often about the affect of prosecution disclosure (or lack of) in criminal cases. Under the Criminal Procedure and Investigations Act 1988 the CPS have a duty to provide you with;

1. The evidence is wants to use against you
2. A schedule of unused material

This disclosure should be served as soon as possible following a not guilty plea in the Magistrates' Court and usually within 28 days of the first hearing. But what happens if the CPS fail to provide disclosure within the permitted timeframe? 

A failure by the CPS to provide disclosure is one of the most common ways that we win fail to provide cases. This is because rules of evidence require the CPS to serve its evidence prior to trial. Often due to staff shortages and administration problems the CPS miss deadlines and make silly mistakes. This is a common occurrence in Magistrates' Court cases, usually because drink driving cases are less serious than other offences in higher courts.

Unfortunately it's not as simple as sitting back and letting the CPS slip up. The defence are required to be proactive in contacting the CPS and in some circumstances are required to call the case back to court for a pretrial review. As an experienced team of specialist defence solicitors, we can advise you on all of these issues. We know how to best safeguard your position in order to give you the best chance of winning your fail to provide case. 

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series. 

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

A failure to provide charge doesn't always mean a driving ban

Failing to provide a specimen is a serious offence which can often carry a mandatory prison sentence. If you are charged with the offence of failure to provide a specimen it is important you obtain specialist legal advice straight away. The offence often begins with someone being pulled over by the police. That person will then usually be asked to complete a roadside test before being arrested and taken into police custody. In police custody, the officer will ask for an evidential specimen of breath.

There are a number of different defences that apply to a failure to provide charge. Just because you did not provide a specimen does not mean you are guilty of failing to provide. This blog aims to explore the ways in which you can avoid a ban for failing to provide a specimen. 

You may know by now that failing to provide carries a mandatory driving disqualification. This means that you will be banned if you are convicted of the offence. The minimum driving disqualification is 12 months, however in fail to provide cases, the average disqualification period can be around 18 months. The court can also impose a fine, community service or in the most serious cases, a custodial sentence.

'Reasonable excuse'

There is often a good reason why someone is unable to provide a specimen of breath whilst in police custody. See the below example which shows the wording of a fail to provide charge:

You are only guilty of failing to provide, if you do not have a reasonable excuse. The police will often decide to charge someone with failing to provide a specimen, but this does not mean that you are guilty, nor does it mean that you do not have a reasonable excuse defence to the allegation. There's no one definition of reasonable excuse, and it is often broadly defined. Common examples of a 'reasonable excuse' can be seen below:

• A physical injury
• A medical condition
• Asthma
• Chronic Obstructive Pulmonary Disease (COPD)
• Long COVID-19 (which has recently become more common)
• Mental health (panic attacks, anxiety and depression)
• Learning difficulties

Should you wish to rely on a reasonable excuse as a defence, you are only required to raise an 'evidential basis'. This may be some evidence which outlines a condition which may have prevented you from providing the sample in police custody. The prosecution service are then required to disprove that you do not have a reasonable excuse and that your condition would not have prevented you from giving the sample of breath.

A 'reasonable excuse' could be confirmed by documentary evidence, including;

1. Statements from family members or friends
2. Medical records and letters from your GP or doctor
3. An expert report commenting on your condition and the effect it would have on your ability to provide a sample

If you think you might have a reasonable excuse defence, then it is important that you seek legal advice. It is important that you are told exactly what evidence you will need to produce in order to be successful in winning the case, based on a reasonable excuse argument. 

Police Procedure

If you do not have a reasonable excuse, that's not to say that you do not have a defence to the allegation of fail to provide. The way in which you were processed both at the roadside and the police station is important in fail to provide cases. If the stop, arrest or the test at the roadside was unlawful, this can have an impact on the way in which the prosecution service deal with the case. They may decide to discontinue a fail to provide case if the arrest or stop was unlawful. 

In the police station, there are really important procedures the police have to go through, whenever the police ask someone to provide a sample of breath. It's never as simple as an officer saying "will you give a sample of breath" and then you refuse. The police have to fill out an important 25 page procedural document known as the MGDDA form. This document is designed to guide the officer through the breath test procedure, and it also contains a long list of questions, as well as the necessary legal requirements and warnings that have to be given to you before you provide a sample in police custody. 

If someone refuses to provide a sample in police custody, this can often confuse the police and they don't always know what steps to take, or how to react in that scenario. Most people who are taken to the police station for this reason will often comply, and provide a sample when an officer asks them to do so and of course, the police prefer that. But, if you refuse to provide a sample in police custody, the police can often believe (wrongly) that they then do not have to fill out all of the paperwork that is required. This is because the paperwork relates to breath samples, alcohol and how someone should blow into the breath test machine. This is where the police procedure can go wrong. So, if the procedure was not carried out correctly by the police, then that is a point on which you can challenge a fail to provide allegation.

The police are required to prove, beyond all reasonable doubt that they did carry out the procedure in the correct way. If it wasn't, it is usually case closed for the prosecution service. It is always worth while asking the prosecution service to provide things like body-worn video or CCTV from police custody. We can even ask for a copy of the MGDDA document. If this shows that the procedure was incorrect or was not completed, you would likely escape a conviction for fail to provide. 

Attempts to provide a breath sample

If you were taken in to the breath test room and you made some attempts to blow into the machine, but the officer claims that you were not blowing hard enough, this may be the reason why you have been charged. In this scenario, it may give rise to a separate defence. This relates to the small mouth piece which is attached to the machine by the police officer operating the machine. These tubes have to be new and are packaged separately to ensure hygiene systems are followed in police custody.

If you were unable to provide a sample of breath, then you may be able to argue that the mouthpiece was blocked or defective in some way. The reason that this can help your case is because the police will often discard the mouthpiece, after you make attempts to blow in to the machine. Should you then raise this as a defence issue, the prosecution service do not have the mouthpiece (because it was discarded by the police) and they then cannot prove that the mouthpiece was not faulty, blocked or defective in some way.

In the video below, our senior solicitor Conor Johnstone identifies the different ways of challenging a fail to provide breath case

Failing To Provide Sentencing Guidelines

If you have a previous drink or drug driving or failing to provide within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%.

FAQ - Sentencing Guidelines 

1. Can I pay a higher fine to avoid a ban?
   No. The fine is means tested and depends upon your income. It is usually around 100-150% of your net-weekly income. If you plead guilty at the first opportunity you would receive maximum credit on the fine. Maximum credit is one-third. Credit does not apply to the length of the disqualification.
   

2. I'm a carer for a family member. Will the court let me keep my licence?
   No. There are no provisions allowing someone convicted of fail to provide to keep hold of their licence as a carer. Failure to provide has far reaching consequences and will no doubt affect the people close to you. The court cannot take this into account when sentencing.

3. Will I go to prison?

   Going to prison for drink driving is unlikely. Only in the most serious circumstances will a person receive a custodial sentence for drink driving. The odds are greater if a person has a relevant previous conviction or if there were serious aggravating factors. 

How to get off a failure to provide charge

Defend the charge

Under Article 6 of the European Convention on Human Rights everyone has the right to a fair trial. Failure to provide cases take place in the Magistrates' Court. You can learn the difference between the criminal courts using the GOV.UK website. The prosecution process generally begins with the police making an arrest. Evidence is then gathered by the police to establish what actually happened and who was involved. In a failure to provide case case, evidence might include;

1. A printout from the breath test machine (if attempts to provide were made)
2. CCTV from the roadside / police custody
3. Witness statements
4. An MGDDA document

Once the appropriate evidence has been gathered, the police will decide whether it is sufficient to charge the suspect. In order to charge, the police must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspect. Depending on the type and seriousness of the offence committed, this decision is made by the police or the Crown Prosecution Service (CPS). If a person is charged with failing to provide, they are usually released and bailed to attend the Magistrates' Court. 

In almost all cases involving a failure to provide, the police will charge the suspect. A date will then be set for the suspect to attend court for a first appearance. If you have been given a date to attend court you will no doubt be extremely worried. We have produced a detailed booklet about first hearings in the Magistrates' Court. You can access this here. 

There is nothing wrong with pleading not-guilty, even if you could not provide a sample. Every person has the right to challenge an allegation made by the police and to check the evidence against them. Not only can you continue to drive for 2 - 6 months, you will also see the full case file held by the CPS, including any witness statements and the MGDDA document. It is only by checking the evidence can you find fault with it. 

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Prosecution Disclosure

If you read our blogs regularly you will know that we speak often about the affect of prosecution disclosure (or lack of) in criminal cases. Under the Criminal Procedure and Investigations Act 1988 the CPS have a duty to provide you with;

1. The evidence is wants to use against you
2. A schedule of unused material

This disclosure should be served as soon as possible following a not guilty plea in the Magistrates' Court and usually within 28 days of the first hearing. But what happens if the CPS fail to provide disclosure within the permitted timeframe? 

A failure by the CPS to provide disclosure is one of the most common ways that we win failure to provide cases. This is because rules of evidence require the CPS to serve its evidence prior to trial. Often due to staff shortages and administration problems the CPS miss deadlines and make silly mistakes. This is a common occurrence in Magistrates' Court cases, usually because failure to provide cases are less serious than other offences in higher courts.

Unfortunately it's not as simple as sitting back and letting the CPS slip up. The defence are required to be proactive in contacting the CPS and in some circumstances are required to call the case back to court for a pretrial review. As an experienced team of specialist defence solicitors, we can advise you on all of these issues. We know how to best safeguard your position in order to give you the best chance of winning your failure to provide case. 

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice.

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

It was reported by the BBC recently that a man twice the legal limit had killed another motorist.

Lorry driver, Martin Easton, was killed when a BMW driver crashed into him in May 2019. Mr Easton was driving a 44-tonne HGV at the time of the collision and did not survive. The barrister representing the defendant, Ian Duguid QC, told the court that the defendant had consumed alcohol the night before. The defendant pleaded guilty to death by dangerous driving - he will be sentenced by the court in the coming weeks.

Causing death by dangerous driving  

A person causes death by dangerous driving if;

1. the standard of his driving falls far below a careful and competent driver, and;
2. his driving 'causes' the death of another person.

Examples of dangerous driving include racing, driving aggressively, driving whilst unfit and speeding. 

Case Example: a driver overtakes another motorist on a residential street. The driver loses control and kills a pedestrian. The driver could be charged with death by dangerous driving.  

Sentence

A driver who is convicted of this offence could receive;

• Up to 14 years in prison (an average of 4 - 7 years)
• A mandatory driving disqualification (often in excess of 5 years)
• An extended retest (theory and practical) 
• A criminal record 

The court will also consider the existence of any aggravating or mitigating factors. The Magistrates' Courts Sentencing Guidelines lists the following aggravating factors. 

Note: An aggravating factor is a feature which makes the case more serious. 

• Previous convictions for motoring offences
• More than one person killed as a result of the offence
• Serious injury to one or more victims, in addition to the death(s)
• Other offences committed at the same time, such as driving while disqualified; driving without insurance; taking a vehicle without consent; driving a stolen vehicle
• Driving off in an attempt to avoid detection or apprehension

Sentencing Guidelines 

Defences

• Factual 

The first set of defences are 'factual'. This might apply if a defendant denies a factual component of the prosecution's case. The most obvious factual defence is a dispute about the standard of driving. A defendant might accept that his driving was careless, but he might deny that it was dangerous. He may say that he was not driving dangerously or carelessly. A defendant could also claim that the deceased person contributed (in part) to their own death. For example, a pedestrian who steps out in front of a speeding car without looking or a driver who fails to react in time to a vehicle that has pulled out. 

Dangerous driving is objective, meaning the driving experience of the defendant is irrelevant. Please also remember that road conditions can determine whether a person is driving dangerously. Your manner of driving should always be adjusted to suit the prevailing conditions of the road.

• Mechanical Fault

Could a mechanical fault have contributed to the incident? If a driver loses control because a vehicle malfunctions, he may have a complete defence. This defence may not apply in every scenario and we would be pleased to discuss the case with you. All our initial advice is completely free of charge. 

• Automatism

A defence less common is automatism. Automatism arrises where a motorist becomes incapacitated whilst driving. The incapacity must be unforeseeable and cannot be self-induced. An example might be where a driver suffers a seizure at the wheel or 'blacks-out' (without any medical history of seizures), or where a driver is attacked by a swarm of bees. 

• Necessity 

Necessity & duress are available as defences to causing death by dangerous driving. This would only apply where the defendant was driving to avoid death or serious harm to himself or others. If your actions were objectively disproportionate (in other words, you over reacted), the defence may not succeed. It is for this reason that any defence to an allegation of causing death by dangerous driving should be carefully considered. 

• Driver Identification 

The final defence worth discussing is 'driver identification' (i.e. can the police prove that you drove the vehicle?). A defendant cannot be convicted of causing death by dangerous driving if he was not driving the vehicle (or the police cannot prove that he was). Seeking the correct legal advice at the right time is critical to a successful defence. MAJ Law is a specialist motoring defence firm. Our team of solicitors have years of experience in defence serious motoring offences, often involving death or serious injury. We always offer free initial legal advice. 

What to do if you are charged with causing death by dangerous driving

1. Interview
   
   

   If you are cautioned, charged or being investigated for this offence you will be interviewed by the police. The purpose of the interview is to provide you with an opportunity to either accept or dispute the allegation. Decisions made by a suspect in interview can determine the outcome of a case at trial. Therefore, it is vital that you receive the correct legal advice before, during and after the interview process. Please also be aware that you may be interviewed more than once. 

2. Negotiating
   
   One option available to a suspect even before being charged is to negotiate with the police. There are a number of offences that might apply in any given case. Some offence are, of course, more serious than others. Negotiating can reduce the seriousness of the charge and the likely penalty imposed.
3. Obtaining evidence 
   
   Remember that you don't have to wait until court to obtain the evidence against you. Often the police will hold crucial evidence on file that must be disclosed under the Police and Criminal Evidence Act 1984. In addition, before each interview the police should provide 'pre-interview disclosure'. This should tell us more about the allegation. We can then quickly determine the likely defences. 

Next Steps

Any correspondence to the police or CPS should go through a solicitor. Anything you tell the police could be used in evidence against you. The police may rely on this evidence to prove its case in court. Challenging a case begins from the moment you're arrested. 

M.A.J Law offer free initial advice. We would be pleased to discuss your options in detail, even if you decide not to instruct us. You can use the contact form below to request a call back. 

If you’re facing drink driving charges without a specialist solicitor, pleading guilty may seem like the only option. For the courts, a guilty plea saves a lot of time and effort. And for your everyday solicitor settling for mitigation, the same applies. But at M.A.J Law, we know there’s another way.

Can a solicitor actually help me for drink driving?

All you need to know about drink driving lawyers and what they do...

A recent survey found that 78% of all those who pleaded guilty to drink driving later regretted that decision. It's not surprising to see why...

Don't expect the Crown Prosecution Service (CPS) to provide any evidence against you at the first court hearing. The Police, CPS, Court - practically everyone - wants you to 'go guilty' and take a ban. It's no secret that the Criminal Justice System is overworked and underfunded. Court administration is moving slower than ever. If a defendant pleads not guilty it adds to those already unmanageable delays. The CPS hate it. 

Most of my time is spent in court representing clients charged with serious driving offences. I will often find myself in court speaking with newly qualified clueless prosecutors wondering why my client is pleading guilty. Remember the alcohol reading has nothing to do with guilty or innocence. Take a look at some of the best drink driving defences of 2021.

You will know by now that drink driving carries a mandatory driving ban. If you plead guilty at your first court hearing you'll receive an on the spot ban, guaranteed. You can't even drive home. If you drive whilst disqualified, you usually go to prison. You can use the penalty calculator below to worth out the length of the ban.

Video - Why you shouldn't represent yourself 

Drink driving penalties

The first question most people ask themselves is ‘what ban will I get for drink driving?’ This is an important question because the answer highlights exactly why you shouldn’t plead guilty.

On conviction, you’ll receive a minimum 12-month disqualification and a financial drink driving penalty. The length of the disqualification is determined by how much you’re over the limit. But for repeat offenders, or more serious cases, you could be handed a community order or a prison sentence. Pleading guilty in court will lead to the immediate driving ban, meaning you won’t even be able to drive home.

The drink driving legal limits in England and Wales are black and white;

● 35 microgrammes of alcohol in 100ml of breath

● 80 milligrammes of alcohol in 100ml of blood

● 107 milligrammes of alcohol in 100ml of urine

But even if you’re over the limit, you could still be found not guilty if the proper legal procedures and evidential compliance is not followed.

To help you avoid being charged with drink driving, it’s useful to know how the human body eliminates alcohol. Many people caught drink driving actually consumed alcohol the night before – and may not realise it is still in their system.

The rate at which you absorb alcohol (depending on weight, age, sex and metabolism, stress levels and recent food consumption) determines how long it will stay in your system. Leaving extra time before driving is always advisable, especially after heavy drinking.

Drink Driving Ban Calculator

Calculate the length of your driving ban using our penalty calculator tool. 

I can understand why people regret the decision to plead guilty. Sat at home a week later unable to drive for the next year (or more), wondering if the CPS even had the evidence they needed. What if they didn't? What if you had a defence without realising? These are important questions that should be considered before you step foot in court. These questions may help save your driving licence. 

On average, 750 people per week are banned for drink driving on roads in England and Wales. This is a significant number and it's only increasing. The ones that choose to challenge the allegation may just slip through the net. 

M.A.J Law offer free initial advice to anyone charged with drink driving. We can explain your options in detail from the outset.

Drink Driving Sentencing Guidelines

If you have a previous drink or drug driving or failed to provide within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%.

What can a solicitor do for drink driving?

To start with, we're on your side. Unfortunately, many solicitors - especially your 'general crime' solicitors - have no interest in challenging driving cases. Instead they will advise you to plead guilty and present mitigation. In my view, this is a lazy attitude. Hire a solicitor that wants to fight your corner. 

It is possible that you might have a defence without knowing. Wouldn't you expect your solicitor to tell you?

I prefer to take an 'all options' approach - checking the evidence as we go. My experience has taught me never to take evidence at face value. Just because a document says you're guilty does not mean that you are. A drink driving defence can fall into one of the following categories;

1. Procedure
   Do you recall 25 page booklet and were you told the test was optional?
2. Legal
   Was the evidence gathered lawfully and can it be used in court?
3. Evidential
   Have the CPS complied with its statutory disclosure obligations? 
4. Technical 
   Is the alcohol level correct and what evidence have you seen to prove it? 

You might be staring at your bail sheet wondering what to do. You may even have a date to attend court. Court can be scary (it's designed to be!). We have produced a detailed booklet about first hearings in the Magistrates' Court. You can review this here. 

There is nothing wrong with pleading guilty. Similarly, there is nothing wrong with pleading not guilty - even if you're over the legal limit. Let me give you an example of how we win cases.

Case Example 

Stephen was charged with drink driving. He called me at 9:38am on the Sunday morning overwhelmed with the fear and anxiety of losing his job and being labelled a criminal. I explained that we could help. This was Stephen's first drink driving offence so, naturally, he was worried. He asked me about the penalties, what to say in court and about drink driving solicitor fees. 

In court, we raised only two defences. Firstly - the accuracy of the breath test procedure and, second, the reliability of the breath test results. These are common defence must be approached in the correct way. Ultimately it always comes down to prosecution disclosure. In summary, the CPS must by law serve certain items. This includes, for example, witness statements and procedural booklets. Due to ongoing administration problems and staffing shortages, the CPS fail to comply. Evidence is routinely served late - often days before trial.

As expected - in Stephen's case - the CPS had failed to serve the correct disclosure. In an attempt to 'set the CPS up to fail' we made a Section 8 application to force disclosure (knowing full well the CPS wouldn't comply).

Long story short the CPS failed to serve the evidence required to prove the case against Stephen. As a result, the Court would not allow the Crown to rely on the evidence at trial. Despite 5 police officers attending trial to give evidence, we won the case. 

Stephen was well over the limit but avoided a conviction. The performance of the CPS in this case is not unusual. MAJ Law would estimate that in over 82% of cases dealt with so far in 2021, the CPS has not disclosed the correct evidence in time. 

The best drink driving defences of 2021

Thinking of pleading guilty?

Mitigation doesn't do a great deal in drink or drug driving cases. You're getting banned if you plead guilty. If you want to read more about mitigation, click here. That said, mitigation may help you avoid the more serious penalties like community service or prison. our mitigation page contains some example character references that can be used as templates. 

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

Expert legal support from M.A.J Law

M.A.J Law recognises that there’s nothing wrong with pleading guilty. In this circumstance,

we can seek to reduce the ban and/or penalties through expert mitigation. But it’s important to understand that this isn’t your only option. We can help you explore other avenues, and potentially remove the ban entirely.

As for drink driving solicitor fees, our initial advice is completely free. If you’d like us to take on your case, we set fixed fees that are charged in stages, so you never pay for work that isn’t necessary. To find out more about how we can help you, contact us directly or request a callback today.​

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series. 

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

A history of drink driving in the UK

Drink driving first became an offence in 1925 with the Criminal Justice Act. The Act made it an offence to in control of any mechanically-propelled vehicle on a highway or any other public place. The penalty was a maximum of £50 and/or imprisonment for up to four months, as well as a disqualification from holding a licence for at least one year. 

In 1967 Parliament introduced for the first time a legal alcohol limit. Interestingly, this limit remains the same today (80mg/100ml blood) which is surprising given the focus on road safety in recent years. In December 2014, the legal limit in Scotland was reduced to 50mg/100ml blood (22ug in breath). The High Risk Offenders Scheme was introduced in 1981. 

High breath reading - what does it mean?

The following readings are considered high;

• 70ug or above in breath
• 160mg or above in blood
• 214mg or above in urine

According to the Magistrates' Court Sentencing Guidelines, these levels can attract a disqualification of 20 months and community service. If your alcohol reading is greater, the penalty will increase. In the most serious drink driving cases you can be sent to prison.

If you're pulled over by the police, they may ask you to provide a breath sample at the roadside. The police can breathalyse you if:

1. They suspect you have been drinking alcohol (smell alcohol, receive a 'tip off' etc...)
2. You have committed a moving traffic offence (speeding, red light offence, no insurance etc...)
3. You have been involved in a road traffic accident (even if there were no other vehicles involved) 

Please remember the roadside reading is non-evidential. This means that it cannot be used in court. The police would have to take further evidential samples from you at the police station (or hospital) before you can be charged. If you refuse or fail to give further evidential samples, you could be charged with 'failing to provide' a specimen.

The evidential breath test

If you fail the roadside breath test, the police will arrest you and take you into police custody. This is usually a police station which has the facilities to take evidential samples from you. Here, a police officer will require you to provide two specimens of breath test on one of the following home office type approved devices:

1. Lion Intoximeter EC/IR
2. Lion Intoxilyser
3. Camic Datamaster

If you have a physical or mental condition preventing you from providing a sample, the officer may make a request for a specimen of blood or urine. As you can see below, the sentencing guidelines also apply to the level of alcohol found in your blood or urine. If the reading you provide is high, the greater the risk of a longer driving ban, community service and even a custodial sentence.

If the breath reading you provide in police custody exceeds 120ug, the starting point for the court is a 12-week prison sentence. This is because the Magistrates' or Judge will consider a high breath reading as a serious aggravating factor. This can be extended to up to 6 months if there are other relevant serious aggravating factors such as:

• A previous conviction for drink or drug driving or failing to provide a specimen within the last 10 years
• You were involved in an accident
• You are charged with other offences
• You had passengers in the vehicle
• You were driving for hire or reward
• You were driving a works vehicle i.e a van, LGV or HGV

Breath reading above 120ug

A breath reading over 120ug will almost always result in a prison sentence. The Magistrates' or Judge will pay particular attention to the 'prison threshold' when it comes to drink driving cases and sentencing. If your breath reading is above 120ug, as a starting point, the Magistrates' will always consider a custodial sentence. Before the Magistrates' retire to decide on the sentence, the high breath reading and a custodial sentence will be at the forefront of their decision, even when you have advanced strong mitigating circumstances and supplied various character references to the court.

It may be beneficial to consider your options if you are facing a lengthy ban or even a prison sentence. Speak to us today for free initial advice.

