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Drink Driving Defences and Special Reasons Arguments

by | Mar 17, 2022 | Articles, Barristers, Driving Offence Advice

This article will focus on the offence of drink driving, together with the argument of special reasons. At Kang & Co Solicitors, we have vast experience in the of Drink Driving Defences and can assist you when facing such a charge.

The Offence of Drink Driving

The offence is contained within the Road Traffic Act 1988 (“the RTA 1988”) at section 4, it provides:

“(1) If a person—

(a) drives or attempts to drive a motor vehicle on a road or other public place, or

(b) is in charge of a motor vehicle on a road or other public place,

after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence.”

 The prescribed limits are:

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

This legislation in fact creates two distinct offences which can be charged; (i) driving/attempting to drive whilst over the prescribed limit; and (ii) being in charge of a vehicle whilst over the prescribed limit. It depends on what evidence the prosecutors have when bringing a charge under section 4, as to what a client will face throughout the Court process.

To prove whether someone has been driving whilst over the prescribed limit, a police officer, during the course of a stopping a vehicle suspected of being driven (or from evidence from a civilian witnessing the driving), must require a “preliminary test” at the roadside (see – section 6, 6A, 6B & 6C of the RTA 1988). These preliminary tests can be breath, impairment, or drug test. Failure to comply with a preliminary test is an offence if there is no reasonable excuse for refusing it (see section 6(6) of the RTA 1988).

In the case of a suspected drink drive, the vast majority of tests are breath tests. The test is designed to give an indication as to whether the driver is above the prescribed limit of alcohol, and it does this be either giving a “pass/fail” reading or by giving a specific reading. However, the result of such a roadside test only indicates that a driver may be above the prescribed limit and cannot be used to prove that the driver was over the prescribed limit.

If a roadside preliminary test is failed by the driver, then an arrest occurs, and they are conveyed to the police station to undertake a full breath procedure.

Once at the police station and the relevant sign in has occurred, a police officer will escort the driver to a room containing a large machine which will be a breath analyser of some sort. These machines ask questions which the officer will relay to the driver, and which should be answered. Once those questions are completed, two samples of breath must be provided, failure to provide both breath samples, without reasonable excuse, will result in a charge of failing to provide a sample pursuant to section 7 of the RTA 1988.

Once the two breath samples have been provided, the lowest of the two will be used to confirm whether or not the driver is above the prescribed limit, as set out above.

If there is a reason why breath cannot be given (machine fault, acceptable medical reason) then the officer will offer either a blood or urine test undertaken by a medical professional. The driver cannot opt for a specific test, it will be at the officer’s discretion. Again, failure to comply with a blood/urine test without reasonable excuse is an offence and, if the driver is over the prescribed limit upon completion of the test, they will be charged with an offence.

Drunk In Charge

Whilst it is usually clear in the evidence if someone has driven whilst over the prescribed limit, there is a need to distinguish between attempting to drive and being in charge of a vehicle. In the case of Mason v DPP [2009] EWHC 2198 (Admin), the Court held that opening a car door was merely preparatory to the act of driving and not an actual attempt.

A person will remain in charge of their vehicle until they have transferred control to someone else, such as by giving the key to another, or they have moved some distance away from the vehicle whereby it is clear there is no intention to come back into control of the vehicle.

Whether there is an attempt to drive, or being in control of a vehicle, the procedure of preliminary test, then subsequent formal breath test at the police station is the same.


A defence to a charge under section 4 of the RTA 1988 is contained within the same section. It provides:

“(2) It is a defence for a person charged with an offence under subsection (1)(b) above to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.

(3) The court may, in determining whether there was such a likelihood as is mentioned in subsection (2) above, disregard any injury to him and any damage to the vehicle.”

This defence is only available where an individual is charged with being in charge of a vehicle. Such circumstances could include being in the car but not having the keys, or the vehicle being undriveable through a fault.

As to defences to driving whilst above the prescribed limit, there are no statutory defences within the RTA 1988. However, a defence may be possible by asserting that driving did not take place, for example in circumstances where the evidence is such that proving driving would be very difficult. It would be open to a prosecutor to reduce the charge to being in charge of a vehicle if this was the case.

