We often encounter clients who have been WRONGLY informed by police as they leave the police station that if they are lucky they will get penalty points for a drink or drug driving charge. It would be fair to accept this kind of well-meaning reassurances from seeming experts in the criminal justice system. However, police officers are not experts in sentencing laws and it is always best to check whatever you were told with solicitors like the Geoffrey Miller Team.
You can use one of our many free calculators or read the article below or if you are keen to secure representation for a court hearing, take advantage of our free triage service. If you just want sentencing advice, then our paid consultation service may be worth considering.
Can You Get Penalty Points for drink or drug driving?
The mandatory minimum sentence for a first time drink or drug driving offence is a 12 month ban. There are, however, some specific situations when a court is permitted to consider imposing penalty points rather than a disqualification from driving. First an overview of the various offences where the mandatory ban applies:
Driving with excess alcohol
Driving with excess alcohol or drink driving is governed by section 5(1)(a) of the Road Traffic Act 1988. The police usually measure alcohol in someone’s breath, on the roadside, using a breathalyser. If the measure of alcohol is above the prescribed limit of 35µg, they will be taken to the police station for further evidential breath tests which if found over the legal limit will result in a charge for drink driving.
The evidential breath test is the most common way for the police to gather evidence of the alcohol level but they can also require a blood or urine sample in specific circumstances.
If convicted of drink driving, the court must impose a minimum mandatory disqualification from driving of 12 months plus a fine or a community order. In the most serious cases of drink or drug driving, the court may even impose a prison sentence.
Driving whilst unfit through alcohol
Driving whilst unfit through alcohol is governed by section 4(1) of the Road Traffic Act 1988. In the case of an unfit charge, the level of alcohol in someone’s breath does not need to exceed the prescribed limit. If the police suspect that someone is simply impaired from alcohol and therefore unfit to drive, they can be arrested and prosecuted. If convicted of driving whilst unfit through alcohol, the penalty is the same as with drink driving.
Drunk in charge of a vehicle
Being drunk in charge of a vehicle is governed by section 5(1)(b) of the Road Traffic Act 1988. The legal limit of alcohol is the same as with drink driving but if the charge is being drunk in charge of a vehicle rather than driving the vehicle, the court has more leeway and can choose to impose either a disqualification from driving (with no mandatory minimum period) or the imposition of 10 penalty points, and a fine, community order or in serious cases, prison. It is at the court’s discretion whether someone is sentenced to a driving disqualification or 10 penalty points.
With drink driving, it does not matter what the impact of a conviction will mean to you or others; the court’s hands are tied and they MUST impose a minimum 12 month ban.
With drunk in charge, if the court is presented with compelling evidence of how the various penalty options could negatively affect you, we are in with a fighting chance of keeping your driving licence intact. Early instructions and preparation will be super important if this is your end goal.
Drug driving
Driving or attempting to drive with a specified drug above the legal limit is governed by section 5a of The Road Traffic Act 1988. Unlike drink driving, the law on drug driving takes a different approach with zero tolerance limits for illegal drugs being detected. These drugs include; benzoylecgonine (BZE), cocaine, Delta-9-tetrahydrocannibinol (cannabis), ketamine, lysergic acid diethylamide (LSD), methylamphetamine, MDMA and 6-monoacetylmorphine (heroin).
Similarly to drink driving, if charged and convicted of drug driving, the court has no choice but to impose a minimum 12 month driving disqualification, and a fine or community order. In the most serious cases, the court could send someone convicted of drug driving to prison. The length of a disqualification depends on a number of circumstances, for example, how impaired a driver was and how many drugs were detected in the blood analysis. However, the quantity of drug found in someone’s blood is not taken into consideration due to the zero tolerance approach of the law.
We are specialist drug driving solicitors and may be able to help you.
However, all hope is not lost. The court may not disqualify you from driving if they find a “special reason”. More information on special reasons below.
Failing to provide and specimen
Failing to provide a specimen is governed by section 7(6) of the Road Traffic Act 1988. You may be charged and prosecuted for this offence if you fail to provide a specimen of breath, blood or urine, without a “reasonable excuse”, when requested to do so by the police. If you are charged with failing to provide a specimen, the court must impose a mandatory driving disqualification of at least 12 months, a fine or a community order.
However, if the court can be persuaded that you were in charge of a vehicle rather than driving before failing to provide the specimen, the sentencing guidelines for the courts change and become a lot more lenient. You may be able to avoid a driving disqualification altogether. Depending on the circumstances, the court may decide to impose 10 points and a fine or a community order, rather than a disqualification.
Plea Bargain
In many drink driving cases, where we can identify weaknesses in the prosecution case, we may be able to negotiate a lesser charge of being in charge of a vehicle whilst over the limit or having failed to provide a specimen and this could in turn lead to a palatable outcome of you receiving points.
What are special reasons?
In some cases, if facing the full “driving” offence, a driving disqualification could be avoided altogether, and the court may impose no penalty or discretionary penalty points if the court finds that there are ‘special reasons’.
Special reasons can include the following:
- Driving a short distance.
- Having a drink spiked or laced.
- Driving in an emergency.
- Acid reflux.
If the court finds there are special reasons, the court can reduce the mandatory driving disqualification, or impose penalty points instead. It is important to note that a special reason is not a defence. Someone cannot simply say their drink was spiked, or that they only drove a couple of meters. Evidence must be gathered and presented to the court.
None of the above special reasons apply to a fail to provide charge. However, there is a possibility that special reasons can apply to a failure to provide charge if evidence is presented that there was no likelihood that the driver would have driven that vehicle as established in the case of McCormick and Hitchins [1988] RTR 182. The Court held in this case that where a defendant had no intention of driving a vehicle and he could not have been a danger on the road, there were special reasons for not endorsing the defendant’s licence with the obligatory 10 penalty points in respect of a charge under what is now s.7(6) of the 1988 Act when not driving or attempting to drive. The courts still have a discretion under s. 44(2) of the 1988 Offenders Act, as to whether or not to order an endorsement. In a case where the defendant has been found (or it has been conceded) not to have been driving or attempting to drive at the material time, the fact, if found, that he had no intention to drive and could not have been a danger on the road, is capable of being a special reason for not endorsing, but notwithstanding such a finding, endorsement is still a matter in the discretion of the Justices. It is still for them to decide whether to choose to exercise their discretion in the defendant’s favour.
So, unfortunately, unless some very narrow circumstances apply to the charge you face, any suggestion that you will get penalty points if you plead guilty to a drink or drug driving or fail to provide charge is frankly, wrong. There are other strategies that can be applied to avoid any penalty at all so get in touch if you wish to explore these with our help.
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Geoffrey Miller Solicitors are specialists defending drivers nationwide for all types of driving offences. Call our team of expert driving offence solicitors for some free initial advice.
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