What sentence will I receive?

Defending an allegation of drink driving where the breath reading is high

As a starting point, it may be worthwhile checking and challenging the evidence against you, even where the breath reading is high. There are various different defences that can be raised in relation to the allegation. As strange as it sounds, there is more to the prosecutions case than just a breath reading. When you are first taken into police custody to provide a sample, the police have to carry out a specific procedure with you, this is known as the MGDDA procedure. This document will guide the officer through all of the questions, legal warnings and requirements the police are required to give to you before you provide a sample. If this hasn't been carried out by the officer and you've then gone on to provide a high reading, this can be raised as a technical defence.

The role of the Crown Prosecution Service (CPS)

Generally, the CPS don't prioritise drink driving cases except where there is a strong public interest. A high breath reading alone won't encourage the CPS to build a stronger case against you. In most cases, this can make it easier to defend drink driving allegations where the prosecution are unwilling or unable to source and provide important documents or evidence. The CPS are more likely to pay particular attention to case where the following factors are present:

1. Death or serious injury was caused
2. The case involves a high profile person i.e. a celebrity, politician or professional sportsperson 
3. The police were involved in a high speed chase
4. There are one or multiple previous convictions

The CPS will usually expect you to attend court for your first hearing, and enter into a guilty plea. Especially if your breath reading is high. If you attend court unrepresented, the CPS will pressure you into pleading guilty. It is important that you are able to have access to the CPS evidence so that you can make a fully informed decision. One of the first steps that we would take when representing somebody accused of drink driving, is to check the evidence against them. This is to ensure that any errors or missing pieces of evidence can be identified and raised at a first hearing. 

The importance of the first court hearing

The first court hearing in a drink driving case is by far the most important. The court will set the tone for how the case should be managed by both the prosecution service and the defence. Not only does the first hearing allow for representations to be made regarding your plea, it also allows for the recommendation of timescales for CPS evidence to be provided. This point is massively important in any criminal case, because a criminal case can only be proven with the correct evidence which is provided within the timescales set by the court. The court will usually set a short timescale in which all of the prosecutions evidence should be served. If the CPS default in providing full disclosure, the case cannot be proven at court.

First appearances are particularly important in challenging a drink driving allegation but also where a guilty plea is the only option. In combination with a guilty plea, it is important to advance personal mitigation or special reasons.

Drink Driving Sentencing Guidelines

All magistrates use sentencing guidelines before passing sentence. The purpose of the guidelines is to ensure that the sentence is fair and proportionate. You will know by now that drink driving offences carry mandatory driving bans (unless the court finds a special reason). Check the chart below to work out the length of your driving ban. You can also use our DRINK DRIVING BAN CALCULATOR for an instant result. 

If you have a previous drink driving, drug driving or failing to provide within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%.

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series. 

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

Will you go to jail for drink driving? 

Drink driving is an imprisonable offence. It is so serious that every person convicted of drink driving is at risk of immediate custody. The magistrates have the power to impose a prison sentence of up to 6 months for a single drink driving offence (more for multiple offences). 

Drink Driving Ban Calculator

Our DUI ban calculator will give you an idea of sentence. Please remember that every drink driving case is different. 

What happens in prison for drink driving?

If the court impose a custodial sentence, you'll be sent straight to prison in the "sweat box" (a prison van full with other offenders). If you think you're at risk of jail time, make sure you take an overnight bag to court. We recommend taking a change of underwear and toiletries. 

When you get to jail, you'll be strip searched by prison guards to ensure you're not concealing any prohibited items.  All prisons work on rigid timetables. When you first get to prison you'll be given a prison number. This number will stay the same even if you're moved to another prison. It allows prison staff to keep track of you and your belongings. Prisoners who follow the rules can earn privileges. This could either be more frequent visits from family or friends and being allowed to spend more money each week. You will spend the first two weeks of your sentence in the 'induction wing'. 

After processing you'll be given the opportunity to make a phone call. This call will last a maximum of two minutes and there is no way to receive a call back. If the call goes through to answer message this will still count and you will not get another call.

Inmates typically spend 23 hours a day in a cell no bigger than a parking-space and with no contact with the outside world. Most prisons are overcrowded meaning you may be required to share your cell with another prisoner. You will have to agree with your cell mate which bed/bunk and cupboard space is yours. There are often violent disputes about this. Prison guards will not disclose what offence your cell mate is in prison for. Nearly one-third of all prisoners are there for violent crimes. You will also have to agree a cleaning rota with your cell mate. Most cells are filthy because of the high turnover the prisoners.

Research by the Samaritans found that suicide rates in UK prisons were four-times higher than in general society.

Can I go to prison for drink driving?

Yes. You can go to prison for up to six months for drink driving. You are more likely to go to prison for drink driving if one or more of the following aggravating features apply;

• Your alcohol reading was high
• You were involved in a car accident
• There is evidence of bad driving
• You have previous motoring convictions (click to view our blog on previous convictions) 
• There were passengers in the vehicle 
• You are charged with other criminal offences.   

This is not an exhaustive list and you can still go to prison without these factors. Please remember that every drink driving case is different. The quickest way to find out if you'll go to prison is to speak to a solicitor. We can tell you within minutes if a custodial sentence is likely in your case. You can call for free legal advice on 01514228020.

What are the chances of me going to prison for drink driving?

If you provide a breath reading of 120ug and above, the starting point for the court when considering sentence is 12 weeks imprisonment. Your chances of a custodial sentence are increased if you are involved in an accident. The court will determine any aggravating factors and assess your 'culpability' - your blameworthiness when determining the sentence. If you have any previous convictions for drink driving, you are more likely to be sent to prison. 

If you think you might be at risk of a prison sentence, make sure you take a specialist solicitor to court. Drink driving cases are extremely technical and may not be as straightforward as you think. 

Many years ago I was sat in court waiting for my case to get called on. Another gentleman was sat in the dock whilst his solicitor addressed the court. I realised quite quickly that the solicitor had incorrectly advised the magistrates about the length of the driving ban. When the magistrates left the court room to deliberate on sentence I spoke to the legal advisor. I explained my concerns and the legal advisor agreed! I managed to reduce the sentence from three years to nine months! It wasn't even my client! The defendant had witnessed what had happened and thanked me before he left the court room! This is one example of why an experienced, specialist solicitor can make a difference.

What category of prison will I go to?

There are four categories of prison ranging from A - D. All prisoners, including drink-drivers are classed as Category B prisoners to start with. Prisoners are then categorised based on their behaviour whilst serving time in prison. Drink driving offences tend to carry a shorter sentence, so anyone sent to prison for drink driving will likely remain as a category B prisoner for the duration of their sentence. This means harsher conditions and more time behind a cell door. According to gov.co.uk, prisoners can be transferred to another prison of a different category at any time. Typical category B offences include:

• Robbery with a firearm
• Murder
• Serious / racially aggravated assaults
• Some sexual offences
• Firearms offences

How long will I go to prison for?

The Magistrates' Court can send someone to prison for up to 6 months. If you are sentenced to 6 months in prison for drink driving, you will likely serve half of your sentence, but this is ultimately decided by the Magistrates' or Judge. You will be given a determinate prison sentence. A determinate prison sentence is where the court sets a fixed length for the prison sentence. If an offender is sentenced to two years in prison, for example, that is the maximum time the offender could spend in custody, but they will not necessarily spend the whole of this time in prison. You may be released on licence for the remainder of your sentence once you have served half of your sentence. Any offence committed whilst out of prison on licence will usually mean an immediate recall to prison to serve the remainder of your sentence. 

What does being 'on licence' actually mean?

Most people are released from prison on licence. This means they must comply with certain licence conditions. Licence conditions are the set of rules prisoners must follow if they are released from prison but still have a part of their sentence to serve in the community. The aim of a period on licence is to protect the public, to prevent re-offending, and to secure the successful reintegration of the individual back into the community. They are not a form of punishment and must be proportionate, reasonable and necessary (Gov.uk). 

If you breach licence conditions you can be recalled to prison immediately to serve the remainder of the sentence. Your probation officer will look at your case and the explanation you give for breaching your conditions. They might give you a warning or they might decide to send you back to prison. This depends upon the seriousness of the breach and whether you've committed any further offences. If your probation officer thinks you should go back to prison, they’ll ask the Ministry of Justice to take you in. This decision can be taken very quickly - in some cases, the decision can be taken within two hours. You’ll be arrested and taken straight to prison. This would usually be your local prison, not necessarily the one you were released from.

If you committed another criminal offence while you were out on licence, you’ll go to court for that offence. If you’re found guilty, the new sentence will be added on to your old sentence.

How do I avoid a prison sentence?

If the court want to send you to prison, it can be difficult to avoid. An early guilty plea may reduce the length of your prison sentence by one-third, but you may still go to prison. An early-guilty plea will not necessarily reduce the risk of prison (only the length of time you spend in jail). Remember, you don't have to plead guilty and you may have a defence to drink driving. You can raise a technical drink driving defence even if you have provided a high breath reading in police custody. We deal with defences which are specific to drink driving on a daily basis. Personal reasons or 'mitigation' rarely succeed in avoiding a prison sentence. This is because of the Sentencing Guidelines which are in place for drink driving. The Magistrates' or Judge have no other option but to send you to prison if your breath, blood or urine alcohol level is excessively high. It's important that you obtain legal advice if you are worried about being sent to prison, as you may have a defence or a 'special reason' without realising.

Some of the most common drink driving defences includes;

1. The statutory warning was not given to you
2. The alcohol level is incorrect
3. You were not seen driving the vehicle or you consumed alcohol after driving 
4. The CPS fail to provide the correct evidence against you 

Can I get a suspended prison sentence for drink driving?

If the court feel that there are circumstances which mean that you should not be sent to prison, they can suspend the prison sentence. A suspended prison sentence is the term given to a prison sentence imposed by the court, and then suspended (ie 'delayed'). The court may decide to delay the prison sentence to allow the defendant a period of probation, or to undertake treatment for an addiction, or to meets conditions in the community. Assuming the person successfully completes the sentence without issue, they will not be sent to prison. 

Suspended sentences are more common than in the past because prisons are chronically overcrowded and underfunded. It is also much cheaper for the state to impose a suspended prison sentence than to be responsible for your care in custody. That being said, some drink driving offences are too serious for a suspended sentence. Before sending you to prison, the magistrates are required to consider whether a suspended sentence is appropriate. Your solicitor will also be given an opportunity to make representations to the court (in an attempt to persuade the magistrates not to send you down). It is critically important that your solicitor is properly prepared for the hearing, understands the sentencing guidelines and has gathered the appropriate evidence of mitigation (i.e. references, a personal statement, proof of employment). Your solicitor can also agree a 'basis' with the CPS upon which the court will sentence you. The CPS may agree to downplay the seriousness of the offence in return for a guilty plea.

Second drink driving offence? 

Lots of our clients have previous drink and drug driving convictions. We are often asked about the risk of imprisonment where a person has previous convictions. For obvious reasons, the magistrates are more likely to send you to jail if you have been convicted of similar driving offences in the past, particularly if those offences were recent (i.e. within the last 10 years).

We have produced a dedicated 'second offence' page to provide further information on this. If you have any questions about previous convictions, please get in touch. 

Drink driving prison FAQ's

Can my family visit me in prison?

Yes, but not straight away. You will spend some time in processing before you enter the general prison population. This can take up to two weeks. Many prison describe being 'lost in the system' during this time whilst they wait for a call and prison number. Until you have this information, your family cannot call you or send you money. A convicted prisoner is usually allowed at least two 1-hour visits every 4 weeks.

Will the court send me to prison if I have children to look after?

The court will take into account your personal circumstances before sending you to jail. If a prison sentence would have a disproportionate impact on children, they may suspend your sentence. If the offence is too serious for a suspended prison sentence, you will go to jail. Social Services will step in to care for children at home (assuming you don't have family who can care for children). In some cases, children are put into care. 

Drink Driving Prison Video

The impact of a driving ban on your military career

We know that losing your driving licence could mean the end of your military career. For service personnel, we also know that driving is an important part of the job and allows you to travel too and from your base, barracks or area of operation. If you are Army, RAF or Navy personnel, the consequences of a drink driving conviction can have a serious impact on your livelihood. 

Driving bans in the Magistrates' court

If you decide to plead guilty to drink driving, the Magistrates' will impose a minimum driving ban of 12 months. Depending upon the alcohol level, the driving disqualification could be for considerably longer.  The court will also order you to pay a financial penalty and you will receive a criminal record. In more serious cases, the court may choose to give you community service or send you to prison. A criminal record alone can severely affect your career in the military.

Court Marshall

We're asked a lot about military court proceedings. If you are in the military and you are charged with drink driving you can also be prosecuted in the military court. This is in addition to proceedings in the 'civi court' (which would usually come first). The Court Martial can pass the full range of custodial and non-custodial sentences available in the Civi Court (with the exception of POCA orders and disqualification from driving) and an additional range of sentences available under the Armed Forces Act 2006, including;

• dismissal from Her Majesty’s Service;
• detention for up to two years in military detention, and;
• reduction in rank.

Almost all defendants in the Court Martial are serving military personnel of good character and the consequences of these sentences upon them and their families can be very significant. (Judiciary.uk). You can read more about Court Martial on the official Judiciary Web Page.

Guidance issued by the Judge Advocate General recommends the following sentence for drink driving;

1. If you are under twice the legal limit, you can be fined up to 28 days pay.
2. If you over twice the legal limit, the penalty is 90 days detention (military prison).

Joining the military with a drink driving conviction

A criminal conviction such as drink-driving can have a profound impact on your chances being accepted into the military. You will be required to disclose any unspent criminal conviction if you attempt to join the armed-forces. If you are accepted into the military with a criminal record, your chances of advancing your career are slim. Contact us today if you are worried about a criminal conviction.

Crown Prosecution Service

If you are charged with drink driving, you will be prosecuted by the Crown Prosecution Service (CPS). The CPS is responsible for proving the case against you. They are responsible for gathering the evidence in a criminal case and presenting the case to the Magistrates.

Service Prosecuting Authority

The Service Prosecuting Authority (SPA) is the principal prosecuting authority within the Service Justice System and is responsible for the prosecution of service offences before the Service Courts. Which include, the Court Martial, the Court Martial Appeal Court, the Service Civilian Court and the Summary Appeal Court.

What Shall I Do if I’m Arrested for Drink Driving?

If you find yourself accused of drink driving, the first thing to do is secure expert legal advice. Please do not speak with law enforcement without first consulting with a solicitor. 

Before you do anything else, we strongly advise that you get in touch with our team of legal professionals to discuss your circumstances and options. Our team of friendly and non judgmental experts will be on hand to respond to you as soon as possible and help to navigate you through the situation from start to finish. Contact us today.

If you'd like to discuss your case in detail, contact our team of specialists on 01514228020. All our initial advice is completely free of charge. We are able to explain in straightforward terms what is likely to happen in your case. 

A drink driving charge doesn't always mean a ban

There are a number of different defences that apply to a drink driving charge. Just because you are over the drink driving limit does not mean you are guilty of drink driving. This blog aims to explore the ways in which you can avoid a ban for drink driving. 

M.A.J Law offer free initial advice to anyone charged with drink driving. We can explain your options in detail from the outset.

You may know by now that drink driving carries a mandatory driving disqualification. This means that you will be banned if you are convicted of the offence. The only way of avoiding a driving disqualification despite being convicted is by using a special reason. The length of your driving ban depends upon your level of alcohol. So, in cases involving higher alcohol levels, the ban is longer. The minimum driving disqualification is 12 months. The court can also impose a fine, community service or custodial sentence. Take a look at the guidelines below.

Drink Driving Sentencing Guidelines

If you have a previous drink or drug driving or failing to provide within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%.

FAQ - Sentencing Guidelines 

1. Can I pay a higher fine to avoid a ban?
   No. The fine is means tested and depends upon your income. It is usually around 100-150% of your net-weekly income. If you plead guilty at the first opportunity you would receive maximum credit on the fine. Maximum credit is one-third. Credit does not apply to the length of the disqualification.
   

2. I'm a carer for a family member. Will the court let me keep my licence?
   No. There are no provisions allowing a convicted drink driver to keep hold of their licence as a carer. Drink driving has far reaching consequences and will no doubt affect the people close to you. The court cannot take this into account when sentencing.

3. My friend got a 6 month ban for the same offence. Can I get a 6 month ban?
   No one can receive a 6 month ban for drink driving. The only exception is where the court finds special reasons. If you are convicted of being drunk in charge the court could impose a 6 - 12 month disqualification. This is only in the most serious drunk in charge offences. 

4. Will I go to prison?
   Going to prison for drink driving is unlikely. Only in the most serious circumstances will a person receive a custodial sentence for drink driving. The odds are greater if a person has a relevant previous conviction or if there were serious aggravating factors. 

How to get off a drink driving charge

Defend the charge

Under Article 6 of the European Convention on Human Rights everyone has the right to a fair trial. Drink driving cases take place in the Magistrates' Court. You can learn the difference between the criminal courts using the GOV.UK website. The prosecution process generally begins with the police making an arrest. Evidence is then gathered by the police to establish what actually happened and who was involved. In a drink driving case, evidence might include;

1. A breath reading
2. Witness statements
3. An MGDDA document

Once the appropriate evidence has been gathered, the police will decide whether it is sufficient to charge the suspect. In order to charge, the police must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the suspect. Depending on the type and seriousness of the offence committed, this decision is made by the police or the Crown Prosecution Service (CPS). If a person is charged with drink driving, they are usually released and bailed to attend the Magistrates' Court. 

In almost all cases involving a positive alcohol test, the police will charge the suspect. A date will then be set for the suspect to attend court for a first appearance. If you have been given a date to attend court you will no doubt be extremely worried. We have produced a detailed booklet about first hearings in the Magistrates' Court. You can access this here. 

There is nothing wrong with pleading not-guilty, even if you're over the legal limit. Every person has the right to challenge an allegation made by the police and to check the evidence against them. Not only can you continue to drive for 2 - 6 months, you will also see the full case file held by the CPS, including any witness statements and the MGDDA document. It is only by checking the evidence can you find fault with it. 

Last week we looked at the best drink driving defence of 2020. 

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Prosecution Disclosure

If you read our blogs regularly you will know that we speak often about the affect of prosecution disclosure (or lack of) in criminal cases. Under the Criminal Procedure and Investigations Act 1988 the CPS have a duty to provide you with;

1. The evidence is wants to use against you
2. A schedule of unused material

This disclosure should be served as soon as possible following a not guilty plea in the Magistrates' Court and usually within 28 days of the first hearing. But what happens if the CPS fail to provide disclosure within the permitted timeframe? 

A failure by the CPS to provide disclosure is one of the most common ways that we win drink and drug driving cases. This is because rules of evidence require the CPS to serve its evidence prior to trial. Often due to staff shortages and administration problems the CPS miss deadlines and make silly mistakes. This is a common occurrence in Magistrates' Court cases, usually because drink driving cases are less serious than other offences in higher courts.

Unfortunately it's not as simple as sitting back and letting the CPS slip up. The defence are required to be proactive in contacting the CPS and in some circumstances are required to call the case back to court for a pretrial review. As an experienced team of specialist defence solicitors, we can advise you on all of these issues. We know how to best safeguard your position in order to give you the best chance of winning your drink driving case. 

Special Reasons

A special reason is not the same as a defence. In other words, you can't defend the case using a special reason. Curiously, a special reason is not the same as mitigation either. Most defendants have some kind of mitigation to put forward (i.e. if I licence my job I'll lose my job), but not everyone has a special reason. The most common special reason arguments are discussed in our latest video. You can view this below. 

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series. 

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

Can I represent myself in court for drink driving?

By law, you are entitled to represent yourself in court, but this is a high-risk strategy. If you represent yourself you will be known as a 'litigant in person'. Judiciary.uk defines a 'litigant in person' as a person who has to go to court without legal representation from a solicitor or barrister. Most people facing a criminal conviction will have a solicitor or barrister with them during a court hearing. A solicitor or barrister is a legally trained advocate who can address the Magistrates', District Judge or Jury on your behalf.

Video - Why you shouldn't represent yourself 

Solicitor, Conor Johnstone, explains why it may be too risky to represent yourself in the Magistrates' Court. 

We would always advise having a regulated and qualified person with you in court and here's why;

1. Options. A solicitor will be able to obtain the initial evidence and advise you on your options. This might include pleading guilty, not guilty or a basis of plea. If the evidence is incorrect, your solicitor may be able to force the CPS to drop the case. 
2. Defences. We spend a lot of time defending drink and drug driving cases. When our clients first make contact with us, they assume they'll have to plead guilty. We are able to explain what defences apply and how likely they are to succeed. Take a look at the best drink driving defences of 2021. 
3. Mitigation. If you do plead guilty you will have the opportunity to raise 'mitigation'. LexisNexis defines mitigation as 'submissions made by the defendant or their representative as part of the sentencing process, presenting the information or evidence which they rely on to mitigate their role or involvement in the offence or their personal circumstances so that the judge can take this into account in sentencing'. Most people believe that mitigation is best presented by an advocate than a defendant. This is because it can come across as a 'sob story' if told by a defendant. In addition, whilst presenting mitigation it's important to understand the sentencing guidelines for drink driving. This way, your advocate can 'shape' your mitigation to reduce the penalty.
4. Pressure. Do you know what to look for? You are always entitled to see some evidence on or before your first court hearing. The kind of evidence provided in drink driving cases is highly technical. It's made up of procedural forms and documents. If you attend court alone, you may not pick up on the mistakes with the paperwork. Solicitors are trained to identify defences quickly and use these to put pressure on the CPS. Many of our cases are dropped on or before the first hearing. 
5. The 'groundwork'. If you do plead not guilty, the court will want to know the reasons why. A barrister a solicitor knows how to clearly present the defence issues and arguments to the court in way which the court will understand.
   
   

   ---

Are litigants in person successful?

Reviewing prosecution evidence, preparing and submitting legal arguments and challenging a case in court can be difficult if you don't specialise in defending motoring offences. It is important you get specialist legal advice from us at the earliest opportunity.

Can a family member represent me in court? 

A family member may offer their support to you during your court case. However, a family member cannot represent you in court. They cannot speak to the court on your behalf nor can they complete any important court documents on your behalf.

What will I have to say in court?

The court will want you to explain the reasons as to why you want to challenge the allegation. Technical defences require lots of consideration to the facts of the case. Criminal allegations including drink driving and drug driving can have serious implications including a custodial sentence, so should be taken seriously.

What if I cannot afford a solicitor?

You might choose you have no other option but to represent yourself because you cannot afford legal representation. We always offer a clear fee structure during our initial conversation and it's always a fixed fee.

Will I be successful if represent myself at court?

A number of sources have revealed that litigants in person may have difficulty understanding the nature of the proceedings and become overwhelmed with the oral and procedural demands of the courtroom. Studies show that litigants in person also have difficulty in explaining their case and can often end up 'over-explaining' or 'saying too much', jeopardising their chances of successfully defending a criminal allegation.  

Research also suggests that litigants in person will encounter a number of problems when representing themselves in court, such as:

• understanding evidential requirements
• difficulties with forms
• identifying facts relevant to the case
• understanding what constitutes a defence

FAQs - Representing yourself in court

1. How much preparation time will I need?

The groundwork involved in dealing with a criminal case can be time consuming even if your case is straightforward. 

2. How long will my case go on for? 

If you plead not guilty, criminal cases can take months to resolve. Pleading guilty will always result in an instant ban and that your case will conclude on the same day.

3. Can I use my personal circumstances as a defence to drink driving?

Many people charged with drink driving believe that the court will be less harsh with sentencing if they tell the court about any personal or mitigating circumstances. The courts hands are tied when it comes to sentencing for drink driving. An early guilty plea will still mean a minimum 12 month driving disqualification. 

Attention Hay-fever sufferers

Since the introduction of the new drug driving laws, the number of motorists charged with drug driving has increased by around 140%. Naturally, one would assume that those charged with this serious offence have taken illegal drugs. But this is not necessarily the case. Many of those convicted of the offence were taking prescription medication at the time.