Special Reasons in Drink Driving Cases

A ‘special reason’ is not a defence but can be used as a mitigating factor which could result in the driver avoiding a driving disqualification.  It is important to note that a special reason argument can only be put forward if a guilty plea is entered. If the court accepts that a special reason applies, the court can reduce the driving disqualification or remove it completely. Alternatively, the court could impose penalty points.

‘Special reasons’ are provided for under section 34 of the Road Traffic Offenders Act 1988, which provides:

“(1) Where a person is convicted of an offence involving obligatory disqualification, the court must order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.”

Special reason arguments must only relate to the offence and not to the driver specifically, therefore, circumstances peculiar to the offender cannot constitute special reasons and this was decided in Whittal v Kirby [1946] 2 All ER 552 (CA). As an example, any argument regarding the loss of a job caused by disqualification would fail.

To constitute a special reason, the Court established the following in the case of R v Wickens (1958) 42 Cr App R 436 (CA). A special reason must:

  • be a mitigating or extenuating circumstance;
  • not amount in law to a defence to the charge;
  • be directly connected with the commission of the offence;
  • be one which the court ought properly to take into consideration when imposing sentence.

The most common examples of ‘special reasons’ include:

  • Driving in an emergency – The driver is required to satisfy the court, on the balance of probabilities, that the circumstances were a genuine and real emergency. The court will consider what a ‘reasonable and sober’ person would have done in the driver’s circumstances.
  • Driving a short distance – The court will consider the distance driven, as well as:
    • The manner in which the vehicle was driven;
    • Intended distance;
    • How far was actual driven;
    • Road, traffic and weather conditions;
    • Risk to other road users; and
    • Reasons for driving.
  • Spiked drinks – The driver will need to establish what their blood alcohol concentration would have been had they not consumed the additional alcohol. This often requires expert evidence. Alternatively, they may wish to call witnesses, or even the person who spiked them, who can provide evidence that the drinks consumed were spiked (whether maliciously or innocently).
  • Reflux – When reflux occurs and alcohol is present in the stomach, it can introduce alcohol into the upper-respiratory tract and mouth. Arguing reflux as a special reason could raise inaccuracies in the evidence. Given the medical complexities of such an argument, expert evidence would need to be obtained to assist.

Possible Sentences for Drink Driving

In relation to driving/attempting to drive whilst above the prescribed limit, where there are no special reasons, the sentencing guidelines provide the following sentences depending on the level of alcohol in the driver’s body:

drink driving sentencing guidelines

As can be seen, the lowest bracket, which is just over the prescribed limit, attracts a fine only. The more alcohol within the body at the time of breath test, equates to a harsher punishment. Therefore, depending on the alcohol concentration within the body, a sentence can range from a fine, to a community order (with the likelihood of unpaid work attached), to custody for the most serious offenders.

In addition to this punishment, there is a mandatory driving disqualification with this offence beginning at 12 months. If the offender has had a disqualification for the same or other alcohol related offence within the last 10 years, then the minimum disqualification changes to 36 months.

Possible Sentences for Drunk in Charge

As for the sentence for being in charge of a vehicle whilst above the prescribed limit, this is seen as a less serious offence and that is reflected in the sentencing powers of the Court. The sentencing guidelines are as follows:

drunk in charge sentencing guidelines

As can be seen in the above table, the lowest concentration of alcohol attracts a fine, with the highest sentence being custody.

In addition, unless the offence is the most serious, the likelihood of receiving points is high, thus avoiding a disqualification. It must be kept in mind that 10 points puts a driver very close to the totting provisions and if points are already on their driving licence, then 10 points will inevitably lead to a totting disqualification of up to 6 months.

Drink Drive Course

Finally, in circumstances where a driver is convicted of the above offences and receives a disqualification, they can ask the Court to offer a drink drive course. The course is educational and deals with the dangers of driving whilst drunk. If this course is completed within the requisite time period, then a disqualification can be reduced by 25%.

If you find yourself facing a charge of driving/attempting to drive whilst over the prescribed limit or that of in charge of a vehicle whilst over the prescribed limit, Kang & Co have specialist lawyers on hand to advise and represent you throughout the entire Court process. 

Do you require legal advice &/or representation?

If you are facing a driving offence prosecution and require expert legal representation at Court, call our lawyers on 0345 222 9955 or complete our Contact Form.

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