As we enter the summer months, the new drug driving laws could also impact the 1 in 3 motorists that suffer from hay fever. Hay fever medication can cause drowsiness, lethargy and other impairing side effects, making you a potential target for police officers.

If you were taking prescription medication at the time, you may have a full defence to the allegation. The following defences may be raised to a drug driving allegation:

• The ‘medical defence’
• Other defences

The medical defence

This defence applies where;

1. a person has taken a drug that is prescribed or supplied for medical or dental purposes
2. a person has taken a drug in accordance with any directions given by the person who prescribed it
3.  the accused person’s possession of the drug was not unlawful under section 5(1) of the Misuse of Drugs Act 1971

The obligation falls on the defence to establish an 'evidential basis', such as a prescription or statement from a doctor. It is then for the CPS to prove beyond reasonable doubt that the defence cannot be relied upon. This is extremely difficult for the CPS, particularly where documentary evidence is put forward by the defence.

Even if you are successful with your defence, this does not mean that you got off ‘scot-free’. If the CPS are still satisfied that they can prove ‘impairment’, they may charge you with an offence under Section 4 of the Road Traffic Act 1988, resulting in a minimum 12 month disqualification if convicted. We can then present arguments to minimise a conviction. 

If you have been accused of drug driving it is crucial that you contact M.A.J. Law immediately. We may be able to take steps to prevent the CPS from charging you with additional offences (or even charging you at all). See our case studies. 

Other defences

M.AJ. Law has developed a number of defence strategies and technical legal arguments to win drug driving cases. Our complex defences usually relate to the four key defence areas;

• Procedure
• Consent
• Continuity
• Disclosure

For a full list of the legal limits for driving with prescription medication in your system, visit our dedicated drug driving page here.
If you would like to discuss your drug driving case with one of our specialist solicitors, please call:

0151 422 8020

What is exceptional hardship?

Lots of driving offences carry penalty points. If you’ve been caught one too many times, you may be left asking yourself: "can I stop a totting up driving ban?". A totting-up ban is issued by the Magistrates' Court when you accrue 12 or more penalty points on your driving licence within a three-year period – usually after three or four minor driving offences. The answer to your question largely depends on whether you seek the help of a solicitor and, of course, the type of solicitor you instruct.

Exceptional hardship is the process of persuading the court that a 6 month driving ban would result in disproportionate consequences for you or people who rely on you. You will need to go to court to make the argument and should present evidence on the day. Don't make the mistake of confusing 'hardship' with 'exceptional hardship'. You are supposed to suffer hardship for the offences that have been committed - that's the purpose of the penalty. Exceptional hardship is where the consequence for you, or others, far outweighs the crimes committed.

The court should automatically list the case for court without you asking. They will recognise the risk of a driving ban and give you the opportunity to argue hardship. Once you respond to the notice of prosecution and plead guilty, you will receive a letter in the post with date and time for court.

M.A.J Law is a specialist driving defence firm. We take the time to review your circumstances and determine the best plan of action in order to limit the consequences. Exceptional hardship is one way to avoid a lengthy driving ban.

Here, we’ve provided a broad overview of totting-up disqualifications. We explain what's involved in exceptional hardship, who can use it and how to maximise the chance of avoiding a 6 month driving ban.

Can I argue exceptional hardship?

You can argue exceptional hardship if the following applies to you;

1. you have reached 12 or more points on your licence; and
2. you've been driving for longer than 2 years; and
3. you have not argued exceptional hardship in the last three years*

Remember that the burden falls on you to prove hardship with the correct documentary evidence. The courts are more likely to find hardship if the driving ban would also impact others (like young children or elderly relatives).

*Should you wish to argue exceptional hardship more than once, you cannot use the same reason twice in any three-year period.

What happens at an exceptional hardship hearing?

An exceptional hardship hearing is similar to a trial. You may be asked to take the stand, swear on oath and give evidence to the court. If you are representing yourself, you will need to explain why your licence is important to you. The prosecution may also 'cross-examine' you about your circumstances with the aim of discrediting your evidence.

If you are represented by a solicitor you may not need to take the stand. Instead, your solicitor will present your case and any supporting evidence on your behalf. It is also less likely the CPS will question you.

If the court agrees with you, you will not be banned. If it does not, the 6 month ban starts immediately.

Why you should avoid exceptional hardship at all cost

Exceptional hardship should always be a last resort. The problem with exceptional hardship is that it leaves a lot to chance. You could prepare the strongest argument and bring to court the best evidence, but if the magistrates are in a particularly bad mood, they will ban you for 6 months. Your only option at that stage is to appeal to the Crown Court and re-run the application there (at a significant cost to you - and with no guarantee).

In our view, it makes more sense to check the evidence first. Whether you're accused of speeding, using a mobile phone, driving carelessly or failing to ID the driver, you have every right to plead not guilty and to check the evidence. If the police cannot produce the evidence in time, or if we can fault fault with the paperwork, the case will probably fail (meaning you are not convicted and cannot receive penalty points). If the evidence checks-out, you can later change your plea and run exceptional hardship. The number of penalty points cannot increase and the magistrates may not know you've previously challenged the case - meaning it can have no impact on the hardship argument.

To learn more about how we challenge driving offences, see our offences page.

You should also be aware that due a significant backlog of cases within the CPS office, lower priority motoring offences are often pushed to the back of the queue and forgotten about. This can lead to delays in disclosing evidence and practical problems in proving cases. For this reason - and many others - we continue to win driving offences.

The final problem with exceptional hardship is this - even if the court accept the argument and remove the ban, you are still driving around with 12 or more points on your licence for the next three years (or until the oldest set of points drop off). One more hiccup during that time and you cannot then raise hardship again. The 6 month ban is then inevitable.

How long is a totting up ban?

A totting up ban is 6 months. This means you cannot drive in any circumstances for 6 months. If you drive whilst disqualified, the court can send you to prison.

The mandatory minimum is a six-month ban, but this could be increased depending upon the following;

• Any aggravating feature making the case more serious - 6 - 12 months
• One driving disqualification for at least 56 days in the past three years – 12 months
• Two or more driving disqualifications for at least 56 days in the past three years – 2 years

Other aggravating factors can also increase the driving disqualification.

Over recent years the magistrates have become more strict on what constitutes exceptional hardship. In the past, the loss of employment was always enough to persuade the court to find hardship. Nowadays, you need more. The courts want hard evidence of hardship. You can read more about this below.

Can I appeal a totting up ban?

If the court rules against you and imposes a driving ban, you do have the option to lodge an appeal with the Crown Court. The appeal must be lodged within 21 days. You can even apply to have your licence reinstated while you wait for the appeal date. You can also appeal out of time (with the court's permission).

Why you should avoid lodging an appeal with the Crown Court

It's important to get the argument right the first time. It is twice as difficult to appeal a totting up ban. Not only are you asking a judge to find hardship, you are asking him to overrule the decision of his colleagues in the Magistrates' Court. To do so, the judge has to be sure the magistrates were wrong. In some respects, this is a higher standard of proof than in the Magistrates' Court and is not a decision taken lightly.

We regularly represent clients in the Crown Court. Many of them who contact us have read some outdated Do-It-Yourself guide online and thought "how hard can it be?". They very quickly regret the decision to represent themselves and the 6 month ban that comes with it.

Whether you fancy yourself as a lawyer or not, always try to seek legal advice from a suitably qualified advocate. Whilst there might be a cost to representation, many of our clients stand to lose a lot more if they're disqualified.

What evidence do I need for exceptional hardship?

There are a few simple steps that you can take to massively improve your chances of exceptional hardship. It is absolutely essential that you bring evidence of hardship to the court hearing. Without evidence, the court are unlikely to accept your argument.  

What evidence do I need?

Most magistrates use pro-forma booklets when presiding over hardship cases. These pro-forma documents set out the legal criteria required for hardship. Remember that magistrates are not legally trained and may not know what to look for, or what questions to ask. Our team of specialists are very familiar with exceptional hardship cases (having dealt with them for over 10 years). There are a four questions the magistrates always seem to ask in hardship cases, so being prepared to answer them can really help. See below.

1. Do you drive for anyone else's benefit?
   If a driving ban would impact someone else it is less likely to be imposed. After all, it was you who committed the crime. Think about the impact it might have on children or elderly relatives. Are you the person who's responsible for the school run or hospital visits? Can you get evidence to support this?
2. Why can't you take the bus?
   If taking the bus is an option the magistrates will not find hardship. If you were unsociable hours or carry equipment with you, a bus may not be feasible. It might be that you'd have to rely on three buses to get to work and wouldn't arrive home until late in the evening. One handy tip is to take the bus routes and timetables to court with you to show the magistrates. They won't just take your word for it. Perhaps map out the route to work and the timings of each bus.
3. Why can't you rely on taxi?
   Another common question is "what about a cab?". The obvious response is that it's too expensive. But is it more expensive than the cost of a car, road tax, an MOT and car insurance? We would always advise ringing two or three local taxi firms and 'pricing up' the cost of a taxi too and from work each day. If the cost is excessive, you can argue that it is not affordable.
4. Why can't you hire a driver?
   This might sound like a silly question, but it is one that is often asked in court. We regularly represent professional people in well-paid jobs. If the magistrates think you could afford a driver, they will ask you. Make sure you've got an answer ready.

Do I need to retake my test after a totting up ban?

You do not need to retake your driving test (theory or practical) after a totting up ban. In theory, the court could order an extended retest, but this is highly unlikely. Curiously, a totting up ban is the only type of driving disqualification that clears your licence. This means that if you're banned for 6 months because you accrued 12 or more points on your licence, it will be clean when you get it back (i.e. there will be no points on it). If the court finds exceptional hardship, the points remain on the your licence for the full three years. If you're caught once more during this time, the court will then impose the ban (unless you re-run hardship on different grounds).

I am a new driver - Can I argue exceptional hardship?

No. A new driver in the probationary period (2 years) cannot argue hardship. This is because under DVLA rules a new driver will receive a mandatory revocation once they accrue 6 or more penalty points within a two year period. The only way to get your licence back is retake your test (theory and practical).

In these circumstances it is better to challenge the allegation and try to avoid a conviction. If we can avoid a conviction (by finding fault with the evidence against you), the points will not be added to your licence. If you'd like to learn more about challenging motoring offences, see our offences page.

How does exceptional hardship work?

Hopefully you now have a much better understanding about how exceptional hardship works and what evidence you need. If you at all unsure about your options, or would like to discuss your case in confidence, please get in touch for free initial advice. We can explain in straightforward terms what is required in your case.

Can a solicitor help argue a totting up driving ban?

If you wish to defend your case, your first port of call should be to seek advice on totting up bans. We can help you figure out what’s required in order to face the courts. We will discuss the allegations with you and work out the best approach moving forward. Please remember that exceptional hardship is not the only argument - there are other ways to avoid driving bans. The purpose of a solicitor is to minimise the risk of 'worse case scenario'. We specialise in driving offences and have been standing next to our clients for over 10 years.

MAJ Law are specialists in totting up bans and are fully committed to helping you hold on to your driving licence or, at the very least, limit the consequences of your totting up ban. If you’ve got grounds to defend yourself against a potential driving disqualification, we’ll work hard to keep you on the road.

To get the advice and help you need, make an enquiry contact us today.

Exceptional Hardship Video

What is careless driving?

Careless driving (also known as driving without due care and attention) is one of the most common driving offences committed by road users. This is because of the broad definition of ‘carelessness’. Careless driving is defined by the Road Traffic Act 1988 as driving whilst falls 'below the standard of a careful and competent driver'. This is an objective test, meaning your experience as a driver is irrelevant. 

Penalties for careless driving can range from 3 penalty points to a driving disqualification. In more serious cases, where personal injury is caused, a person can go to prison for driving carelessly.

To ensure you’re able to achieve the best possible outcome for your case, we’ve outlined everything you need to know about careless driving.

What is classed as careless driving?

Common examples of driving without due care and attention include;

• Overtaking on the inside
• Driving too close to a vehicle
• Short distractions such as tuning a car radio
• Eating or drinking while driving
• Pulling out from a side road into the path of another vehicle
• Looking at a map while driving
• Lightly colliding with another vehicle

Penalties for careless driving

The severity of the offence and the level of harm will determine the penalty issued by the court. Your careless driving offence will fall into one of the following three categories:

Category 1

• Higher culpability and greater harm
• Penalty: Disqualification or 7–9 points

Examples of 'category one' driving offences include: an overtaking manoeuvre at speed, erratic driving, a collision at speed, driving bordering on dangerous.

Category 2

• Higher culpability and lesser harm or lower culpability and greater harm
• Penalty: 5–6 points

Examples of 'category two' driving offences include: loss of control due to speed, mishandling or insufficient attention to road conditions, turning right across oncoming traffic.

Category 3

• Lower culpability and lesser harm
• Penalty: 3–4 points

Examples of 'category three' driving offences include: momentary lapse of concentration, misjudgement at low speed. 

Higher culpability refers to factors such as aggressive/fast driving, driving whilst tired/unwell/contrary to medical advice, and carrying out other tasks whilst driving. Greater harm means things like injury to others, damage to other vehicles/property, and high level of traffic/pedestrians in the vicinity.

The guidelines below are used by the magistrates when sentencing for careless driving.

Defences for careless driving

1. Factual.
   I was not driving carelessly. There may be an innocent explanation for the manner of driving. You may dispute that the vehicle was ever driven carelessly. Who actually witnessed the incident and are they suitably qualified to say your driving was careless? 
2. Mechanical.
   There was a fault with my vehicle. This might include, for example, a power surge, electrical fault, engine malfunction, steering issue etc… Where the mechanical fault was sudden and unexpected, this could give you a defence. 
3. Driver Identification.
   Can the police prove that you were the driver of the vehicle at the time? What evidence do they have of this? Remember that just because the vehicle belongs to do, does not mean that you were driving at the time. 
4. Vehicle Identification.
   How common is your car? Could your vehicle have been mistaken for someone else’s?
5. Police Paperwork (NIP).
   Were you given a verbal NIP at the roadside? If you’ve received paperwork in the post, does it comply with the relevant statutory provisions?
6. Prosecution disclosure.
   Have you received full disclosure from the police? Does the evidence prove the case to the required criminal standard (i.e. beyond all reasonable doubt)? Often, due to miscommunication and poor administration, the police miss disclosure deadlines. We can then apply to exclude the evidence against you. 

Seek advice from MAJ Law

M.A.J Law offer free initial advice to all motorists. We can explain your options in minutes, so you know what to expect. Contact us today and speak to a member of our friendly team.

The consequence of a driving offence may not stop at a disqualification. Depending on the severity of the offence, you could be looking at a fine, a community order and even prison time. Most driving offences also carry the risk of a criminal record. At the very least, your insurance cost will shoot up and your job security may be under threat. Studies have shown that employers often overlook candidates with criminal records.

Those who try to deal with driving offences alone are much more likely to be convicted and face harsher penalties. Without legal help, the risk of losing your licence increases, sometimes with irreversible effects. Expert motoring solicitors have in-depth knowledge that could avoid a worse-case scenario.

It’s important to understand the many direct and indirect consequences of losing your licence, so we’ve highlighted them below. You’ll also find further advice about how a solicitor can help you get your licence back.

How can you lose your licence?

There are many offences that can lead to an immediate driving ban. These include;

• Driving whilst under the influence of alcohol or drugs
• Dangerous / careless driving
• Failing to stop after an accident

But many drivers often question whether less serious offences will result in a driving ban. For example, can you lose your licence for speeding? The answer is yes. If you’re caught speeding, driving carelessly/dangerously, or committing any other driving offence, you could be issued points. When you accrue 12 points, it’s known as a totting up ban. And if that happens, you lose your licence for a minimum 6 months period.

The consequences of losing your licence can be direct, indirect and of increasing severity. Let’s take a closer look at some examples.

Job security

Many people rely on their vehicle to get to and from work. For some, driving is essential to meet the demands of their job. Losing your licence could affect your ability to complete your duties, and therefore put your position at risk. It could also weaken your chances of attaining new employment.

Insurance cost increase

Even just a few points on your licence can cause your insurance premiums to creep up. So losing your licence entirely, whether it’s because you’ve accrued 12 points or been disqualified, can be very costly. The average increase in insurance premiums for a driving ban is 200% - this could continue for the next four to five years.

Paying a fine

Most driving offences also carry a financial penalty. Even a speeding offence could cost you hundreds of pounds. More serious offences, such as drink driving, could cost you thousands. Some financial penalties are means-tested (i.e. a percentage of your income). You can usually pay a fine upfront or in instalments.

Criminal record

If you’re convicted of any driving offence by the court, you’ll receive a criminal record which you’ll need to declare to insurers and current/potential employers. Unlike a regular criminal record, however, motoring-related offences only appear on your licence for a certain period of time.

Facing time in prison

In more serious cases you could be sent to prison. A first time offender convicted of drink driving or ‘failing to provide’ could face up to 12 weeks in prison. Custody is more likely for repeat offenders (i.e. those with previous drink or drug driving convictions). Prison sentences remain on your record for 5 – 11 years (depending upon the offence).

How can you get your licence back after losing it?

So, how long do you lose your licence for? This all depends on the type of offence and the seriousness of the case. A speeding offence, for example, could carry a disqualification of between 7 – 56 days. The minimum disqualification for drink and drug driving is 12 months (but often longer in most cases). Under the Road Traffic Act 1988, you do have the option to apply for the early removal of your driving licence.

If you were banned for three to four years, you can apply back after two years. In cases involving longer disqualifications, you need to serve at least half. Please note: Don’t worry if you have a previous conviction and want to get your licence back early. Under Section 42 RTOA, you can only apply where the ban is three years or longer. Anyone who applies under Section 42 is likely to have a previous conviction (which is why they received a three-year ban).

Reasons for the early removal could be family, health or employment-related, which the court will balance against public interest factors. The court will also consider your character, the offence and the arguments put forward. With the guidance of an experienced solicitor, you can give yourself the best chance of winning the appeal.

Seek help from MAJ Law

M.A.J Law can offer the support you need. We believe that every motorist has the right to affordable legal advice and representation.

Looking for expert advice on getting your licence back? Get in touch today – our team will be happy to help.

Data Source: Devon & Cornwall Police Freedom of Information Request 

So, what is Twocking and what are the penalties?

Taking without consent definition

Section 12 of the Theft Act 1968 creates an offence of taking a motor vehicle without consent. If the driver damages the vehicle they could be charged with 'aggravated vehicle taking'. 

Stealing a motor vehicle, also known as joyriding or taking without consent (TWOC) is an offence committed if you drive any motor vehicle without the owner’s permission. However, you are not guilty of the offence if you believe you had lawful authority to take the vehicle, or you genuinely believe the owner would have given you permission to drive the vehicle.  

There is also a separate offence of “allowing yourself to be carried” in a vehicle without consent (as a passenger).  

Taking without consent is a 'summary only' offence. This means that it can only be heard in the Magistrates' Court. The maximum penalty for TWOC is 6 months in prison and a £5000 fine. Most people convicted of twocking receive a community penalty. 

Can I get banned for Twocking? 

Twocking does not carry a mandatory driving disqualification. This does not, however, mean that you will not get banned if you are convicted of 'taking a motor vehicle without consent'. The sentencing guidelines below outline the most likely penalties for twocking. You will note that the chance of being banned depends upon the seriousness of the offence. 

Examples of high seriousness

• A leading role in the offence
• Burning the vehicle
• Using the vehicle to commit other crimes 
• Vechile belonging to a vulnerable person
• Carrying passengers 

Examples of low seriousness 

• You were coerced into taking the vehicle 
• Limited understanding of the offence 
• Exceeding authorised use
• Using a rental car beyond return date 

Aggravated TWOC

The biggest difference between TWOC and Aggravated TWOC is that aggravated TWOC is an either-way offence. This means that, depending on the seriousness of the offence, it could be sent for trial in the Crown Court (in front of a jury). It is also much more likely a person would be sent to prison for aggravated twocking. 

Aggravated TWOC carries a maximum penalty in the Crown Court of two years imprisonment and/or an unlimited fine. The maximum penalty in the magistrates’ court is six months imprisonment and/or an unlimited fine. A driver could be charged with aggravated TWOC if they take a vehicle without the owner's permissions and;

• Property was damaged 
• The vehicle needs repairing
• An accident occurred and injury was caused 
• The vehicle was driven dangerously 

Alcohol is broken down by the liver at a rate of around 1 pint per hour for men. Factors such as age, weight, gender, and amount of food eaten can affect how fast the body can process alcohol. The rate of alcohol absorption cannot be increased by sleeping, drinking water or sucking a penny (a common myth)! About 10% of alcohol is eliminated through breath, sweat and urine.

The rate at which we eliminate alcohol is important, particularly in the context of a drink driving case. What if your breath reading was much higher than expected? What other factors influence elimination rates? 

A positive breath, blood or urine result does not make you guilty of drink driving. We regularly win cases due to procedural mistakes and legal loopholes. As a general rule, you should always check the evidence.

For Men -

The average UK male is 5ft 9in tall (175cm) and weighs 13 stone (83kg). A pint of beer (3.6%) contains 19.8ml of alcohol. 

5 steps to take if you're charged with drink driving

1. Carefully review the police paperwork
   Often the police make silly mistakes on official paperwork. Our recent case study talks about mistakes with police paperwork. 
   CASE STUDY - Missing evidence
2. Seek free legal advice from a specialist firm
   A specialist firm can advise you on technical points of law and procedure. You can read more about technical defences here.
3. Consider your options 
   Do you know what a 'basis of plea' is? Do you know what to include in mitigation? Can you plead not guilty?  
4. Consider any available defences
   You may have a defence without realising. Even if you can't defend the case, you may have a special reason to avoid a ban
   DRINK DRIVING SPECIAL REASONS
5. Check the evidence against you
   How will know if the evidence is correct if you haven't seen it? 
   Why you should check the evidence

Remember - Don't just plead guilty. You may have a defence to the allegation without knowing. Every drink driving case we have ever won in court starts with a breath reading above the prescribed limit. 

If you're stopped and arrested on suspicion of drink driving, you are likely to be breath tested. The legal limit for alcohol in the UK is 35 microgrammes (ug). However, the police do not prosecute until 40ug to allow for unreliable readings or over-estimations. 

An evidential breath test machine has to be correctly maintained by the police. This means regular servicing and recalibration. Often, due to miscommunication and poor training, the police fail to correctly maintain breath machines. Remember that you can always ask the police to provide calibration data (this includes maintenance logs and service records). 

To read more about Type Approval Orders in the UK, click here. 

Drink Driving Ban Calculator 

How to speed up alcohol metabolism

Unfortunately, there is practical way to speed up alcohol metabolism. If you eat before drinking alcohol you will metabolise alcohol quicker than on an empty stomach. This is because the food in your stomach will help to absorb the alcohol (reducing the amount that enters your blood stream). It is also due to an increased blood flow and increase liver enzymes (which help to break down food and drink). 

However, eating after drinking alcohol is not a fool-proof way of avoiding a drink driving charge. A full stomach will only slightly increase your absorption rate. In addition, once the alcohol has actually entered your blood stream, there is no way of reducing its content. 

Useful Links 

• Drink Driving Sentencing Guidelines
• How alcohol affects our brain chemistry
• Turning Point - Alcohol addiction & help

M.A.J Law Video Series 

Whether you use your vehicle for work, home-life or just for pleasure, a driving ban can have a devastating impact. Drink driving carries a mandatory driving disqualification, meaning the court has to disqualify you if you are convicted. In more serious cases the court can impose community service or prison. Hundreds of motorists go to prison each year for drink driving related offences. 

At the time of writing, M.A.J Law has never had a client go to prison for a drink driving offence alone. 

Three ways to avoid a drink driving ban

The purpose of this video is to discuss the three most effective ways to avoid a drink driving disqualification. Drink driving is a very serious offence - it is a criminal conviction - and it is always in your interests to consider the options open to you. M.A.J. Law are always happy to discuss those options with you, completely free of charge.

1. Find fault with the evidence
   
   The first way that you can avoid a disqualification for drink driving is by finding fault with the evidence against you. The most important document that we need to check is the MGDDA document. The Manual Guidance for Drink Drive pro-forma 'A' (MGDDA) is a 25 page document that guides the officer through the breath test procedure. It contains all the important questions and legal warnings that he should give you before he can legally take that specimen of breath from you. The MGDDA document needs to be completed during the evidential breath test procedure (usually in the breath test room). If the officer fails to complete the MGDDA document with you, the CPS may not be able to use the breath readings in evidence against you.
   
   As for the reasons why an officer may fail to complete the MGDDA document, drink driving is a time-sensitive offence. Any alcohol present in your system will rapidly reduce as time passes. That can be a huge concern for any officer wanting to get the highest breath reading from you, particularly if your roadside reading was between 40 and 50 micrograms.
   
   M.A.J Law regularly find fault with the documentation presented by the police and CPS in drink driving cases. Many police officer have never received training on drink driving offences. Resources, budget cuts and time-pressures are all reasons why drink driving cases collapse.
   
   
2. Disclosure delays 
   
   The second way that you can avoid a disqualification for drink driving is by taking advantage of the way the prosecution deal with these cases. If we enter a not guilty plea in the first appearance, we then trigger what is known as further disclosure. That means the prosecution have to provide all the outstanding evidence against you, usually within 28 days. In 90% of cases that we deal with as a firm, the prosecution will fail to serve the evidence within that 28 day period. We win anywhere from 60 – 70% of these cases as a direct result of the prosecution not making all the evidence available to us within the correct time limits.
   
   
3. Special Reasons
   
   The third way that you can avoid a disqualification for drink driving is by successfully arguing a special reasons argument. In order to raise a special reason you have to enter a guilty plea to the allegation. You have to accept that the offence has been committed, but the circumstances are such that you shouldn’t receive the full length of the disqualification, or indeed any disqualification whatsoever. The three most common special reasons arguments are spiked drinks, shortness of distance driven and reflux.

If you’d like any more information about the points I’ve raised today, you can go onto our website, you’ll find resources, case studies, there is lots of information relating to drink driving offences. We’re always happy to give free legal advice over the phone.

Medical Cannabis - What are the rules?

M.A.J Law Ltd are a specialist team of driving defence solicitors. All our time is spent challenging police and prosecution cases on technical points of law and procedure. Our team have been fighting for clients for over 10 years.

In 2015, the Government created a new offence of drug driving. At the same time, public perception on the use of cannabis began to change. Other countries around the world began to recognise the medicinal benefits of the drug and took steps to legalise it. Despite this, the legal limit for cannabis in this country is zero-tolerance (2 micrograms). 75% of all our drug driving cases relate to cannabis. 

We often find ourselves engaged in conversations with clients about the use of cannabis. Some of our clients have successfully secured cannabis prescriptions from doctors, others purchase it online illegally. Please remember that CBD oil purchased online with a THC content greater than 0.2% is illegal.

So what are the rules on medical Cannabis prescriptions in the UK? Do you qualify and how do you get a prescription?

This blog explores some of those questions. 

How do I get a Cannabis (Weed) prescription? 

Any doctor on the GMC register can prescribe cannabis. This includes a GP, who can prescribe under shared care arrangements (usually with the guidance of a specialist). Cannabis can be prescribed for conditions such as; 

• Anxiety
• Depression
• Chronic Pain and neuropathy 
• Panic Attacks 
• ADHD
• PTSD
• Epilepsy

The NHS do not routinely prescribe Cannabis due to limited guidance for doctors, so it can be extremely difficult to persuade your GP to issue a prescription. Cannabis is only offered as a last resort treatment, when other front-line medicines have not been effective. Cannabis is more likely to be prescribed if other medications have produced adverse side effects. Adverse side effects include drowsiness, addiction, inability to concentrate, sickness etc... Speak with your GP first and make sure they known of any side-effects you have suffered. 

Medical Cannabis Clinics 

There are a number of specialist cannabis clinics that will provide further advice about your medical requirements. A quick Google search will provide a range of clinics that offer help with Cannabis prescriptions. Below are some of the most popular clinics in the UK;

1. The Medical Cannabis Clinic
2. Sapphire Medical Clinic
3. My Access Clinics

How do I get a Cannabis prescription?

The chosen clinic will ask you book a consultation. Consultation fees range from £99 to £300. Before the consultation, it is worth contacting your GP for a referral letter. A GP can refer you to a private practice (or chosen clinic) for specialist treatment. Obtaining a referral letter will help speed-up the process and avoid delays. The clinic will then gain access to your medical records and make a decision as to whether you qualify for medical cannabis treatments. 

You are far more likely to get a cannabis prescription in the private sector. At the time of writing, no new cannabis prescriptions have been issued by the NHS in the last 18 months (mostly due to the 'red tape' and practical difficulties). There are three exceptions where cannabis prescriptions are regularly issued. The first is for patients who suffer with multiple sclerosis. The second is childhood epilepsy. The third is for severe nausea and vomiting, usually during chemotherapy.

Can I drive with a Cannabis prescription?

In theory, yes. The only problem is that the legal limit for Cannabis is zero-tolerance. This means it's a trace-level limit. Even half a Cannabis joint the day before could put you over the legal limit. The CPS do not need to prove that you were impaired by the Cannabis or under the influence. 

If you are charged with drug driving but have a prescription, you may have a full defence to the allegation. Take a look at Section 5A of the Road Traffic Act 1988 below;

(3)It is a defence for a person (“D”) charged with an offence under this section to show that—

(a)the specified controlled drug had been prescribed or supplied to D for medical or dental purposes,

(b)D took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributor of the drug, and

(c)D's possession of the drug immediately before taking it was not unlawful under section 5(1) of the Misuse of Drugs Act 1971 (restriction of possession of controlled drugs) because of an exemption in regulations made under section 7 of that Act (authorisation of activities otherwise unlawful under foregoing provisions).

Subsection 3 gives you a defence if you are prescribed the drug and taking it inline with medical guidance. Of course, this may not stop the police from arresting you and taking blood, but it would give you a defence in court. It is also advisable to carry around a copy of your Cannabis prescription in your vehicle. This can then be presented to any traffic officer asking questions about drug driving! 

M.A.J Law offer free initial advice to anyone charged with a criminal motoring offence. You can call our solicitors direct on 01514228020. 

M.A.J Law has no affiliation with any of the clinics listed above. 

A reputation built on results

We believe that every motorist has the right to specialist, affordable legal advice and representation, no matter what the offence. Driving has become an integral part of our daily lives. Without a driving licence, most of us couldn't work, visit family or pay the bills! The Road Traffic Act sets some of the lowest legal limits for alcohol and drugs in all of Europe, combined with the harshest penalties. Our aim is provide every client with a fair opportunity to defend the charges and check the evidence. Don't be pressured into pleading guilty without considering your options.

Defending a criminal charge isn't a difficult as you might think. Due to funding shortages and administration problems the police cut corners. By identifying these mistakes early on in your case, we may be able to avoid court proceedings. Our aim is to win your case and keep you on the road.

M.A.J Law represent clients across the country. We have first hand knowledge of every Magistrates' Court in England and Wales. Over the decades, we have helped thousands of motorists avoid driving disqualifications. There is no secret to our success and certainly no magic formula; we simply apply the law and check if due process has been complied with. For a better understanding of how we challenge driving cases, take a look at our case studies below. 

Need Free Initial Advice? Call now on

01514228020

We can explain your options in minutes 

Driving offences covered;

• Drink Driving Offences
• Drug Driving Offences
• Failing to provide a specimen 
• Speeding Offences
• Dangerous & Careless Driving 

Drink Driving Offences

Drink driving carries a mandatory driving disqualification of between 12 - 36 months (longer for more serious offences). You can calculate the length of your driving ban by using our drink driving penalty calculator. 

We always advise our clients to check the evidence against them. How else will you know if a mistake has been made? It is not appropriate in all drink driving cases to plead not guilty, but in most cases it makes sense. By pleading not guilty the following things will happen;

1. You can continue to drive for 3 - 6 months 
2. You will force the CPS to provide additional disclosure 
3. You cannot receive a longer ban even if later convicted 

To better understand your options, call our specialist solicitor for free advice. We can tell you within minutes what the likely outcome will be. 

Drug Driving Offences

Drug driving carries a mandatory minimum 12 month driving disqualification. The legal limits for drugs in the UK are indicative of our government's hardline approach to drug consumption. Many of those prosecuted for drug driving are not under the influence of drugs and are not impaired to drive! Believe it or not, the CPS do not have to prove that you were impaired by the drug - only that you had it in your system! 

Let me summarise the common problems with drug driving offences;

1. Due to lack of training and limited resources, many police officers have not been trained to conduct drug driving procedures
2. A number of police-approved laboratories have been closed down recently due to on-going problems with quality control 
3. The CPS often misunderstand drug driving cases and fail to prosecute them effectively 
4. Due to delays in analysing samples, many blood results are unreliable and cannot be used in court

We continue to win a phenomenal number of drug driving cases. If you would like to speak about your drug driving case, please get in touch. 

Failing to provide a specimen offences

There are a number of different failing to provide offences that you could be charged with. All of them are extremely serious and can result in immediate custody. That being said, failing to provide offences are often 'easier' to win due to unusual legal framework and burden of proof. For more information on failing to provide offences, visit our dedicated motoring page. 

Speeding Offences

Most people have been caught speeding at least once in their driving career. Many receive the option of a speed awareness course and will never require the help or assistance of a specialist motoring lawyer. In more serious cases, however, you could receive an immediate driving ban, sometimes up to 12 months. Speeding offences are made up of many different components and, surprisingly, are some of the most complicated offences to challenge. There are a few things to check if you've been caught speeding;

1. Were you pulled over or did you receive an NIP? If you were pulled over it is likely the police used a laser device or follow-check. Both methods are susceptible to human-error and analytical inaccuracies. If you were not pulled over and have received an NIP, is it compliant and is all the information correct? 
2. Can the police identify the exact legislation being used to prosecute you? This is often referred to as the 'local order'.
3. Has a secondary check been conducted and are the calculations correct? 
4. Will the CPS go to the trouble (and expense) of bringing witnesses to court or is there a good chance they won't turn up? 

You can read more about speeding defences and exceptional hardship on our page. Alternatively, get in touch for free legal advice. 

Dangerous & Careless Driving offences

M.A.J Law are now regularly representing clients that are charged with serious driving offences such as;

1. Causing death by dangerous or careless driving
2. Causing serious injury by dangerous driving
3. Dangerous and careless driving 

It is no surprise that any offence where injury is caused can carry a lengthy prison sentence. It is more likely you would go to prison if drink or drugs are involved, even if you're confident these substances did not contribute to the offence. As like with any motoring offence, there are different defences that can be used to win these cases. 

It is obviously much more sensitive if a person is killed or seriously injured. Often due to pressure placed on the police by family members of the deceased or media campaigns, drivers are wrongly charged with causing death or serious injured when the evidence is inadequate. To speak in confidence about your cases, call us directly on 01514228020. 

Going to Court for a motoring offence

The prospect of court proceedings can be extremely worrying, but try not to panic. We have stood beside our clients for over 10 years. Our reputation as the UK's leading motoring defence firm is founded on our ongoing and unbeatable results. The concept of winning cases for our clients has become an obsession for our legal team. We will do as much as possible to help you achieve the best outcome - and we're prepared to work night and day to help you. 

The difference with M.A.J Law is that our solicitors go to court. That might sound like a silly statement, but many solicitors do not step foot in court. Traditionally, solicitors handle the day-to-day litigation of a criminal case (i.e. the paperwork) and barristers handle the advocacy (i.e. representation). This is disjointed and can cause practical problems in court. Of course, there will be occasions where sending a senior barrister to court is beneficial to the client - but not always. All of our solicitors represent clients in court and on the front line. We don't hind behind barristers! This means that not only do we have first hand knowledge of all magistrates courts, we're more familiar with your case because we've handled the litigation. 

In most cases you will not be required to speak in court. We will do the talking for you.

Please be aware that many of our cases never reach court. Winning a criminal case is nice, but winning it before it goes to court is even better. To understand more about how we can stop your case reaching court, speak with us today. 

Instructing a solicitor for a motoring offence

Do you actually need a specialist solicitor for a motoring offence? 

We taken a closer look at this question in one of our recent blogs. Here you'll find all the information you need. 

Motoring offence solicitors fees

One phrase jumps to mind when we talk about legal fees - 'a false economy'. 

A false economy is defined by the Oxford English Dictionary 

Motoring Offences FAQ's

Drug Driving Case Dropped

Our client, Ian, was charged with two allegations – one of driving while under the influence of cannabis and another that he drove with 16 times the legal limit for cocaine in his system. We advised Ian to enter a not guilty plea at his first court hearing because we had identified various issues with the evidence against him. The trial took place at Bristol Magistrates' Court this week. 

After legal arguments were presented, District Judge Gerald Chalk, ruled that the Crown Prosecution Service (CPS) lawyers had failed to prepare the case properly and it would be unfair to allow the prosecution to continue. The case was therefore dismissed and our client was awarded costs. 

The most dramatic allegation our client faced was that he drove with 800 micrograms of benzoylecgonine (the cocaine breakdown product) in his blood-stream. The second charge – also denied – was that he had just over twice the legal limit of cannabis in his body.

Drug Driving Legal Limits

(‘µg/L’ means ‘micrograms per litre of blood)

“Slipped through the net”

In court, an initial report on the blood samples given by our client following his arrest had been prepared. But in all such cases defendants have the right to have a second, more detailed analysis carried out on the blood sample. This report, known as the SFR2, usually represents the key piece of prosecution evidence. This was not produced in Ian's case (as is becoming more common now). You can read more about technical defences here. 

Mr Travers for the prosecution told the court that the request had slipped through the net within the CPS! The mistake was identified a week ago but given the workload currently faced by the forensic laboratory which is used by the CPS for such cases, it had not been possible to action the request at such short notice.

Senior solicitor of M.A.J Law, Mr Conor Johnstone, advised the court that he had sent at least three communications to the CPS about the case, with some of those messages copied to court officials. A police officer who was involved in the case should also have attend the trial – yet that officer had not appeared at court! A read shambles all around! 

In summing up, the Judge said that it is "becoming an increasingly common problem that the CPS are not providing evidence or disclosure of important documents which are needed.” “The CPS has manifestly failed to do the preparatory work. I have to be fair to both sides and it would not be fair to continue.”

In view of the judge’s comment, the prosecution formally offered no evidence and invited the judge to dismiss the case.

Judge Chalk proceeded to formally dismiss the charges.

__________

This is just another example of why evidence must be challenged. It highlights the increasing number of cases that the Crown Prosecution Service fail to provide simple and basic evidence within a timely manner, in order to prove a case against the accused. The Crown Prosecution Service are relying more and more on guilty pleas being entered without such evidence being required and to be disclosed to those accused of motoring offences.

The full article can be found here.

Mitigation in drink and drug driving cases

Everyone charged with a criminal offence has a fundamental right – to plead not guilty. As a firm of specialist solicitors, we would always advise our clients to check the evidence. What if the evidence is incorrect or incomplete? If you have been charged with drink or drug driving, you should ask for the following;

1. The MGDD documents (MGDDA and MGDDB documents) 
2. Witness statements from the police and, if your case involves blood, the nurse
3. CCTV showing the evidential breath, blood or urine procedure (or body worn video)
4. The schedule of unused material
5. In cases involving blood and urine, the SFR1 and SFR2

If you have not received the evidence above then it is important that you contact us immediately. We can contact the CPS direct to request the appropriate evidence. This is usually emailed across and can be reviewed quickly. We can then advise you regarding your options and the best approach. 

Will a not-guilty plea increase my ban?

This is a common misconception.

If you are convicted by the court after pleading not-guilty you will lose credit. However, that credit only relates to the fine, community order or prison sentence. In reality, more defendant’s are only ever looking at a fine. An early guilty plea will result in a reduction of 33% on the fine. The length of ban remains the same, even after a trial. For most people, the ban is the biggest concern. This will not (and cannot) increase if you choose to challenge the case.

Am I allowed to plead not-guilty if I am guilty?

This is an unusual, but common question.

It is important that you think about what ‘guilty’ actually means. By pleading guilty, you are admitting to the alleged offence. You may accept that you drove whilst over the limit, but this will not make you ‘guilty’ per se. If it did, then a large number of our clients would be ‘guilty’. Cases often fail because of procedural mistakes, prosecution inefficiencies and technical defences. By pleading guilty, you are accepting that every part of the process was completed correctly. How can you be sure of this without checking the evidence?

Will I be asked questions at court?

The only person who will ask you questions is your solicitor. Ultimately, you have the right to chose. First of all, you would never be questioned by a prosecutor on your first court date; as you are not there to give evidence but to enter a plea. If the cases proceeded to a trial, then it is up to you as to whether you give evidence. No one can force you to speak; you have a fundamental right to silence.

Of course, if you attend without a solicitor then yes, you will be expected to answer questions in court.

What are my chances of winning?

Now that we have established that your ban won’t increase and that you don’t have to answer questions in court, you might want to think about your chances of ‘winning’ your case. ‘Winning’ comes in many forms – the CPS dropping a case, a ‘deal’ being struck, a ‘not-guilty’ verdict.

It is a proven statistic that if you instruct M.A.J. Law, you are more likely to win your case than to lose it. For most of our clients, that is enough. You can read more about our success rates on our individual offence pages.

Whilst we would never advise a guilty plea without checking the evidence, some clients are certain it is best for them. We would support your decision no matter what – and will always employ certain techniques to ‘reduce the damage’. So the key questions is:

Can mitigation help to reduce my sentence?

…the answer is yes. Any person who pleads guilty (or is found guilty) will have an opportunity to present mitigation to the court. The purpose of mitigation is to focus attention on the positive aspects of the case in order to reduce culpability or seriousness. It is important that we help the magistrates understand why the offence was committed. For example, if a client is found to be drug driving at 11:30pm on a Sunday evening, the court should be informed that the roads were quiet, there were no pedestrians etc… By focusing the attention on positive aspects, we should achieve a better outcome.

It is important to understand that a mitigation is not and cannot become a defence. A common error is for the defendant to put forward so many excuses and explanations that their mitigation is rejected because it amounts in fact to a “not guilty” plea. The critical distinction is to persuade the court that you are ‘less guilty’ rather than ‘not guilty’.

You will need to explain to the court how the likely punishment would affect your life and possibly others around you. The court may want to hear what steps you are willing to take to prove that this will not be a repeat offence (such as rehabilitation course, counselling, employment etc…).

A defendant who is willing to help himself, will be helped by the court.

We should try and persuade the court that;

• The defendant is remorseful & sincerely apologetic (note: the Magistrates’ Court Sentencing Guidelines specifically lists ‘genuine remorse’ as a mitigating factor)
• The defendant will not make the same mistake again (this addressing ‘reoffending’)
• There was a justifiable reason for driving the vehicle (this will help to counter the prosecution’s facts)
• The standard of driving was not careless or dangerous (this will reduce your culpability)
• The defendant was fully compliant and cooperative
• The circumstances which led to the offence were beyond the defendant’s control

Can mitigation reduce my driving ban?

In theory, mitigation should not reduce your driving ban. In reality, it may.

The key factor in determining disqualification periods is the result of the breath, blood or urine sample. In ‘failing to provide cases’, the key factor will be your demeanour at the police station. In drug driving cases specifically, the starting point is a 12 month disqualification for a first time offender (even if the result is high).

If the magistrates understand your circumstances, and accept your mitigation, they may reduce the disqualification period. There is nothing in law which requires them to do so but, just like me and you, they are human and can empathise with defendants. This is the importance of a well structured and compelling plea. Not all mitigation is relevant. It is for your solicitor to identify the key facts and present these to the magistrates.

M.A.J Law are a specialist driving defence firm. We have considerable experience in representing clients charged with serious motoring offences. Whether you want to challenge the case and avoid a ban, or mitigate to reduce the penalty, we can help. 

Our team are often asked about offence codes and what they mean. You might be interested to know what offence code applies in your case, or perhaps you've noticed a code and what to know what it means. 

To check if your licence contains any offence codes you will need to log-in to DVLA Online. Before you do so, you will need your Driving Licence number and National Insurance number. Once you're in, you can view the status of your driving licence and a history of any endorsements. It will look something like this (assuming you have a clean licence):

If you have previous driving endorsements you may see these appear on your driving record under the 'Penalties and Disqualifications' section. A driving endorsement will not appear on your licence if;

1. You have not yet been convicted, or;
2. The conviction is spent

If you spot an endorsement which you know nothing about, you could have been convicted of an offence in your absence. If you have been convicted of an offence without knowing, your insurance could be invalid. You may also owe money to the court. To find out what do in these circumstances, click here (anchor link). 

Licence Codes 

The first thing to know is that there are two different types of offence code;

1. Licence Endorsement Codes
2. CCCJS Codes

1. Licence Endorsement Codes

A licence endorsement code is a four-digit code added to your driving licence following a motoring conviction. Once this code is added to your licence there is no way to remove it. Below you will find some of the most common endorsement codes. 

For a full list of offence codes, check out to the .Gov website.

2. CCCJS Codes

CCCJS Code are different to driving offence codes. You will find your CCCJS code on the charge sheet next to the offence you have been charged with (or below). You can see an example of this here:

CCCJS Codes are more important than you might think. They allow the court and CPS to quickly identify the offence you have been charged with. You should review the offence code on your charge sheet and check the table below. The type of offence you have been charged with will determine the number of penalty points or the risk of a driving ban. You may have a defence to the allegation without knowing. To read more about defences, check out our offence page. 

Some of the most common CCCJS codes include:

FAQ - Offence Codes

1. I've noticed an endorsement I know nothing about
   You may have been convicted of an offence in your absence. This is likely to have happened where you have not received the summons for court. The most common offence in these circumstances is 'failing to ID the driver' and is identifiable by the following offence code: MS90. If you have been convicted of an offence in your absence you may be able to make a statutory declaration (within 14 days) or a Section 142 application. 

2. How many penalty points before I'm banned? 
   If you have been driving longer than 2 years, you can accrue 11 points on your licence before begin banned. If you hit 12 penalty points within a three years period the court will disqualify you for 6 months (unless the court finds exceptional hardship). It is not necessary to re-take your test in these circumstances. If a new driver accrues 6 penalty points in the first 2 years their licence will be revoked by the DVLA. This means you will need to retake your test (theory and practical). 

3. Can I apply for an endorsement to be removed from my licence?
   No. Once a person has been convicted of a motoring offence there is no way of removing the licence code (unless that person was convicted in their absence and has reopened the case). If you lost your driving licence, you may be able to apply for your licence back early under Section 42 RTOA 1988.

4. Will I have to go to court? 
   Not all motoring offences end up in court. As a rule of thumb, you will only end up in court if you're at risk of a driving disqualification (either by 'totting-up' or because the offence carries a driving ban). If you have received a court date it is important that you contact us immediately. We may be able to avoid the court hearing or rearrange the date. Many of our cases are discontinued prior to court. 

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series. 

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

How much does it cost to instruct a drink driving solicitor?

...and do I need one!? 

Challenging a drink driving case can be expensive, but may be worth your while if your driving licence is important. We regularly win drink driving cases on technical points of law and procedure. Just because you were over the legal alcohol limit, does not mean that you are guilty of a DUI offence. 

The first point to consider is whether you actually need a specialist solicitor to represent you in court. After all, what's wrong with a bog-standard one? Unfortunately, like with most things in life, you get what you pay for. A general crime solicitor will certainly cost less, but it's of no benefit to you if you're banned for longer. Only you can appreciate the true cost of your driving licence, and what you will lose if you're convicted. 

Ask yourself the following question: If you were diagnosed with a serious illness, would you take advice from your GP or would you speak to a specialist consultant? The advice given to you by your GP might be correct, but what if the consultant knows something your GP doesn't? 

Our clients prefer to be represented by specialist driving defence solicitors because we can identify defences which might be overlooked elsewhere. Take the example below;

This is one example of why you should always seek a second opinion. A solicitor who does not specialise may overlook small procedural deficiencies which could help us win your case. We have spent years fine-tuning defence strategies to give our clients a service unlike any other. We pride ourselves on our ability to identify loopholes with police procedure and process. Take a look at our drink driving testimonials below. 

Drink Driving Solicitor Fees

Now that we've established the importance of a specialist drink driving solicitor, you may want to know more about the costs. Instructing a specialist solicitor may not be as expensive as you might think, especially when compared to what you stand to lose. Listed below are just some of the costs associated with a driving ban;

• Loss of income (one study found a 40% reduction in household income) 
• Increase in insurance premiums (on average 400% higher)
• Cost of taxis or public transport (over £50 per week)
• A court fine (up to £5000 in the Magistrates' Court)

I often explain to people charged with drink driving that 'costs' are the single most important factor when deciding whether to instruct a solicitor. This is because very little else will change in a drink driving case. Let me explain what I mean.

I have handled many drink and drug driving cases over several years and my personal view is that there is no real benefit in pleading guilty at the first hearing. Consider for yourself what you have to gain or lose. If you plead guilty at the first hearing you will receive a long disqualification. This will remain the same even if you are convicted at a later date. Please remember that 'credit' for an early guilty plea does not apply to the driving ban (meaning it is not reduced at a first hearing). 

In my view, anyone facing a long ban (or worse) should never plead guilty before attending court for a trial. By attending court for a trial you force the CPS to prepare its case for court and arrange for witnesses to attend court (including police officers). If the officers fail to attend court, or the CPS does not have the correct documents at court, then you would usually win the case. Even if you went to court for a trial and, after checking to see if the CPS witnesses had attended court, you then pleaded guilty, the ban would remain the same as it was at the first hearing. In effect, you are no worse off. The only difference is the solicitors' costs. 

The Magistrates' Court Sentencing Council confirms the above. You can read more about this below.

Credit for an early guilty plea - The Magistrates' Court Sentencing Council

Top Tip - Avoid hourly rates

A drink driving case could take anywhere from 6 - 12 months to resolve. Imagine paying your solicitor for every hour he spent working on your case during this time. Costs can very quickly start to spiral out of control. At the beginning of your case, no one will know how long it will take to resolve. Even a simple case can take many months. It is important that you have some cost-certainty at the outset. 

I remember representing a client who was charged with a serious motoring offence. He instructed us part way through his case after getting tired of the escalating costs. He was paying his solicitor by hour and was already £10,000 in to it!! He wasn't exactly sure what he had paid for. He told me the final straw was when he received a phone call from his solicitor one Friday evening asking for another payment on account so that the solicitor could send a letter! We were able to agree a fixed fee to cover the remainder of the case. 

I have listed below some of the reasons to avoid an hourly rate; 

• Unknown costs. No one will know how long your case will take to resolve. Even an 'open shut' case can be delayed. 
• Work will often 'stall' because your money on account runs out 
• No real certainty from the outset regarding costs

Drink Driving Costs - Video 

Can I get legal aid for drink driving?

If you earn over £13,000 per year you will not qualify for legal aid (subject to a few exceptions). If you do qualify, don't expect your solicitor to challenge the case on technical points of law and procedure. It is likely you will simply be advised to plead guilty. 

You can use the Government's financial calculator to check if you are eligible for legal aid.

M.A.J Law do not have a contract with the Legal Aid Agency. This means that we cannot represent you on Legal Aid. We are a privately funded criminal defence firm. In my view, a drink driving case cannot be challenged in the correct way on legal aid rates of pay. 

Drink Driving Lawyer Costs - FAQ's 

Can I get my money back if I win my case? 

Yes. You are usually entitled to a Defence Costs Order if you win your case. A DCO is granted by the court and allows a defendant to claim back solicitors fees from the Central Funds office of the Government. Unfortunately, you are unlikely to receive the full amount back, but you should receive something. Anything you do get back you should consider a bonus. 

MAJ Law employs an in-house costs draftsman who will apply for costs on your behalf. The process usually takes 6 - 8 weeks. 

Are expensive lawyers better? 

Sometimes, but not always. The easiest way to decide who to instruct is to speak with the solicitor. Most law firms, including ours, offer free legal advice over the phone. Speaking with the solicitor is the best way to 'sound out' who you're dealing with. It will also give you an opportunity to ask any questions and enquire about legal fees. Make sure the person you speak to is qualified to give legal advice. Make sure they're enthusiastic about representing you and, finally, make sure they explain all your options (not just a guilty plea!).  

What does a fixed fee actually include?

This depends upon what was agreed. Our initial fixed fee would usually include the following work;

1. Our advice to you prior to court (telephone calls and advice letters)
2. Our contact with the police (to request important documentary evidence) 
3. Our contact with the CPS (which would usually involve an invitation to discontinue the proceedings)
4. Our time spent reviewing the evidence against you and, of course, looking for technicalities and legal loopholes 
5. Representation at your court hearing by an experienced solicitor or barrister 
6. Advice following your court hearing summarising the outcome and next steps 

We ensure that all our legal fees are clear from the outset. No one likes hidden costs. If you would like to know more about our legal fees, please get in touch. You can call our offices on 01514228020. 

Will my case insurance cover my legal fees? 

Some insurance providers will offer Legal Expenses Insurance. This may cover some or all of your legal fees. Providers who offer this type of cover will probably have a preference over the solicitors you instruct (they may already have an agreement in place with another firm). Check you car insurance policy for Legal Expenses Insurance. 

Don't Just Plead Guilty 

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Next Steps 

Second Drink Driving Offence Sentence

Caught a second time in 10 years?

If you face being convicted of a second drink driving offence, you need to act fast. M.A.J. Law can explain your options and support you through the process. The earlier we can intervene, the sooner we can make a difference. If you've been charged with drink driving you may have received a court date. The purpose of the first court hearing is to make a plea (i.e. guilty or not guilty). If you plead guilty, you will probably receive a minimum 3 year driving disqualification. If you enter a not guilty plea, you will not be banned at court. M.A.J Law have a proven track record of winning cases at first hearings. You can read more about that here. 

If you would like to read about drink driving defences, take a look at our most recent info-page.

As this is your second offence, you’ll no doubt be aware of the serious consequences if convicted. Unfortunately, it gets a lot more serious the second time around. The penalties you might face include;

• A prison sentence
• A mandatory three year diving ban
• A High Risk Offender

A Prison Sentence – What are the chances?

A prison sentence is always a last resort for the magistrates. You may narrowly escape a prison sentence by receiving a community order or a suspended prison sentence. If, however, you have previously been given a suspended sentence or carried out unpaid work, it is highly likely the magistrates will send you to prison. If this is your third drink driving offence, you will almost certainly receive a custodial sentence. You can read more about drink driving prison sentences in our sentencing guidelines booklet.

Factors increasing the likelihood of a prison sentence;

• A previous drink driving, drug driving or failing to provide conviction within the last 10 years
• Any obvious aggravating feature (e.g. a collision, a very high reading, passengers etc…)
• Being charged with two or more offences at the same time
• A dangerous driving charge

A Mandatory Three Year Driving Ban – Can I avoid it?

Schedule 2 of the Road Traffic Offenders Act 1988 requires the court to impose a minimum three year driving disqualification where you have a previous drink, drug or failing to provide conviction within the last 10 years (including ‘unfit’ offences). ‘In Charge’ offences will not trigger the minimum three year driving disqualification period (as this only applies to 'drive' or 'attempt to drive' offences). The three year ban will still apply even where the court has previously found special reasons not to disqualify. 

The only way you can avoid the minimum three year driving ban, is by;

• Successfully raising a special reason
• Avoiding a conviction (see drink driving defences)
• Entering a ‘basis of plea’ to an ‘in charge’ offence (read more here)

Please remember that 'mitigation' cannot help you to avoid the three year ban. This is mandatory (meaning the court has no discretion). Don't be fooled into thinking that an 'early guilty plea' will reduce the ban. The minimum is three years. If a three year ban is not an option for you, we must defend the allegation.

However, under Section 42 Road Traffic Offenders Act 1988, you have a right to apply for the early removal of the disqualification.

A High Risk Offender (HRO)

No one wants to be labelled a high risk offender. However, in certain circumstances the law will recognise you as one. You are automatically rendered a HRO if either of the following apply;

• if you have a previous drink, drug or failing to provide conviction within the last ten years
• you provide a breath reading above 87.5 microgrammes (equivalent to 200mg in blood)
• you are convicted of failing to provide a specimen

You can read more about the HRO scheme at our dedicated page.

Want to know more about drink driving penalties for a second offence?

Read our Sentencing Guidelines Booklet

Exceptional Hardship in Drink Driving Cases

You may wonder whether 'exceptional hardship' applies in drink driving cases. In other words, can you tell the court of all the reasons why your licence is important and hope they don't ban you? I'm afraid not. 

If you're convicted of drink driving the court must disqualify you. Please don't make the mistake of believing it is discretionary. The Magistrates' Court Sentencing Guidelines and Schedule 2 of the Road Traffic Offenders Act 1988 set a minimum 12 month driving ban for a DUI offence. Remember that the higher the alcohol level, the longer the driving disqualification. If you have a previous drink, drug or fail to provide conviction in the last 10 years, the minimum disqualification is 3 years. See the Sentencing Guidelines below. 

You can check your disqualification length using our drink driving penalty calculator. 

How will a drink driving conviction affect you? 

A drink driving ban can have a devastating impact on you. It's thought that over 63% of all people convicted of drink driving go on to suffer mental health issues as a direct result of the driving ban. A drink driving ban can affect the following;

1. Employment (particularly where you use your vehicle for work)
2. Criminal record. A drink driving conviction is a criminal offence. This means a criminal record for life. 
3. High risk offender. Depending upon the alcohol level, you might be considered a High Risk Offender. 
4. Insurance (insurance premiums can be up to 4 x higher following a ban)
5. Family life. Many people report significant stress having to rely on family members to transport them
6. Cost. Trains, buses and taxis aren't always cheap. 
7. Travel. Many other countries take drink driving convictions seriously. It is not unusual for certain countries to refuse travel and/or visas. 

M.A.J Law offer free initial advice to anyone suspected of drink driving. We can explain your options in detail from the outset.

Exceptional Hardship for Drink Driving

Where a motorist accrues 12 or more penalty points within a three year period they will face a 6 month driving disqualification under the 'totting-up' provisions (s.35 Road Traffic Offenders Act (RTOA) 1988.), unless the court finds exceptional hardship. You cannot receive penalty points for drink driving (the only exception is where a special reason is raised). In totting up cases, the court can consider;

(a) any circumstances that are alleged to make the offence (or any of the offences whose penalty points are to be taken into account) not serious,

(b)  hardship, other than exceptional hardship, or

(c)  any circumstances which, within the three years immediately preceding the conviction, have been taken into account to reduce or avoid a totting up disqualification.

Unfortunately, exceptional hardship arguments cannot be used in drink driving cases. The only way of avoiding a driving disqualification despite being convicted is by using a special reason. A 'special reason' has nothing to do with your personal circumstances or the reason you need your licence; it must relate to the facts of the case. The length of your driving ban depends upon your level of alcohol. So, in cases involving higher alcohol levels, the ban is longer. The minimum driving disqualification is 12 months (for breath readings around 40 micrograms). The court can also impose a fine, community service or custodial sentence. Take a look at the sentencing guidelines below.

Drink Driving Sentencing Guidelines

If you have a previous drink or drug driving or failing to provide conviction within the past 10 years the minimum disqualification is 3 years. The Drink Driving Rehabilitation Course will reduce the length of ban by 25%. 

How to get penalty points for drink driving 

We often hear stories of 'friends of friends' receiving penalty points for drink driving because they take their kids to school. No one can receive penalty points for drink driving. The only exception is where the court finds special reasons but, as we have already discussed, special reasons have nothing to do with your personal circumstances.

If you are convicted of being drunk in charge the court could impose a 6 - 12 month disqualification or penalty points. One option open to a drink driver facing a mandatory driving disqualification is a 'basis of plea'. A basis of plea (known in the States as a plea bargain) is the process whereby the offender (in this case the motorist) agrees to plead guilty to a lesser charge (in this case, drunk in charge). The benefit to the Crown Prosecution Service (and the reason they often accept the basis) is that it brings the case to a close much sooner, thereby saving on time and resources. It also secures a conviction for the CPS without the need for a trial. For the motorist, they hopefully receive 10 penalty points rather than an immediate driving ban. Everyone's happy. 

Another common basis that we rely on in drink driving cases is to plead guilty to a lower breath reading. Let's assume you're prosecuted on a breath reading of 95 micrograms. You're facing a two year driving ban and community service. Because your breath reading is over 87.5ug you're also going to be labelled a 'High Risk Offender'. One option is to offer a guilty plea to a lower breath reading (below 87.5). By law, the CPS should accept the basis providing there is no material difference in sentencing (Goldsmith v DPP [2009] EWHC 3010). This does begin to get a little confusing so we would recommend speaking to us directly. We will not charge you for our initial advice. 

Please remember that a basis of plea can always be explored after checking the evidence. This means that you can first plead not guilty and force the CPS to provide the evidence. If the evidence is weak or inconclusive, you would probably win the case. If all the evidence checks out, we can contact the CPS and offer a basis of plea. 

Can I pay a higher fine to avoid a ban?

No. The fine is means tested and depends upon your income. It is usually around 100-150% of your net-weekly income (take home pay). If you plead guilty at the first opportunity (i.e. the first hearing) you would receive maximum credit on the fine. Maximum credit is one-third. Credit does not apply to the length of the disqualification.

Because credit does not apply to the driving ban, you cannot receive a longer driving ban if you're convicted following a not-guilty plea. With this in mind, you might decide to plead not-guilty and test the evidence. You would also keep your driving licence during this time (usually three to six months) meaning you're not banned on the first court date. If all the evidence checks out, you can plead guilty. The ban remains the same. 

To read more above challenging a drink driving case, click here. 

I'm a carer for a family member. Will the court let me keep my licence?

No. There are no provisions allowing a convicted drink driver to keep hold of their licence as a carer - despite what you might have read online! Drink driving has far reaching consequences and will no doubt affect the people close to you. The court cannot take this into account when sentencing. 

By contrast, in speeding cases, the impact on others is a critical component to an effective exceptional hardship argument. 

If you own and drive a mobility vehicle it is likely this will be confiscated by the Local Authority. You can read about mobility vehicle requirements here: Motability Vehicle Scheme. 

Will I go to prison for drink driving?

Going to prison for drink driving is unlikely. Only in the most serious circumstances will a person receive a custodial sentence for drink driving. The odds are greater if a person has a relevant previous conviction or if there were serious aggravating factors. 

We are able to tell you within minutes whether you're facing a custodial sentence. If you are, one way to avoid this is a basis of plea (discussed above). 

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

Drink, drug driving & failing to provide offences are serious criminal offences that can result in a custodial sentence. For Doctors in the medical profession, a criminal conviction can result in the loss of employment, particularly if you work within the National Health Service. A recent study found that less than 1% of practising NHS Doctors have criminal convictions, suggesting that those who are convicted of criminal offences are likely to lose their job. Of course, the risk of a dismissal depends upon the type of medicine you practice. If your post involves a greater degree of contact with children or vulnerable adults, you will be subject to tighter controls; and therefore more likely to lose your doctor's licence. Cases involving aggravating factors (such as a high reading, a collision etc…) are considered more serious.

As a Doctor you are required to be part of the British Medial Association or the General Medical Council (GMC). All members have an ongoing duty to disclose any ‘criminal conviction’, even if you’ve not yet been convicted (this includes a criminal charge or if you've been 'released under investigation'). The GMC has released guidance on criminal convictions and regulatory proceedings. For the avoidance of doubt, drink and drug driving can result in immediate prison (but only in the most serious cases).

What are you required to report to the BMA/GMC?

• all matters currently under investigation (this includes cases where you’re awaiting blood or urine results)
• any conviction, caution or investigation in relation to a criminal offence
• investigations or determinations by any of the other UK health regulatory bodies, as well as by a primary care organisation

Note: Motoring offences which result in a charge or summons to appear before a criminal court require disclosure to the GMC. The GMC do not routinely investigate speeding offences unless there are specific aggravating features which raise a question about the doctor’s fitness to practice.

What you must do

Inform the GMC without delay if, anywhere in the world, you:

• formally admit to committing a criminal offence (for example by accepting a caution)
• are charged with a criminal offence
• are found guilty of a criminal offence
• receive a warning for the possession of cannabis
• are given an Anti-Social Behaviour Order whether as the result of civil or criminal proceedings
• have had your registration restricted, or have been found guilty of an offence by another medical or other professional regulatory body

For offences relating to alcohol or drugs (including failing to provide offences), the GMC would normally invite you to undergo an assessment of your health. Upon receipt of the health assessment reports and other requested investigation information, advice may be sought as to whether it would be appropriate in the circumstances to conclude the case by issuing the doctor with a formal warning, undertakings or other disposal (such as a dismissal).

Why you must disclose

• Fitness to practice - Police forces inform the GMC when a doctor is charged with an offence, cautioned or convicted of a criminal offence. Doctors are also required to inform the GMC directly about these matters.
• Fixed penalty notices - The commission of offences dealt with by Penalty Notices for Disorder at the upper tier penalty level may raise questions about a doctor’s fitness to practice and must be reported to the GMC.
• Using or possessing illegal drugs - The use or possession of illegal drugs (including cannabis) may raise a question about a doctor’s fitness to practice, so you must also tell the GMC if you receive a warning for such offences.
• Anti-social behaviour orders - Anti-social behaviour orders (ASBOs) are court orders which prohibit the perpetrator from specific anti-social behaviours and may raise questions about a doctor’s fitness to practice, whether they are issued as a result of criminal or civil proceedings.

Negotiating to secure a caution

If you have been charged or suspected of committing a criminal offence, please contact us immediately. You are far more likely to keep your job if you receive a caution (as opposed to a criminal conviction). We specialise in negotiating with the police to secure cautions before court hearings. We may even be able to persuade the prosecutor in court to refer the case back to the police for a caution to be issued.

Guidance from the General medical Council (GMC) advises that:

You must inform the GMC without delay if, anywhere in the world, you have accepted a caution, been charged with or found guilty of a criminal offence, or if another professional body has made a finding against your registration as a result of fitness to practice procedures.

Registration with the General Medical Council or General Dental Council imposes on doctors and dentists a duty to provide a high standard of medical care for, and behave appropriately towards patients. Employers within Health and Social Care also have a duty to ensure that patients receive a high standard of medical care and ensure as far as possible the safety of patients. Employers therefore need to establish if you have been found guilty of a criminal offence, been bound over or cautioned or are currently the subject of proceedings which might lead to a conviction, an order binding you over or a caution, in the UK or any other country.

More information about your responsibilities as a doctor can be found at the British Medical Association Website and the General Medical Council Website.

FAQ’s

If I have a criminal conviction, can I still be employed?

This will depend on whether your offence is considered to make you unsuitable to have access to patients. We conduct a greater level of checks on staff who work with certain patient groups, such as children and vulnerable adults. We will however consider a range of factors before making our decision to appoint -the nature of the offence -the age at which it was committed -its relevance to the post in question -whether the applicant has a pattern of offending behaviour -whether the applicants circumstances have changed since the offending behaviour -the circumstances surrounding the offence and the explanation(s) offered by the convicted individual.

Why does the NHS ask for disclosure of criminal convictions?

We do this to protect our patients. In doing this, we balance the need to prevent unsuitable people from working in sensitive posts, against the threat of discrimination against rehabilitated ex-offenders.

What positions can the NHS obtain disclosures for?

The Police Act 1997 enables Disclosure Barring Service (DBS) record checks to be requested by employers on any individual who is working in a role listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, which includes any employment which is concerned with the provision of health services and which is of such a kind as to enable the holder of that employment or the person engaged in that work to have access to persons in receipt of such services in the course of their normal duties.. Not all NHS staff are eligible for a DBS check if will depend if their role falls within the Exceptions Order. (NHS Employers definition)

What is a criminal record?

A record of convictions held on the Police National Computer for individuals convicted of crimes. The Police National Computer contains information about criminal records, i.e. convictions, cautions, reprimands and warnings.

What is a Disclosure Barring Check?

Our organisation undertakes criminal records checks for some posts. A Standard DBS check is used primarily for posts that involve working with children or vulnerable adults. They may also be used to check staff working in other roles, e.g. accountancy related jobs. For those posts that involve a greater degree of contact with children or vulnerable adults, i.e. the type of work that involves regularly caring for, supervising, training or being in sole charge of such people, candidates will require an Enhanced DBS check. For both, we are checking candidates to see if they have any convictions, current and spent, as well as cautions, reprimands and final warnings. The enhanced check also provides a check on local Police records. We also make checks on staff working with children against the POCA (Protection of Children’s’ Act) List. This contains names of people who are banned from working with children.

What is the Rehabilitation of Offenders Act (ROA) 1974?

The ROA 1974 enables some criminal’s convictions to become ‘spent’ or ignored after a rehabilitation period. A rehabilitation period is a set length of time from the date of conviction. After this period, with certain exceptions, an ex-offender is not normally obliged to mention the conviction, when applying for a job. In the NHS, there are certain circumstances / jobs that a conviction must be declared, e.g. a nurse working on a children’s ward.

What is a spent conviction?

The Rehabilitation of Offenders Act 1974 sets out to make life easier for many people who have been convicted of a criminal offence, but then have had a period in which they have not committed any further offences. In general, the more severe a penalty is the longer the rehabilitation period. Once a rehabilitation period has expired and no further offending has taken place, a conviction is considered to be ‘spent’. When assessing the suitability of a person for a position of trust, a potential employer is entitled to ask a job candidate to reveal all convictions, whether spent or not. This is to ensure that children and other vulnerable groups are adequately protected from those in positions of authority over them, e.g. a nurse who looks after children.

What is an ‘unspent’ conviction?

A conviction is described as ‘unspent’, if the rehabilitation period associated with it has not yet lapsed. A rehabilitation period is a set length of time from the date of conviction, according to the sentence imposed.

How do I know if the job I am applying for is required to provide details of all convictions, spent or unspent?

There are some jobs which are not covered by the Rehabilitation of Offenders Act 1974. These are jobs which are positions of trust and are ones which involve a far greater degree of contact with children or vulnerable adults, e.g. a nurse working on an adults’’ ward or a cleaner on the Emergency Department. For these types of jobs, the employer is entitled to see a person’s full criminal history in order to assess their suitability for a position.

What is a caution?

A caution is a formal warning about future conduct given by a senior police officer, usually in the police station, after a person has committed an offence. It is used as an alternative to a charge and possible prosecution.

If I am recruited from abroad, will I still be checked for criminal records?

Yes – we will carry out necessary police checks in line with that country’s justice system and UK requirements.

Is an overseas police check an acceptable alternative to a DBS check?

This is dependent on the length of your residency in the UK and the post you are required to cover. Overseas authorities do not have access to UK Police records, or relevant information held on the Governments PoCA & PoVA lists. Your organisation might normally accept a recent overseas police check providing the above criteria is met.

Can I refuse to apply for a DBS check?

Yes. However, there are some posts for which a CRB check is required by law. If you refuse to apply for a DBS check in this instance, the organisation may not be able to take your job or licence application any further.

How long does the application process take?

You should normally receive a copy of your CRB check within 4 weeks however at certain times of the year, the DBS has a backlog of applications to process which may cause a delay in their response. Enhanced checks normally take longer than standard checks.

Who has access to my personal information and DBS disclosure?

Your personal information will only be seen by those whose jobs require them to do so in the course of their duties.

Why do I have to re-apply for a new DBS check each time I move jobs?

It is good practice for individuals who work with children to be re-checked every 3 years

My personal details have changed since I received my Disclosure. Do I need to inform the DBS?

No. The DBS issues Disclosures based on the personal information that is provided to them at the time of application.

Pleading not guilty to drink driving

Last month we processed 33 Defence Cost Orders (DCO). A DCO is granted by the court when we win a drink driving case, whether or not is goes to trial. A DCO allows us to recover some of the legal fees paid by our clients - meaning we can give you some money back.

July was a record breaking month for MAJ Law as we continue to develop unique defence strategies to challenge motoring offences. We also welcomed three new employees to the team. Last year, Plimsol Analytics ranked MAJ Law as the fastest growing motoring defence firm in the UK. 

As a specialist driving solicitor, I spend a lot of time representing clients charged with drink driving offences. My goal, whatever the situation, is to give every client the best representation possible - and the best chance of winning the case. I believe that every motorist has the right to see the evidence against them and to receive a fair trial. In my experience, the police and CPS are lazy; they rely on motorists pleading guilty at court. Why is it that when a motorist pleads not guilty to drink driving, the prosecution start to complain? Probably because of the time, money and resources involved in prosecuting a case. We're here to help you navigate your way through a strange and confusing judicial system. 

Always consider your options before stepping into court. Remember that a criminal record can have far reaching consequences. A driving ban could be avoided.

5 Reasons the CPS Drop DUI Cases

1. The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions, that sets out the general principles Crown Prosecutors should follow when they make decisions on cases [CPS.gov.uk].

Is there enough evidence against the defendant?

When deciding whether there is enough evidence to charge, Crown Prosecutors must consider whether evidence can be used in court and is reliable and credible, and there is no other material that might affect the sufficiency of evidence. Crown Prosecutors must be satisfied there is enough evidence to provide a "realistic prospect of conviction" against each defendant.

Is it in the public interest for the CPS to bring the case to court?

A prosecution will usually take place unless the prosecutor is sure that the public interest factors working against prosecution outweigh those working in favour.

We can use these principles to better understand how the CPS make charging decisions in drink driving cases. Take the example below;

I represented James at his court hearing and advised him to plead not guilty. The reason I advised him to plead not guilty is because there appeared to be no 'direct' evidence that James drove the vehicle - only circumstantial evidence. I asked the CPS to prove that my client was driving the vehicle. Turning to the Code for Crown Prosecutors and the full code test, the CPS had to consider whether there was enough evidence to provide a 'realistic prospect of conviction'. Long story short, they couldn't. It was probably in the public interest to prosecute James, but if the evidence is insufficient the CPS cannot proceed with the prosecution. I often find myself referring to the Code for Crown Prosecutors in court to remind the CPS of its obligations and responsibilities. It's a useful took to put pressure on the CPS to drop cases. 

Many prosecutors fail to realise what evidence is required to prove a drink driving case. They may be able to prove that you were over the drink driving limit, but what about the procedure and the paperwork? Have you seen all of the evidence in your case?

2. Police Mistakes 

The police are known for making mistakes. I regularly speak to prosecutors in court who are fed up of police officers passing them flimsy cases littered with procedural errors and evidential oversights. Remember - the prosecution's case is only as strong as the evidence available. Is the evidence is weak or incomplete, there is no case to answer.

If you speak to any member of my team they will tell you about the MGDD procedure. This is the bible. The MGDD document contains a written record of the breath, blood or urine procedure carried out in police custody. It is a 25 page instruction manual containing carefully worded statements that must be read to you before you take the test. The whole process can take anywhere from 15 minutes to one hour. Can you remember how long you spent in the breath test room and do you recall this document? 

One the most common reasons we find mistakes with this process is because drink driving, by its very nature, is 'time sensitive'. What I mean by this is that alcohol levels reduce overtime. A huge concern for any officer trying to impress his colleagues is the risk that you might drop below the legal limit by the time you're tested. Let's assume it takes an officer 45 minutes to fill out the MGDD document. During this time, the level of alcohol in your system will drop substantially, thereby resulting in a lower breath reading (and one that might put you under the legal limit). If the officer skips the document and breath tests you straight away, the level of alcohol in your system is going to be higher - meaning you're more likely to be charged. Remember that within the police force it's a 'target driven culture'. All police forces have quotas on arrests & convictions. Many cases are pushed to court because the police expect a guilty plea. How do you know the police have the correct evidence if you don't ask to see it? 

Take a look at our recent case study examining this issue in more detail. 

3. Lost or missing evidence

At any one time the Police and CPS have hundreds of thousands of prosecutions to deal with. Many of which are far more serious than drink driving offences. In order for the CPS to successfully prosecute someone, they have to be equipped with all the necessary evidence to persuade the court, beyond doubt, that the defendant is guilty. So where does the evidence actually come from?

The relationship between the CPS and the police is an important one. The police have a key role in the prosecution process; they are responsible for the detection and investigation of criminal offences, including all motoring offences. The police also perform many of the tasks integral to the conduct of a case. This includes warning witnesses to attend court, obtaining further witness statements, and keeping victims informed as to the progress of the case. [Police and CPS Relations Updated: December 2018. Legal Guidance]

The problem for the CPS is that often these communication channels break down part way though a case, leading to miscommunication and mismanagement of drink driving cases. This usually results in the CPS missing court directions and deadlines. If the CPS cannot provide disclosure in time, it should not be admissible in evidence against you. No evidence. No case to answer. 

4. Witness availability 

As above, one role of the Police is to arrange witness attendance at court. So long as your drink driving case has been prepared in the correct way, the CPS will be required to bring witnesses to court (usually police officers) in order to prove the case against you. Even if you don't have a 'defence' in law, or the evidence is stacked against you, you can still win the case if the witnesses fail to attend. Regularly, due to miscommunication between the police and CPS, witnesses don't turn up at trial! Even if a witness (such as a police officer) is told to attend court, they still have to manage their commitments alongside training courses, annual leave, other court cases etc...

You may think that the chance of a witness failing to attend court is slim, but it still amazes me how often this happens. It's a sure-fire way of winning a drink driving case. 

5. A defence 

Remember that even if you're over the drink drive limit you could still have a defence. I have listed below some of the most effective drink driving 'defences';

• The MGDDA Procedure 
• Post driving consumption (AKA The Hip Flask Defence)
• Identification 
• Capacity 
• Disclosure 

Drink Driving NOT GUILTY FAQ's

If I'm later found guilty will I receive a longer driving ban?

No. One of the big reasons why most motorists plead guilty at court is because they're worried about making the situation worse. This is not something you need to worry about. The court cannot impose a longer driving ban after pleading not guilty. The length of ban is based on the circumstances surrounding the offence (not your decision to plead guilty/not guilty).

'Credit' for an early guilty plea applies only to the fine, community order or custody sentence. 

Does it mean I have to go to trial?

No. You are always in control of your case. The beauty of a not guilty plea is that you can change your mind at any point (e.g. once you have seen the evidence). You could even push the case to trial and, if the witnesses turn up, change your plea at court. Even in these circumstances the length of ban cannot increase. 

Do I have to speak in court if I plead not guilty? 

No. You only have to confirm your name and plea. Your solicitor should do all the talking (assuming you're represented). If you're not represented then you will be asked to speak. 

Even if the case goes to trial, you do not need to give evidence in court. Many cases that we win don't involve a trial or a client giving evidence. 

Useful Drink Driving Links

Calculate the length of your ban with our penalty calculator 

Mental health support - Alcohol Change UK

Getting Free Legal Advice - The Law Society

Find a Magistrates' Court - GOV.UK 

VIDEO - Choosing the Right Solicitor for your case 

What you need to know about breath test machines.

Can breath test machines accurately measure alcohol levels?

M.A.J Law is quickly learning of a testing issues with SYNLAB - a key player in the forensic testing of drug driving blood samples. This follows the Random Testing Scandal which resulted in over 10,000 drug driving cases being dropped. Can we expect a similar scale disaster and why haven't lessons been learnt? 

What do we know so far?

The problem seems to go back as far as 2019 and in many cases will effect people who have already been convicted of drug driving. In May 2021, we received two letters from the Crown Prosecution Service notifying us of issues with the reliability of results produced by SYNLAB. I have copied the letter below;

Dear Sir / Madam,
DEFENDANT(S): John Riley
URN: XXXXXXXXX20

I write to advise you that a recent investigation has concluded that the results of the toxicology test conducted by Synlab in this case are not reliable as to the quantity of the drugs identified in the test. A short note of explanation is attached. I bring this to your attention as material which might reasonably be considered capable of casting doubt upon the safety of the conviction, so you may take such steps as you consider appropriate on behalf of your client.

Who are Synlab?

On its website, Synlab describe themselves as At SYNLAB, we provide laboratory, diagnostic and advisory services to a diverse range of sectors, from healthcare, wellness and veterinary, to food, family law and transport. We carry out over 25 million tests every year and employ more than 1,300 people across the UK and Ireland.

We pride ourselves on the positive difference we make to people, animals, the environment, workplaces and other consumers by providing reliable, effective and timely diagnostic information.

The letter continues...

In late November 2020, following an independent defence review of analytical data from a Section 5A Road Traffic Act 1988 case involving Δ9-Tetrahydrocannabinol (THC), a number of issues were raised in relation to quality control and evaluation of data at the Synlab forensic science laboratory. Following these issues being raised Synlab informed my office and the assessment body (UKAS) and voluntarily suspended its accreditation, for this work, to the quality standard ISO 17025. Synlab was then audited by both UKAS and an independent consultant forensic toxicologist in early January 2021. These audits confirmed that the analytical methodology employed by Synlab was not fundamentally flawed and that there was no evidence of any improper activity. However, it was highlighted that the method was, in the area of the legal limit for THC, working close to its limit of sensitivity and the forensic unit’s quality assurance criteria needed to be more clearly defined to withstand the rigors of the CJS.

A full review is underway, beginning with the most recent cases, to identify any cases where a result above the legal limit has been erroneously reported. It is extremely important that this review is accurate and it will take some weeks to complete. A full list of all cases submitted to Synlab will be provided to police forces on 5 February. Police forces have been asked to review the detailed lists immediately upon receiving them, with a focus on identifying cases that are currently in court or soon due in court, and to inform local CPS. Many of these cases will be unaffected by the issues, but an adjournment may be required in order that the review can be undertaken. This issue only affects s5A Road Traffic Act 1988 cases analysed by Synlab. The issues do not affect the detection of THC, only the robustness of the determination of whether THC at a low level can be safely concluded to be over the legal limit.

The vast majority of affected cases are therefore where THC was detected at a low level. Most samples contracted to this forensic unit were only for analysis of THC. However, in a small number of cases, the unit analysed the full panel of s5A drugs and these cases will also be reviewed.

What to do next...

If you think your case involved SYNLAB, please get in touch immediately. We may be able to appeal against an unsafe conviction. You may even be entitled to claim compensation.

More information?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

Next Steps: Please get in touch to discuss your case with a member of our team. You can use the contact form below or call 01514228020 for free initial advice. You can also use our drink driving ban calculator or check out our video series. 

0151 422 8020

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

Please note: As a criminal defence firm we are unable to deal with compensation claims or advise on any aspect of civil litigation. We recommend you contact a civil litigation firm. 

What Happens If You Get 12 Points on Your Licence?

• speeding (3 - 6 penalty points)
• using a mobile phone while driving (6 penalty points)
• drunk in charge (10 points)
• driving without due care and attention (3 - 9 points)
• driving without insurance (6 points)

What is a “totting up” ban?

12 points added to your licence but without a ban

What qualifies as ‘exceptional hardship’?

1. If you suffer from health issues and will have your mobility restricted if you can’t drive
2. If you are the carer for somebody with severe health issues and they are heavily dependent on you
3. The loss of a career for you or anyone who relies on your business
4. Potential homelessness which results in you not being able to pay for your mortgage if you’re forced to leave your job

Important documents 

The outcomes of your ‘exceptional hardship’ case

Appealing a “totting up” ban

Can a solicitor help me?

Do You Have to Declare a Driving Ban to Insurance?

Everything you need to know about drink driving and car insurance.

The law requires all vehicles on a public road in the UK to hold a valid policy of insurance. If you plan on driving a vehicle, you must hold at least third party car insurance. Car insurance is a contract, in the form of a policy, which offers financial protection to a motorist in the event they are involved in an accident with another vehicle, a person, an animal or property. 

If you drive without car insurance, you run the risk of being charged with a criminal offence (punishable with 6 penalty points). You could also be sued by another party if you cause damage or injury.

If you have been charged with a drink driving offence or are under investigation, you may be wondering if you have to notify your car insurance provider. The requirement to notify your insurance provider depends upon the wording of your insurance policy. Some insurance policies are worded deliberately vague when it comes to drink driving offences (as a 'capture all' clause). All insurers will want to know immediately if you've been arrested for drink or drug driving - but you may not be required to tell them. Remember that you're innocent until proven guilty. 

What happens if I tell my insurance about a drink driving offence?

It all depends upon whether you've been involved in a collision. If you have, the other party's insurance are going to try to shift some or all of the blame on to you. You were, after all, over the legal limit. Whether the collision was your fault or not, it's easy to blame a 'drink driver'. 

If you tell your insurance that you were arrested for drink driving, it is likely they will invalidate your policy. This means that you are then liable for the damage or injury caused. This could reach tens of thousands. 

In a recent case I handled, a client's insurance provider was attempting to sue him for £86,000 due to injuries caused to another driver. We managed to win his case meaning his insurance paid out.

I regularly speak with clients who have been told by their insurers that their policy is invalid. However, once you carefully review the wording of the policy, you may find that this is not the case. Check the wording if your policy. Does the policy require a conviction before it becomes invalid? If you have only been charged with the offence, then you have not been convicted. In which case, your policy should not be invalidated. Of course, if you're later convicted, the insurance company may be entitled to recover costs back from you. Many insurers, however, don't bother trying the recover the money. 

Will the Police contact my insurance?

It is always possible (but highly unlikely) that the police will contact your insurance provider. There are two reasons why they might contact your insurance;

1. To try to determine whether you were driving the vehicle 
2. To notify them that you've been involved in an accident 

Free advice about no insurance? 

0151 422 8020

MAJ Law is a specialist driving defence firm. We represent clients across England and Wales charged with serious driving offences, such as drink driving, drug driving, failing to provide and no insurance. We believe that everyone has the right to free initial advice and affordable legal representation. Our reputation is built on our results.

What happens if I don't tell my insurance about a drink driving offence?

Your insurance provider will require you to notify them of anything that may alter your premium, such as a drink or drug driving conviction. If you do not, your insurance provider are unlikely to pay out in the event of an accident. You can read more about drink driving and insurance premiums here;

Drink Driving Car Insurance - DrinkDrive.org

Helpful Links

• Spent drink driving convictions
• Drink driving car insurance quotes
• Driver identification defences to drink driving
• What are impacts of drink driving?

How Long Will I Lose My Licence for Drink Driving? 

• Six months if you have built up 12 or more points over three years on your record
• 12 months if you receive a second disqualification within three years of your last offence
• Two years if you receive a third disqualification within three years of your last offence

Can I Reduce My Disqualification Period? 

• You were disqualified for 3 years and have served at least 2 years 
• You were disqualified for between 4 - 10 years and have served at least half 
• You were disqualified for 10 or more years and have served at least 5

How Do I Re-apply For A Drivers Licence? 

Reducing your ban with the drink drive rehabilitation course 

It’s day one of a drink-drive rehabilitation course and everyone attending has a different experience to share with the group.

The police breathalysed Ken after he crashed his car when driving home from a drinking session at his local. He took the risk because there were no taxis available – and his reading was more than three times the legal drink-drive limit.

Katy, sitting next to him, had planned to leave her car parked in town overnight when one drink led to another. She didn’t realise that getting into the vehicle to collect her coat for the walk home meant she was actually breaking the law.

One-by-one, each person reveals their story. Many simply underestimated the strength of the alcohol in their drinks. Others were breathalysed the morning after impromptu nights out and were still over the limit.

While each individual has their own story to share, all the participants are there because of their drink-drive convictions. Magistrates offered them the opportunity to complete the course as part of their sentencing for breaking the law.

But what topics are covered, and how are drivers likely to benefit from attending?

It helps to meet others in a similar situation

For many, entering a room packed with strangers is daunting. Adding to that underlying tension is the fact that everyone is there because they’ve been in trouble with the law.

But Andrew Buckley, who runs the Reform drink-drive rehabilitation course, says that getting to know others who have also lost their driving licence in similar circumstances can help break the ice.

“I think the majority of our participants are relieved to meet others who are going through a similar experience,” he says. “They all have their drink-drive conviction in common, and are often still coming to terms with what’s happened. Nobody in the room needs to feel isolated any more because they can relate to one another’s difficulties.”

Participants are 2.6 times less likely to reoffend

Prior to the course starting, those attending have been through a lot: from the shame of being arrested to coping with life without a driving licence. And even after receiving their course completion certificate, they will still have a long journey ahead.

Rather than another slap on the wrist or watching back-to-back video clips of crashes involving drunk drivers, the course instead focuses on education and raising awareness of alcohol consumption and driving.

Participants also keep track of their own drinking, find out about its impact on their own health and use past experiences to identify moments when they have been tempted to get behind the wheel of a car. They then explore ways of changing that behaviour for themselves.

“Research over the years has shown this is the most effective approach,” Andrew says, “mainly because the background of alcohol consumption and driving is properly explained to everyone.

The Department for Transport states that those who make the effort to attend a drink-drive rehabilitation course in the UK are 2.6 times less likely to reoffend. Some feel it should actually be part of the driving test. In Australia, drivers complete a similar course before getting behind the wheel of a car. 

The strength of alcohol in a single drink can vary…a lot

During the course, everyone learns about the amount of alcohol in a single drink – and that it is possible for drivers to unintentionally be over the legal drink-drive limit.

The legal limit is 35 micrograms per 100ml of breath for drivers in England, Wales and Northern Ireland. Meanwhile, in Scotland, it is much lower at 22 micrograms per 100ml of breath.

One unit of alcohol takes about an hour to absorb into the body, and another hour for the average adult to process. The number of units in a glass really depends on the size of the drink and its strength. A pint of strong lager can contain three units of alcohol, whereas the same volume of regular lager has just over two units.

M.A.J Law recently published a guide on alcohol elimination rates. The results might surprise you... We discovered that alcohol is eliminated from your blood stream much quicker than you might realise. Take a look at the table below. 

The average UK male is 5ft 9in tall (175cm) and weighs 13 stone (83kg). A pint of beer (3.6%) contains 19.8ml of alcohol.

Andrew explains:

“These drivers simply hadn’t allowed enough time for their body to process the alcohol.”“Imagine he or she has been in the pub the night before and drank five pints of strong lager. The drinking stopped at 11.30pm. Five pints takes 15 hours to process, then add that extra hour for the alcohol to be absorbed… This means the driver shouldn’t have been behind the wheel until later in the afternoon.”

Brushing up on the UK drink-drive laws

There’s also a common misconception that drivers can only be arrested for drink driving if they’re pulled over by a police officer. This, in fact, isn’t always the case and the drink-drive rehabilitation course goes through the relevant sections of the law.

“Drink driving legislation is much broader than many people think,” Andrew says, “participants are often surprised when it’s explained to them in full.”

He then uses a well-known scenario that sounds familiar: when nipping to the pub for a pint after work suddenly turns into a heavy drinking session. Even if a driver had no intention of driving the car, using the keys to enter the vehicle to collect a bag or coat for the walk home is actually breaking the law. That simple action can land someone into trouble because he or she is holding the keys and physically opening the vehicle’s door while over the drink-drive limit. A police officer could arrest him or her with intent to drive under the influence.

You can read more about Drunk In Charge offences here.

The drink-drive rehabilitation course also covers the longer term implications of having a criminal conviction, such as having to declare it on future job applications and on visas for overseas travel. A conviction for drink driving can massively disrupt someone’s day-to-day life. It will be hanging over them for at least a decade. After some time the conviction will become spent - meaning it no longer needs to be declared to employers, insurers etc... You can read more about spent convictions on our dedicated page. 

Completing the course does have its benefits

One of the key incentives for completing the course is the driving ban reduction – by as much as a quarter in some cases. So when a two year ban can be reduced by six months, that’s a significant amount of time and a helpful step towards getting back behind the wheel. And while a drink driving conviction makes it trickier for drivers to get car insurance again, completing the course may help him or her secure a more affordable policy.

Specialist insurance broker Adrian Flux, which has produced a helpful guide to those convicted of drink driving, offers discounts for those who have completed a rehabilitation course and are preparing to get back on the road.

For example, a 29-year-old driver of 11 years with a drink-drive conviction can get a quote that’s up to £900 cheaper for the year if he or she has the rehabilitation course certificate.

And while this may lessen the blow, Andrew’s take home message from the course at Reform is very simple…

“Stay away from alcohol completely when you’re planning to drive,” he advises. “It’s the only way to be sure you’re completely safe.”

Click here to download a booklet containing a guide on insurance for drink driving

Getting you back on the road

Conor Johnstone, a specialist motoring defence solicitor at M.A.J. Law Ltd, explains that you may be entitled to apply for the early removal of your disqualification.

Section 42 of the Road Traffic Offenders Act 1988 sets out the criteria in order to be eligible for the early removal of your disqualification. You must: have been given a three year disqualification, and served at least two years; have been given a disqualification of between four and 10 years and served at least half; and have served five years in any other case. If successful, your licence would be returned to you before the full period of disqualification has expired. Meaning you could be back on the road much sooner than you anticipated.”

Smart Motorways 

MP’s are launching a fresh inquiry into the benefits and dangers of smart motorways after a coroner said they created an “ongoing risk” of death. This comes just weeks after Highways England were referred by a coroner to prosecutors for possible corporate manslaughter after the death of a motorist on the M1.

The Commons transport select committee is to investigate the roads following a further rise in annual deaths and MP’s claim public confidence in the roads is faltering. They will look at whether smart motorway should be scrapped completely or to introduce better safety measures. The Government has promised to assist with this matter calling it an “important inquiry”.

The use of radars 

Earlier this year, the Transport Secretary Grant Shapps said he had ordered Highways England to speed up the instillation of radar to detect stopped or broken down vehicles. A decision he made following criticisms over the safety of smart motorways following a double-fatal crash in South Yorkshire. Stopped Vehicle Detection, which uses radar to detect drivers who have broken down in live lanes, is to be rolled out across the network by the end of 2022, bringing it forward by 6 months.
Mr Shapps added that a £5m information campaign is being rolled out to educate drivers on how to drive on smart motorways and what to do if you break down, however, he stated that the Government were not planning on scrapping the smart motorway scheme. It will be interesting to see if the Government’s position changes if the transport select committee advise that smart motorways should be scrapped.

Caught speeding on a smart motorway 

A smart motorway is a section of a motorway that uses traffic management methods such as giving information on overhead displays to increase capacity and reduce congestion in particularly busy areas, they have existed in England since 2002. The all-lane-running version which involves opening the hard shoulder permanently to drivers began in 2014. Another version uses a “dynamic hard shoulder”, which opens and closes to traffic, dependent on congestion.
The possible scrapping of smart motorways will be welcome news to many motorists. Variable speed limits often lead to motorists being caught speeding, mostly because they're unaware the speed limit has changed. An increase in speeding prosecutions coupled with the increase in injuries such as lower back pain and avoidable deaths on smart motorways means that the findings of the select committee will be of great interests to many people.

Driving under the influence of alcohol can have extremely serious consequences, both for you and others. Many of the cases we represent have been involved in serious collisions. But what about the legal consequences of breaking the UK drink driving laws? Will a conviction result in a ban? Will your license be immediately withdrawn? We’ve put together a quick overview of the drink driving system, to help you better understand what could happen should you be convicted of drink driving. 

Will I get penalty points for drink driving? 

The short answer is no. Drink driving carries a mandatory minimum 12 month driving disqualification. If you plead guilty to drink driving, or if you're convicted by the court, you will be banned. There are only two circumstances where a driving ban can be avoided following a conviction.

1. You run a special reason
2. You're convicted of being 'in charge' of a vehicle 

1. You run a special reason

We talk more about special reasons on our Special Reasons page. Special reasons apply in circumstances where your culpability (i.e. your blameworthiness) is so low that the court decides not to disqualify you (or reduces the length of disqualification). The general rule is that special reasons must apply to the offence and not the offender. So, in other words, your personal mitigation cannot constitute a special reason. The most common special reasons are;

• Short distance driven 
• Driving in an emergency
• Spiked drinks
• Reflux

All of these arguments relate to the offence of drink driving rather than the personal circumstances of the offender.

If you'd like to talk more about special reasons, please get in touch with our team. All our initial advice is completely free of charge. 

2. You're convicted of being 'in charge' of a vehicle 

There are two different 'versions' of a drink driving offence. The most serious type of drink driving offence is where you're caught driving. There are three ways the police can prove that you drove the vehicle; 

• The police witness you driving (for example, you were pulled over)
• You admit to driving in interview (don't worry about admissions made 'outside' of an interview)
• Another person (other than a police officer) witnessed you driving.

If the police cannot prove that you drove the vehicle, you should not be charged with drink driving. Remember that if the police can't prove that you drove (even if you did), you should not be convicted. 

Even in circumstances where the police can prove that you drove the vehicle, you may still be able to negotiate a lower charge. Negotiations take place with the CPS everyday, in and out of court. In our experience, the CPS are more concerned about you being convicted rather than the sentence you receive. If you have been charged with drink driving, we may be able to persuade the CPS to accept a guilty plea to the lesser offence of being drunk 'in charge'. Accepting a plea deal like this reduces the risk of a disqualification substantially. The court can then offer penalty points. The 'going rate' for a drunk in charge offence is 10 penalty points. This offence is intended to cover scenarios where a person is 'sleeping it off' in their vehicle. If you accrue 12 or more penalty points on your licence within a 3 year period, you could receive a 6 month driving ban - unless the court finds exceptional hardship. Take a look at our video on exceptional hardship. 

You might think that it is highly unlikely the CPS would reduce the charge, but what have you got to lose? If you plead guilty to drink driving you will receive a driving disqualification. If you ask the CPS to reduce the charge and they refuse, you're no worse off. It continues to surprise me how often the CPS reduce charges in order to persuade defendants to plead guilty. It's lazy prosecuting - but it's not something we're complaining about!! 

If you're wondering how many penalty points you currently have on your driving licence, you can view your licence online with the DVLA. 

Calculating the length of disqualification 

• Establishing how over the limit the individual was at the time, according to any breathalyser, blood or urine tests taken
• The seriousness of any damage caused by the driver and their vehicle to property or the road
• Whether or not there were any injuries or a high likelihood of injury or death
• Whether or not the individual had been in trouble for similar offences before
• Where multiple offences have been committed, considering how much time has passed between each offence

What Shall I Do if I’m Arrested for Drink Driving?

If you find yourself accused of drink driving, the first thing to do is secure expert legal advice. Please do not speak with law enforcement without first consulting with a solicitor. 

Before you do anything else, we strongly advise that you get in touch with our team of legal professionals to discuss your circumstances and options. Our team of friendly and non judgmental experts will be on hand to respond to you as soon as possible and help to navigate you through the situation from start to finish. Contact us today.

If you'd like to discuss your case in detail, contact our team of specialists on 01514228020. All our initial advice is completely free of charge. We are able to explain in straightforward terms what is likely to happen in your case. 

Take a look at the most common drink driving defences. 

You may be wondering what happens if you get caught drink driving. Will you go to prison? How long will you be banned? Can you defend the allegation? These are important questions you need to ask before going into court. M.A.J Law is a family-run motoring defence practice. To discuss your case in confident, call our team on 01514228020.  

What happens if you get caught drink driving?

If you get caught drink driving you'll be asked to go to court. The reason you have to go to court is because the magistrates will want to ban you in person (assuming you plead guilty). Any person facing a driving disqualification (even for speeding) will be asked to attend court. If you fail to attend, the court could issue a warrant for your arrest. Drink driving is a summary-only offence. This means that it can only be dealt with in the Magistrates' Court. Take a look at some of most frequently asked questions about drink driving.

Drink Driving FAQ's 

Do I need to submit a guilty plea before the hearing?

No. We would never advise a client to submit a plea before the first court hearing. This is because the CPS are required to serve the initial evidence against you before you enter a plea. The initial evidence is known as the IDPC (initial details of the prosecution's case) and is usually sent out one week prior to the hearing (but only if you ask for it!). Once provided, we can assess whether any important defences arise (such as technical or procedural issues).

What happens if you plead guilty by post before the court hearing and then find fault with the evidence provided? If you've already pleaded guilty, you might find it difficult to reverse that decision without weakening your case. Always keep an open mind and seek the correct legal guidance before court. Even if you don't have a defence to the allegation, you may have a 'special reason'. This can help you avoid a driving ban. 

Even if you wait until the first court hearing to plead guilty, you will still receive maximum 'credit'. Therefore, there is no benefit to you in pleading guilty beforehand. Please remember that credit only applies to the punitive part of the penalty (in most cases, the fine). This might save you £100. Credit for an early guilty plea does not apply to the length of the disqualification. 

Can the court deal with my case in my absence?

This depends upon the status of your bail. If you were given a court date before you left the police station, it is likely you are bailed to attend court on the date shown on your paperwork. If you fail to attend, the court could issue a warrant for your arrest. The only exception is where you receive a postal requisition (a court date through the post). The rules surrounding postal charging is slightly different. In some circumstances, a barrister or solicitor can attend and enter a plea on your behalf. 

If you would like us to check the status of your bail, please get in touch. You are welcome to email us a copy of your charge documents. 

Can I represent myself for drink driving?

Yes. Every person has the right to defend a criminal charge in court, with or without representation. Before making a decision, ask yourself the following question: If you broke your leg, would you try and fix it yourself? In most cases, the answer is no. You'd leave it to the professionals. So why is a criminal case any different? 

As a specialist solicitor, I spend a lot of time representing clients in court across the country. I often see individuals representing themselves in front of magistrates and district judges. It's usually very awkward and uncomfortable for all involved. Unsurprising, most are convicted. 

If you're facing a serious allegation and a pending court hearing, leave it to the professionals. Don't try and botch it yourself. You get one chance to get it right. 

You may know that the team at M.A.J Law offer free initial (no obligation) advice. This means that even after speaking with us, you're welcome to ignore us and do it yourself! 

Do I need to fill out the means form before the hearing?

No. It's not necessary to fill out the means form before the court hearing; this can be done at court. The magistrates are really only concerned about your weekly income (so that they can calculate the fine). In most cases, the magistrates won't even ask for the mean form, they'll just ask you, or your solicitor, what you take home each week. As long as you've got a rough idea, you're usually okay. In any event, your earnings are only important if you plead guilty. If you enter a not guilty plea you will not be sentenced on the same day, thus your income is irrelevant. 

Can I take a family member to my drink driving court hearing?

Yes. You're usually allowed to take at least one family member to court with you for support. However, a family member is not entitled to speak in court on your behalf, or take on the role of a solicitor. You may be able to use a McKenzie Friend. 

Will I need to take character references to court?

Only if you want to plead guilty can character references be used. You can read our Character References 'Do's and Don'ts' to help you obtain the most helpful references. References may not be as helpful as you think. Please remember that drink driving carries a mandatory driving disqualification. The magistrates will refer to sentencing guidelines when passing sentence. The length of your driving ban depends upon the level of alcohol. 

Will I have to speak in court? 

You will only have to speak to confirm your name, address, date of birth and plea (i.e. guilty or not guilty). If you're represented, your barrister or solicitor will speak on your behalf and answer questions. If you intend on pleading not guilty, there's a considerable amount of paperwork that will need to be completed setting out the defences in your case. You can see an example of the paperwork here. 

If you're unrepresented and intend on pleading not guilty, the court are required to assist you in filling out paperwork and clarifying the defence issues. Some courts are more helpful than others. You may also find the CPS will take advantage of an unrepresented defendant. 

Will I get a free solicitor at court?

Most courts provide free legal advice. When you get to court, ask to speak to the duty solicitor. If the duty solicitor is available, they should see you before you go into court. A duty solicitor can offer general advice

Do I need a solicitor for drink driving?

We would always recommend instructing a solicitor for your drink driving court hearing. We understand that you may not appreciate the benefit of a solicitor if you've never been in this situation before. You might think that instructing a solicitor will make you seem 'more guilty'. The role of a solicitor it two fold. Firstly, the solicitor can advise you on the likely outcome of your case and whether you have a defence. This will enable you to plan ahead (particularly if you face a disqualification). Secondly, a solicitor can review the evidence provided by the prosecution and tell you if it's correct. Your solicitor may pick up on procedural errors which you might overlook. Remember that many of our cases are won on technical points of law and procedure. All of our clients are over the limit, but many aren't convicted. 

A specialist defence strategy may not cost you as much as you think. 

Next Steps

As a specialist solicitor, I spend a lot of time defending and challenging drink driving cases, both in and out of court. If you're wondering whether you need a drink driving solicitor, read our TIPS before you make a decision.

I am often asked whether drink driving is a criminal offence. This is an important question as it may impact upon your decision to plead guilty or not-guilty. A criminal conviction would usually result in a criminal record, as well as a requirement to notify employers, insurance etc... For more information and to discuss your case in confidence, call our team on 01514228020.

Drink driving laws actually date back to 1872. The Licencing Act created an offence of being drunk in charge of horses, carriages, steam engines and cattle! Many years later, The Road Safety Act 1967 created the first legal limit for alcohol (drink driving). Believe or not, the same legal limits apply today as back then! 

What are the legal limits?

1. In breath, the legal limit is 35 micrograms (ug) per 100 millilitres 

2. In blood, the legal limit is 80 milligrams of alcohol per 100 millilitres 
3. In urine, the legal limit is 107 milligrams of alcohol per 100 millilitres 

Is Drink Driving a Criminal Offence? 

Yes. Drink driving is classed as a criminal offence. Section 5(1)(a) of the Road Traffic Act 1988 makes it an offence for any person to drive a motor vehicle when the level of alcohol in their breath, blood or urine exceeds the prescribed limit. 

Schedule 2 of the Road Traffic Offenders Act 1988 contains a list of offences and the penalties given. The penalty for drink driving is a mandatory disqualification.

Drink Driving is a summary-only offence. This means that it can only be dealt with in the Magistrates' Court. More serious offences, known as 'either-way' offences or 'indictable-only' offences, may go to the Crown Court (such a murder, rape, robbery etc...). The maximum penalty in the Magistrates' Court (for a single offence) is 6 months in prison and a £5000 fine. 

If you'd like to know more about sentencing for drink driving offences, read our booklet on the Magistrates' Court Sentencing Guidelines. This booklet answers questions about prison, driving bans and spent convictions.

Do you get a Criminal Record for Drink Driving? 

I'm afraid so. Drink driving is a criminal offence and will result in a criminal record. A criminal conviction will never go away, it's always there and can always be found. Even if a criminal conviction becomes spent, it can still be detected on security checks carried out by employers. 

What are the consequences of a criminal record?

• Employment - Many employers conduct DBS checks for security reasons. A drink driving conviction will show in a DBS check.
• Travel - Some countries are very sensitive about drink driving conviction, in particular the USA and UAE. 
• Mortgage - Most lenders will enquire about criminal convictions before lending. You may be refused a mortgage.
• Business - If you're planning on becoming a director of a company (or you already are), your role within the company could be limited. 
• Insurance - Most insurance providers will ask about previous convictions. Your insurance premiums may increase.  

Can I still drive whilst on bail for drink driving? 

In most cases, yes (even if you plan on pleading guilty). The only exception is where the police impose a bail condition not to drive a motor vehicle. This is highly unlikely and may only happen in the most serious cases of drink driving. If you plead not guilty in court, you can continue to drive over the course of the adjournment (usually 3 - 6 months). 

Thinking of pleading guilty?

Our Case Studies take a look a real cases involving real people. You may also be interested in reading about court hearings in the Magistrates' Court and Sentencing Guidelines. You can also view our case studies page for more information.

A Summary of Recent Cases – Marcus A Johnstone

How to win the 'unwinnable' cases...

Drink Driving – Your First Court Hearing

This booklet discusses a drink driving first court hearing - Is a solicitor necessary?

Will you go to prison?

This booklet looks at the Magistrates' Court Sentencing Guidelines for drink driving

When will the disqualification for drink driving actually start? 

The driving disqualification will start from the date you are sentenced for the offence. It will not start from the date you committed the offence. If you have not been driving since the date of the offence, the court cannot 'backdate' the driving ban. It will start from the date of the hearing. 

Please remember that you can challenge a drink driving offence, even if you were over the prescribed limit. There are many defences that exist to a drink driving case, some of which you may never have heard of. If you'd like to discuss your case in confidence, please call our team on 01514228020 or you can request a call back using the form below. 

Drink Driving Court Procedure 

Attending court for drink driving can be a worrying experience. The courts are designed to feel intimidating - and can be, particularly for those who have never been to court before. The criminal courts in England and Wales have existed in some form for over a thousand years. In Anglo-Saxon times, the accused would be forced to pick up a red hot bar of iron, pluck a stone out of a cauldron of boiling water, or something as equally painful and dangerous. If their hand had begun to heal after three days they were considered to have God on their side, thus proving their innocence [www.judiciary.uk]. Thankfully, much has changed since Anglo-Saxon times! 

Get to court on time and plan your route!

Your police paperwork will probably contain a date and time to attend court. Make sure you plan your route to court before the day of the hearing to make sure you know which court to attend and where to park. On the day of the hearing leave early to allow for traffic.

You can plan your route using Google Maps. You will find the court address on the paperwork. M.AJ Law is a specialist driving defence firm. We represent client across the country charged with serious driving offences. If you would like more information about the court dealing with your case, please get in touch. We have first hand knowledge of all courts in England and Wales. 

Going to court FAQ's

Q. Do I need to notify the court of my plea before the hearing?

A common question is whether you need to notify the court of your plea before the hearing date. The answer is no. Unless you've received a Single Justice Procedure Notice (not applicable to drink or drug driving cases), it is not necessary to notify the court before the hearing date. It is always advisable that you speak to a solicitor and check the evidence before you decide to plead guilty. 

M.A.J Law offer free initial advice. We'd be happy to discuss your case in detail and review the options open to you. Contact us using the contact form below. 

You might see a means form (MC100) attached to the paperwork you have received. It is not actually necessary to fill out the means form before attending court; so long as you're able to tell the court what you earn. Of course, your earnings only become important if you're being sentenced for the offence. M.A.J Law may recommend a not guilty plea if we believe you have a defence. 

Q. Should you drive to your first court hearing? 

This all depends on whether you plan on pleading guilty. If you do, don't drive. This is because drink driving carries a mandatory driving disqualification. The driving ban takes immediate effect and cannot be avoided if you plead guilty (unless you raise a special reason). If you're caught driving whilst disqualified, you will probably go to prison. To work out the length of your driving disqualification, you can use our Drink Driving Penalty Calculator:

Q. What happens when I arrive at court?

When you arrive at court you'll go through a security check. This will involve an airport-style scanner and a security wand. If you carry a bag, this will be checked. For obvious reasons, don't take sharp objects, scissors, knives etc... to court. If you do, they will be confiscated and won't be returned. These will be taken from you and might not be returned. Liquids will also be checked and you might be asked to sip any liquid you're carrying. 

Depending on the layout of the court, you may be asked to 'sign in' with reception or wait in the seating area for a court usher to appear. Keep a look out for the court list. This is usually found on a notice board as you step in to the court building and will contain a list of every person in court that day. It will also tell you which court room your case will be heard in. There could be up to 10 court rooms inside a court building. If at any point you're unsure, make sure you ask a court usher or a member of court staff. 

If we are representing you we would usually obtain the evidence before the court hearing. We would discuss this with you and provide you with a copy. This will give you a 'heads up' before you get to court, so you know what to expect. It will also give us time to prepare your defence before the day of court. We will also discuss this with you in a quiet conference room whilst at court. We can then make a final decision on how to proceed. Ultimately there are two options - plead guilty or not guilty.

Q. What happens in the court room?

You may not be in court at the exact time shown on your police paperwork. Hearings in the Magistrates' Court are often delayed, meaning you're waiting around in court. Don't panic if your case isn't called on straight away. There will always be priority cases that take precedent over yours. This is normal.

When the court are ready, your name will be called out by the court usher. You'll then be led into court by this person and asked to stand in the dock. Keep your hands out of your pockets and stay standing. The Legal Advisor will then ask you to confirm your full name, address and date of birth. This is confirmed in open court with solicitors, barrister, court staff and sometime the press present. 

After this, the Legal Advisor will read out the charge/s and ask you to enter a plea. You will respond with either 'guilty' or 'not guilty'. Once you've entered your plea you'll be asked to sit down whilst the prosecutor outlines the facts of the case against you. Following which, your solicitor/barrister will set out your defence (assuming you're pleading not guilty) and take the court through the individual issues. A trial date should then be set. 

If you plead guilty, the only difference is that your representative will present mitigation. The purpose of mitigation is to persuade the court to impose the minimum penalty by highlighting any mitigating features of your case. Please remember that you will always be given the opportunity to mitigate, even if you're convicted after a trial. 

If you are unrepresented then you will be asked to speak in court. 

Q. What do I wear to court?

Dress smartly. If you own a suit, wear it. If not, jeans/black pants and a smart shirt/blouse will do. If you turn up in clothing that is not appropriate this could be considered disrespectful to the court. 

Q. Do I need to fill out the MC100 Statement of Means form before the court hearing?

It's entirely up to you. The MC100 Statements of Means is only presented to the court if you plead guilty. This is because you will likely be fined (unless you receive community service or prison). The fine is means tested and depends upon what you earn. The less you earn the less you pay. If your income various week to week, an average will do. The court may also ask about savings and a partner's income. 

Your Arrest

Drink driving offences usually start with an arrest. It might be that you were pulled over by the police, or perhaps you were involved in an accident and the police arrived a short time later. Whatever the circumstance, a sample of breath, blood or urine will have been taken from you. If you failed to provide a sample, click here. 

You can read more about police procedure on our drink driving page. You should always consider the police procedure in your case. One of the most common ways that we win drink driving cases is because the police don't follow the correct procedures. Over worked officers, lack of training, bad attitudes - whatever the excuse, the case should fail. 

Next Steps 

Photo credit: University of Derby

The decision comes following the declaration of a national health epidemic. According to the BBC, over 2000 people died from over-doses alone in British Columbia last year. Vancouver mayor Kennedy Stewart said the decision "marks a fundamental rethinking of drug policy that favours healthcare over handcuffs".

The programme will run for approximately three years and under the new law, adults will be allowed to possess a combined total of 2.5 grams of opioids, cocaine, methamphetamine and MDMA. These drugs will still be illegal, but possession of a small amount for personal use will not land a person in jail. There are some exemptions to the scheme, which will not apply to primary and secondary school grounds, child-care facilities, airports, or to members of Canada's military.

This is a clear change in the thought-process of one of the West's leading countries in relation to drug laws. Currently, cocaine, MDMA and methamphetamine are illegal in the UK and possession of any of the above could mean a lengthy prison sentence. 

Useful Links;

Mind Mental Health Support 

Adaction 

NHS Drug Addition

Turning Point 

What are the most commonly used defences in drink driving cases? 

Conor Johnstone is a solicitor who specialises in defending motoring offences, in particular, drink and drug driving allegations. He regularly attends court to represent clients and has first-hand knowledge of most courts across England and Wales. Over the years, Conor has built a formidable reputation for his extensive knowledge of technical defences and statutory loopholes. It's fair to say he's every prosecutors' worst nightmare! Conor and his legal team continue to win an impressive number of motoring cases. 

When choosing a solicitor, there are few things to check before making a decision. The right legal team is absolutely critical to the outcome of your case. First of all, don't be afraid to ask if the person handling your case or giving you advice is actually a solicitor. There are a lot of paralegals/case-workers/assistants and wannabe-lawyers giving legal advice over the phone. Make sure the person you're speaking to has the necessary experience to offer the right advice. If you are speaking to a solicitor, it's absolutely essential that the solicitor goes to court. That might sound silly - a solicitor who doesn't go to court - but it's actually quite common. A solicitor who spends all their time in an office may struggle to understand the technical, procedural and evidential ways that a drink driving case is defended. What happens in court is very different to what you read out of a law book!

Finally, make sure the solicitor you instruct is a specialist. Conor regularly wins cases on technical points of law and procedure. Defences might relate to the operation of an evidential breath testing device or alcohol elimination rates. A solicitor who deals with all areas of law may overlook the obvious defences.

To summarise;

• Make sure you're speaking to a solicitor 
• Does the solicitor represent clients in court?
• Do they specialise in drink driving cases? 

Defending a drink driving allegation

If you've been charged with drink driving, it's probably because you provided a breath, blood or urine reading above the legal limit. Just because you've been charged does not mean that you are guilty of the offence - even if you think you are. I'm often called by people who find themselves in this situation. They've been charged with drink driving and the court hearing is around the corner. They often tell me (and assume that I agree) that they have to plead guilty - "there's no other choice, is there?".

Not true. Every defendant has the right to plead not guilty to a drink driving charge. Please also remember that before the first court hearing I can obtain the initial evidence against you (known as the IDPC). If I can find any fault with the evidence against you, I may be able to persuade the police/CPS to drop the case before or during the first court hearing. Once we have the IDPC, we can then make clearer decisions regarding your plea and, of course, any available defences.

Over the course of 2021, M.A.J Law has continued to successfully defend countless drink driving cases, breaking all our previous records. We are continually impressed by the efforts our 20-strong team and the results we achieve. We have listed below the most common drink driving defences used by M.A.J Law throughout 2021. Remember, all our advice is completely free of charge. If you'd like to discuss your case in confidence, please call us on 01514228020. 

1. Disclosure

   Drink driving cases are sometimes seen as 'low-priority' nuisance cases by the CPS. Once a not-guilty plea is entered with the court, the CPS has 28 days (under the court's standard directions) to serve any initial disclosure, including witness statements, procedural forms, CCTV etc... Within this time they must also serve a Schedule of Unused Material (listing any items/material the CPS possess but do not want us to see).  

   The CPS regularly fail to provide the correct disclosure within the required timeframe. Over-worked prosecutors and under-qualified assistants are the number one reason for CPS mishaps. Whatever the excuse, if the paperwork is not served in time, we can apply to exclude it. No evidence. No conviction.
   You can read more about prosecution failures here.  

2. Procedure

   The correctness of the testing procedure is hughely important in any drink driving case. The police must complete a 20 page booklet known as the MGDDA document before obtaining the breath sample. This booklet contains various questions about the procedure and important legal requirements. If the police cut-corners or make silly mistakes (as they often do), they are not entitled to use the breath, blood or urine reading against you. This is one of the most common ways that drink driving cases will fail.

   You can view a complete copy of the MGDD documents here. 

3. Inaccurate results

   Evidential breath testing macines are around 15 - 20 years old. They must be maintained correctly and serviced regularly. How do you know the breath machine was working correctly and have you seen calibration records? Remember that you can always ask the CPS to supply data relating to this device.

   What about medication? We have the option to instruct an expert toxicologist to comment on the interaction between medication and breath alcohol levels. 

4. Post Driving Consumption (The Hip Flask Defence)

   You may have a complete defence if you consumed alcohol after driving but before the test. Section 15(3) of the Road Traffic Offenders Act 1988 displaces a presumption that you were over the legal limit at the time of driving if you can prove, on a balance of probabilities, that you consumed alcohol after driving. Plainly you should not be convicted of drink driving if you were not over the limit at the time of driving! This type of argument usually requires expert evidence from a toxicologist who can conduct a Blood Alcohol Concentration calculation. Try not to worry too much about this; we can facilitate a full report. You can read more about Post Driving Consumption here. 

5. Cracknell v Willis

   What if you dispute the level of alcohol in your breath but you cannot explain the result? Cracknell v Willis is a defence of 'man versus machine'. A defendant can claim that the alcohol he consumed could not have accounted for the reading provided. Take the following example: Mr Price drinks two pints of beer at a local pub with two friends. On his way home he's stopped and breathalysed. He fails. At the police station his breath reading is 85ug. It doesn't take an expert to workout that two pints of beer couldn't account for a breath reading of 85ug. Mr Price has no explanation for the result and the police maintain that it's an accurate reading. In court, Mr Price can tell the court what he drank. His friends, too, can give evidence to support his account. If the magistrates believe Mr Price they can acquit him - even if the machine seems to have worked reliably.

6. Consent

   By law, a person must agree to provide a specimen for alcohol analysis. The police must make a legal requirement for you to provide a sample of breath, blood or urine. Within that legal requirement is a request for your consent. If you do not give your consent, or if you're not asked, the results may not be admissible in evidence against you. I have copied below the legal requirement to provide a specimen of breath. This is taken from the MGDDA document. Do you remember the officer reading this out?

   I require you to provide two specimens of breath by means of an approved device. The specimen with the lower proportion of alcohol will be used as evidence and the higher will be disregarded. I warn you that a failure to provide either of these specimens will render you liable to prosecution. Do you agree to provide two specimens of breath for analysis?

7. The 'Jubb v DPP' argument

   By law, a police officer can only require you to provide a specimen on one occasion. He cannot give multiple requirements for you to provide a specimen. If, for example, you are required by a police officer to provide two specimens of breath and you comply, you cannot then be asked to provide more. If appropriate, the officer may invite you to provide additional specimens, but he cannot require you to. If you think this scenario might apply in your case, please contact our team of solicitors for free advice.  

8. Section 16(4) - The Printout 

   Did you receive a printout from the breath test machine? This printout is treated as a 'certificate of analysis' for the purposes of Section 16(4) of the Road Traffic Act 1988. This means that its purpose is to prove the proportion of alcohol in your breath, as well as the automatic calibration checks conducted by the machine. A certificate of analysis must be served on the defence not less than seven days prior to a trial. If it is not served it may not be admissible. We recently won a case at Preston Magistrates' Court for a client who was three times the legal limit. Five police officers attended the trial to give evidence. The prosecutor was forced to drop the case once it became apparent the printout hadn't been served on the defence! 

9. Witness attendance 

   Remember that the CPS will need to call witnesses to court in order to prove its case. In most motoring cases, witnesses are going to be police officers. It still amazes me how often the CPS fail to bring the right witnesses to court. Sick leave, annual leave, training days - these are all reasons why the officers might fail to turn up. No witnesses, no case! 

10. Driver Identification 

    The final defence relates to 'driver identification' - Can the police prove that you drove the vehicle? Obviously if you were pulled over by the police then it's more difficult to challenge the case on this basis. But what happens if you were involved in a collision and the police only arrived afterwards? Or perhaps you were stationary when the police turned up. You do not have to admit to being the vehicle driver just because the police ask you. I always ask the police to prove that my client was driving the vehicle. It's important to understand the difference between circumstantial evidence and direct evidence. Circumstantial evidence is where the facts 'suggest' that you were driving (i.e. you're insured to drive the vehicle or the vehicle belongs to you). Direct evidence is where the police witness you directly driving the vehicle. In the Magistrates' Court, circumstantial evidence may not be sufficient to persuade the magistrates. Even if the officer saw you driving, he will need to attend court to confirm that fact. Many of our cases are won because the police fail to turn up on court dates. 

Why is it important to defend a drink driving case? 

You will know by now that drink driving carries a mandatory driving disqualification. This means that if you are convicted, the court must disqualify you. The minimum disqualification is 12 months. The higher the breath reading the longer the disqualification. A motorist may also receive community service and, in more serious cases, a prison sentence. The court's sentence depends upon many factors including;

• The defendant's previous record
• Aggravating and mitigating factors 
• Injuries caused to others 
• Evidence of bad driving or serious impairment
• The breath, blood or urine result 
• Whether the defendant shows remorse 

If you provided a breath reading above 87.5 (equivalent to 200mg in blood) you are automatically considered a 'High Risk Offender' (HROs). You can read more above HRO's on our High Risk Offenders page. 

We have produced a details booklet on the Magistrates' Court Sentencing Guidelines. This will give you much more information about the type of penalties imposed by the courts. 

Going to Court

For most, court is an unpleasant experience. No doubt you will be worried about the prospect of attending court and having to speak in front of barrister, solicitors and judges. It's important to seek the correct legal advice in relation to your options, the sentence, and any defences that might apply. Solicitors come in all shapes and sizes. Most have never defended a drink driving case and wouldn't know where to start! Some solicitors are cheap, others are more expensive.

We've prepared a comprehensive guide to help you with your first court hearing. You access this here.

If you would like to speak with someone about your options, please get in touch. All our initial advice is completely free of charge. We are able to tell you within minutes whether you have a defence to the allegation. We can also outline our costs so they're clear from the outset. 

Drink Driving Solicitor Fees

Defending a drink driving case may not be as expensive as you might think. To make life easier, we separate our fees into stages, meaning you only pay for the work that's needed - rather than paying for the full case upfront. Many of our cases are won on or even before the first court hearing.

To ask about our fees, please call us on 01514228020. 

Next Steps 

If you want more information about how to defend a drink driving case, you can review our Case Studies. Alternatively, please get in touch for free legal advice. 

Our senior solicitor Conor Johnstone attended court yesterday to represent a client charged with drug driving. During the hearing the prosecutor asked for the court to be cleared whilst she discussed the case with Mr Johnstone. This was an unusual request that momentarily left Mr Johnstone stumped! 

The prosecutor explained that she had just received an email from a 'Senior Manager' within the Crown Prosecution Service requesting that all drug driving Cannabis cases be adjourned for at least two weeks. She explained that the Forensic Science Regulator had discovered an "issue" with the testing of Delta-9 Tetrahydrocannabinol (THC). Mr Johnstone questioned the prosecutor about the nature of the "issue" but she had very little information. 

In response, the team at M.A.J. Law have contacted several senior toxicologists with regards to the issue but they appear to be unaware of the developments. One senior toxicologist has expressed concerns with regards to Cellmark Forensic Services, a major lab used by the police for the testing of samples in drug driving cases. It is not yet known whether the issue relates to one laboratory or multiple labs involving the testing of samples in drug driving cases.

Readers may recall the 2016 'Randox Testing Scandal' where tens of thousands of drug driving cases were dropped due to ongoing quality control issues. The events at court yesterday has characteristics of another testing scandal.

Challenging SFR1 and SFR2/ADP

Our drug driving technical defence page explains the importance of reviewing the technical data relating to your blood test. Police laboratories are not fool-proof.

Free Advice 

M.A.J Law offers free initial advice. Please call to speak in confidence to a member of our specialist team. Our office number is 01514228020. 

Arrested for Drug Driving

What you need to know

In our latest series, Marcus A Johnstone (Senior Solicitor at M.A.J Law) discusses the key features of a drug driving case. 

Marcus Johnstone is the solicitor in charge of M.A.J Law. M.A.J Law specialise in defending criminal motoring offences. Most of Marcus' time is spent challenging drug driving cases in Magistrates' Court across the country. 

Drug driving is a recent offence, introduced after the Government felt pressure to create legal limits for certain drugs. If you're under investigation for drug driving it is very important to get legal advice quickly. We may be able to prevent the case reaching court. 

Each drug under Section 5A has a different legal limit. For Cannabis, the legal limit is 2ug/L. This is very low and often referred to as 'zero tolerance'. If you tested positive for Cannabis at the roadside you were probably over the limit (and will subsequently fail to blood test). 

In the video, Marcus explains that it is crucial to consider your options. You do not have to plead guilty to drug driving, even if you're over the limit. Before making a decision about whether to plea guilty or not, try to obtain legal advice. Most solicitors, including M.A.J Law, offer free initial telephone advice. Talk through your options and think about the risks either way. 

The importance of challenging forensic evidence in drug driving cases

In 2015, a new offence was created making it unlawful to drive whilst over a specified drug limit.

One of the most important pieces of evidence in any drug driving case is the Streamlined Forensic Toxicology Report, also known as the SFR1. This four page document will contain;

• The result of the analysis
• The location and name of the laboratory
• The name of the Forensic Analyst
• The date of analysis

Streamlined forensic reports were first introduced in 2012. The idea behind this was to reduce costs for the prosecution by avoiding unnecessary 15 page forensic reports in all cases. The streamlined forensic reporting process has two stages.

1. First, the CPS will present the SFR1 (the ‘basic’ report). This is not a witness statement nor it is an expert report. It will not contain a declaration from the expert and it cannot be relied upon at trial. The information contained within this report is limited and often useless.
2. If the SFR1 report is not accepted by the defence, stage 2 comes into play. By rejecting the SFR1, the CPS are forced to produce a secondary report containing valuable and detailed information (which is often far more useful to the defence!). This report is known as the SFR2. The defence will still have the option to reject the SFR2 and require the expert to attend trial (causing even more problems for the CPS!).

Should you trust an SFR1?

Many people, when charged with a drug driving offence, will take this document at ‘face value’. They assume that this has come from a laboratory and must, therefore, be correct. This is very risky.

As a general rule, you should not accept the SFR1. The analyst who signs-off the report in most cases won’t have seen your blood sample. The work is normally conducted by lab assistants and then simply signed off by one of the more senior lab analysts. It is common practice for senior lab analysts to approve reports without even looking at them. This happened recently with Randox Testing Services.

There are very strict procedures that should be followed from the point the blood is drawn from your arm, to the point of analysis. As specialist defence solicitors, we are able to outline specific reasons for rejecting the report.

There are a five key reasons why you need to see SFR2 (full evaluative report);

• Method of analysis – There are two common types of commercial sample preparation techniques (LCMS & GCMS). Some drug metabolites are better suited to certain analytical techniques.
• Standard Deviation Deduction – By law, laboratories must deduct a required amount from the measured result to allow for ‘normal analytical variation’. This can range from 20 – 30%. If the laboratory fails to do this, you could be unfairly charged.
• Date of analysis – Guidance released recently by the HM Inspectorate requires all police forces to process forensic samples to laboratories within one week. M.A.J. Law has found that many forces will wait until the month-end to arrange collection by courier. This reduces costs for police forces but can affect sample reliability.
• CPS difficulties – If the SFR1 is not agreed, the CPS must produce a detailed SFR2. They should also provide a ‘data pack’ containing specialist analytical information relating to the sampling of your specimen. In approximately 90% of cases M.A.J. Law defend, the CPS will fail to provide the correct evidence. This can directly result in the case collapsing.

Analytical Data Pack

It is also important that we ask the CPS to provide the full blood analytical data pack. This provides roughly 100 pages of raw data detailing technical analytical information (such as calibration graphs & plots, standard deviation checks, quality control measures etc…). Only once we have seen this information can we truly accept the result of any drug driving analysis. If the CPS fail to service, there is no evidence to prove an accurate analysis.

The concerns that we have are well justified. Only recently, one of the laboratories used by police forces nationwide lost its accreditation to analyse blood samples in drug drive cases when 2 of its analysts were arrested for ‘perverting the course of justice’. More information on this story can be found here or here.

If you are facing a charge of drug driving, it is always advisable to speak to a specialist solicitor to find out the best way to proceed. If you would like to speak to one of our specialists, call us on 0151 422 8020 or make an enquiry through our contact form.

Drink driving, drug driving and failing to provide a specimen are all known as ‘summary only offences’. This means that they can only be tried in the Magistrates’ Court. A Magistrates’ Court will consist of 3 lay Magistrates, or a District Judge sitting alone. There are no gowns, wigs or juries in the Magistrates’ Court – it is a much more relaxed and informal environment than what you can expect in higher courts (such as the Crown Court or High Court). An in-depth understanding of trial process in the Magistrates’ Court can significantly increase your chances of winning.

The trial process

At the start of the trial, the Crown has the option to give an opening speech. In practice, the Crown will very rarely make an opening speech. This is because the Magistrates and District Judges are familiar with the type of cases that normally appear before them and they will also have had an opportunity to read the case summary before the trial began. Should the Crown decide to make an opening speech, it is normally very brief and will outline the relevant law and facts.

The Crown will then start to present its evidence. One by one, they will call their witnesses to give evidence. In most cases that our team defend, the witnesses are officers and forensic scientists involved in the case. The witness will normally be present in court and will physically go into the witness box. On occasion, however, a witness may give evidence via ‘live link’, which means that they will not be physically present in court, but will be present in court via a video link. ‘Live link’ helps to reduce the costs associated with bringing prosecution witnesses to court.

Please be aware that, unless otherwise directed by the court, the CPS will be expected to make a ‘link link’ application prior to trial. If the CPS fail to make the application (as is often the case), its witnesses may be prevented from giving evidence at trial

When the Crown call a witness to give evidence, that particular witness will start by giving their ‘evidence in chief’. This is where the Crown’s representative – a barrister or solicitor – will ask a series of questions to the witness so that they have the opportunity to tell their story. In a drink/drug driving or failing to provide a specimen case, the majority of witnesses are normally police officers. On occasion, there may be lay witnesses giving evidence of a purely factual nature, for example “I saw the defendant driving the car from the car park to Smithdown Road”.

There are strict rules in relation to the questions that can be asked of a witness during evidence in chief. The key principle is that leading questions are prohibited (unless both sides agree that a witness can be lead on a certain point). This means that a witness cannot be asked a question that implies the answer. To give an example, a leading question would be “Officer, you completed the form MGDDA during the breathalyser procedure, didn’t you?” This type of question is not allowed. Instead, the question should be phrased “Officer, explain to the court what happened during the breathalyser procedure”.

Once the witness has given their evidence in chief, it is the turn for your representative to cross examine that witness. The rules for cross examination are much more relaxed than the rules for evidence in chief. For the most part, any type of question, including leading questions, are allowed. The purpose of cross examination is to undermine the evidence given by, and the credibility of, a witness. If a witness says something during their evidence in court that differs from something that they have written in their previous witness statement, then this will be exposed in cross examination. This is known as a previous inconsistent statement.

M.A.J. Law will frequently find fault with evidence presented by witnesses whilst in court, even if the prosecution’s ‘evidence on paper’ appears to be accurate. The general rule is that you should always push a case to trial (assuming there are sufficient grounds to do so). If you plead guilty prior to a trial, you may be letting the CPS “off the hook”. Many cases are dismissed because CPS witnesses failure to turn up for trial, this includes police officers.

GET HELP NOW

It is always advisable that a specialist solicitor represent you in court.

0151 922 8020

Our team have spent years fine-tuning defence strategies and technical arguments.

This process of examination in chief followed by cross examination will continue until the crown has called all of its witnesses. On occasion, there may a witness on behalf of the Crown that is giving evidence that is not contentious (i.e. the Defence do not take issue with that witness’ evidence). In these circumstances, their witness statement will simply be read to the court and the witness will not be cross examined.

Any witness waiting to give evidence must wait outside of the court room until they are called. They should not be able to hear the evidence in the case. The only exception is if a witness is a party to the case or if the witness is an expert.

Once the Crown has called all of its witnesses, it is then the turn of the Defence to present its case. The Crown would not give a closing speech at this stage.

The Trial Process – the defence case

Before calling any witnesses, the Defence can make a submission of no case to answer (known also as a half time submission). This would be done if Crown’s case is particularly weak, or has failed to prove an essential element of the offence (such as whether the defendant was the driver). It must be shown by the Defence that the Crown’s case, taken at its strongest, is insufficient for any reasonable court properly to convict. The Crown would then have the opportunity to respond to such a submission.

If a half time submission is not made, or if it is made unsuccessfully, the Defence will proceed to call its witnesses. One by one, the Defence witnesses will go into the witness box to give evidence. It is the same procedure as before, only this time the Defence representative asks questions during examination in chief and the Crown’s representative asks questions during cross examination. Defence witnesses usually include;

1. The defendant
2. An expert witness
3. Friends or family of the defendant (who witnessed consumption, for example)
4. Witnesses to corroborate the defendant’s account

As a Defendant, you have the option as to whether you wish to give evidence. There is no requirement for you to give evidence. The Court has the right to draw an adverse inference if you do not give evidence (i.e. that you have something to hide), but an adverse inference would normally only be drawn if a substantive defence was being raised and you did not give evidence.

…any damage caused by an adverse inference may be less than the damaged caused by the defendant giving evidence

An example of a substantive defence would be to argue that you were not the driver of the vehicle. If you are merely raising a technical defence, for example that the breathalyser procedure was conducted incorrectly, then it is quite normal in many circumstances that you would not give evidence as your evidence would be unlikely to add much weight to the proceedings.

Once all defence witnesses have been called, the Crown has the opportunity to give a closing speech. Once the Crown has made a closing speech, if any, your representative in court would then close their case.

Once the closing speeches have been given, a lay bench would retire to consider its verdict before giving judgment. District Judges may retire to consider their verdict, but normally they would give their judgment as soon as the closing speeches conclude.

If the decision is that you are not guilty, the matter will end there and you are free to leave court. If you are convicted, the court will then move on to sentencing.

Sentencing Guidelines

All you need to know about the Magistrates’ Court Sentencing Guidelines

During a sentencing exercise, the Crown will give details of your character and previous convictions (if any). A pre-sentence report would then be placed before the court (if it exists) – usually only required in the more serious cases, such as breath readings in excess of 90 microgrammes. Your representative would then make a plea in mitigation, which is an argument trying to persuade the court to give you a more lenient sentence. The court would then pass sentence which would take effect immediately.

Almost 500 drug driving toxicology results are under review following claims that Randox Testing Services manipulated test results. Randox Testing Services said the manipulation was of quality control data supporting the test results, rather than the samples themselves. Two staff members have been arrested by Greater Manchester Police as part of the criminal inquiry into a substantial “quality failure”.

If you have been convicted based on results provided by Randox Testing Services, you may have an automatic right of appeal against your conviction.

A month before the Randox Testing Services scandal came to light, M.A.J. Law obtained a report from an independent forensic toxicologist who had serious concerns about the methods of analysis employed by RTS.

The independent report describes the issue as a ‘data anomaly’ that relates specifically to the calibration range used by RTS when analysing THC (the psychoactive element in Marijuana). Until the investigation is complete as to how this has occurred it is not known how widespread this issue might be.

Appeal against a drug driving conviction – Randox Testing Services

Police Forces around the country will now determine which drug driving blood cases involved ‘compromised’ data. This information should be passed onto the CPS who have a duty to reopen the case. It is likely that any conviction based on inaccurate data will be quashed (unless the sample still exists and can be reanalysed).

However, you do not have to wait until the police finish their enquiries. You may have an automatic right of appeal against your conviction immediately. It is your right to know whether the results provided in your case were accurate or whether a miscarriage of justice has taken place. You may also be entitled to compensation if you have been wrongly convicted.

To appeal a Randox Drug Driving Conviction Call

0151 422 8020

Our aim is to overturn your conviction

How long until I can drive? – ‘Sleeping it off’ this Christmas

The chart below is not intended to help you work out how much you can ‘get away’ with drinking before driving. It is intended simply to give you some understanding of alcohol elimination rates and timings of alcohol absorption. You may be surprised by the results.

If you plan on driving at all this Christmas – don’t drink. Leave the car at home and make alternative arrangements. Some bars are offering free soft drinks to dedicated drivers. That is the safest and most reliable advice!

When will you be safe to drive?

Christmas Party – How much can I drink?

There is no ‘one size fits all’ formula when it comes to alcohol consumption and absorption; everyone will process alcohol differently. Your elimination rate depends on;

• Your age, weight, sex and metabolism
• Your stress levels
• What food you’ve consumed
• What medication you take
• The type of alcohol you’re consuming

You’ll note from the charts above that it takes approximately 1 hour for alcohol to enter your bloodstream. After that, the body can begin removing the alcohol at a rate of 1 unit per hour (or 7 microgrammes per hour).

As above, if you plan on driving – don’t drink. If you plan on driving the following morning, be cautious about the amount of alcohol being consumed.

Christmas Drink Driving Campaigns

For over 40 years, police forces across England and Wales have cracked-down on drink drivers over the festive period.
Market research firm – Qa – have joined forces with Essex Constabulary to determine the effectiveness of drink driving campaigns. Are they a short-term solution, or a long-term deterrent?

400 people conducted an online questionnaire. Non-drivers were also included in this demographic. The aims of the research included;

• Measuring awareness levels of the campaign amongst the target audience
• Evaluating ‘take-out’ from the campaign to establish if the key messages worked
• Gauging the campaign’s perceived impact on driving behaviour

Despite the nature of the questions – and the time of year – over 25% of respondents still failed to recognise the primary message of the campaign – “don’t drink and drive”! 1 in 10 of those questioned said the campaign had not highlighted the consequences of drink driving.

Tips if you know you’ll be driving the next day

• Appoint a designated driver
• Take advantage of public transport, taxis or partners/parents!
• If you have no option but to drive, stick to zero alcohol beers, mocktails or standard soft drinks
• Buy a hand-held breathalyser online or from an automotive store (be aware, however, that these may not be very accurate)

Call to speak with a specialist solicitor

If you’d prefer to discuss your drink driving case immediately with a specialist solicitor, please call our team on

0151 422 8020

A recent report by the Parliamentary and Health Service Ombudsman has found ‘major failings’ in certain sectors of the DVLA.
The biggest concerns relate to the Drivers Medical Group (which considers whether individuals who suffer with complex medical conditions such as Epilepsy, Posture Correctors, Strokes, neurological and mental health conditions are safe to drive).
A number of complaints were received by the Ombudsman surrounding individuals who suffer with complex conditions and were unfairly prevented from driving, some for several years, even though Medical Practitioners found the individuals medically safe to drive. It was found that there had been flawed decisions, significant delays, poor communication and complaint handling in these cases.

People’s lives have been put on hold for years because of severe delays and flawed decisions by the DVLA, leading people to lose their jobs, causing stress, worry and isolation.

Oliver Morley, chief executive of the DVLA, said it was sorry for the way some drivers’ cases were handled.

Nick Lyes, RAC public affairs spokesman, said it was vital for the DVLA to reduce unnecessary delays – but it also had a balancing act to perform.

It is vitally important that those who need their vehicles and are safe to use them can do so in the quickest time possible, but there is also a duty on authorities to keep our roads and drivers as safe as possible.

If your license has been revoked unfairly for an indefinite period, there are routes of appeal. M.A.J. Law specialise in defending drivers nationwide. If you feel as though you have been unfairly prejudiced by the DVLA as a result of a medical condition you suffer, please get in touch to discuss your options. Appealing the DVLA’s decision is not a difficult process, but the grounds on which you are appealing must be clearly established. M.A.J. Law work closely with independent toxicologists and medical experts who can assist in the appeal process by producing medical reports stating why you are not a danger on the road.

To find out how to challenge the DVLA’s decision, please call our team on

0151 422 8020

to speak with a specialist solicitor

How long until I can drive? – ‘Sleeping it off’

The chart below is not intended to help you work out how much you can ‘get away’ with drinking before driving. It is intended simply to give you some understanding of alcohol elimination rates and timings of alcohol absorption. You may be surprised by the results.

If you plan on driving – don’t drink. Leave the car at home and make alternative arrangements. That is the safest and most reliable advice!

When will you be safe to drive?

Taking Risks – How much can I drink?

There is no ‘one size fits all’ formula when it comes to alcohol consumption and absorption. The amount of alcohol you would need to drink to be considered over the driving limit varies from person to person. It depends on;

• Your age, weight, sex and metabolism
• Your stress levels
• What food you’ve consumed
• What medication you take
• The type of alcohol you’re consuming

You’ll note from the chart above that it takes approximately 1 hour for alcohol to enter your bloodstream. After that, the body can begin removing the alcohol at a rate of 1 unit per hour (or 7 microgrammes per hour).

Drink Driving Defence

You may have a full defence to the drink driving allegation against you.
Our Drink Driving Defence booklet contains a comprehensive list of the most common defences.

Drink Driving in England and Wales

In England and Wales, the alcohol limit for drivers is 80 milligrammes of alcohol per 100 millilitres of blood, 35 microgrammes per 100 millilitres of breath or 107 milligrammes per 100 millilitres of urine. In most other European countries, the limit is less, usually 50 milligrammes per 100 millilitres of blood (around 22 microgrammes).

The drink driving limit is not set at the point in which a motorist is deemed to be ‘drunk’. In fact, many of those arrested for this offence will often report feeling ‘complete fine’. The drink driving limit in England and Wales is set at the point that a motorist’s reactions are deemed to be dangerously slow.

Many of the functions that we depend on to drive safely are affected when we drink alcohol. Alcohol can cause;

• Hazy thinking
• Slowed reaction time
• Dulled hearing
• Impaired vision
• Weakened muscles

Tips if you know you’ll be driving the next day

• Appoint a designated driver
• Take advantage of public transport, taxis or partners/parents!
• If you have no option but to drive, stick to zero alcohol beers, mocktails or standard soft drinks
• Buy a hand-held breathalyser online or from an automotive store

Could you Benefit from Expert Advice?

If you’d prefer to discuss your drink driving case immediatelywith a specialist solicitor, please call our team on

0151 422 8020