Van McKellar | Partner

Under the Influence

Driving under the influence is governed by S.5-S.7 of the Road Traffic Act 1988 and a driver does not actually need to be driving the vehicle or be under the influence of drink or drugs to be guilty of an offence. A driver who is under the influence of alcohol or drugs could be guilty of an offence if they are merely attempting to drive or they are in charge of a vehicle. Whilst a driver who refuses to provide a specimen of breathe to the police if they have a reasonable suspicion that they has been driving, attempting to drive or in charge of a vehicle under the influence of alcohol or drugs could also be convicted of an offence even if they had not consumed any alcohol or drugs.

The consequences of being caught driving whilst under the influence of drink or drugs can be very serious, and often go beyond a simple court-imposed sentence. It is common for those charged drink driving to lose their jobs and drivers risk having their car being seized by the court.

Drink driving is normally prosecuted by Section 5(1)(a) of the Road Traffic Act 1988 and is punished by a minimum 12 month driving ban, a potential 6 month prison sentence and/or a fine of up to £5,000. Section 5(1)(b) of the Road Traffic Act is an offence of being in charge of a vehicle while over the prescribed limit that carries a minimum of 10 penalty points or discretionary disqualification, a potential 3 month prison sentence and/or a fine of up to £2,500.

A first offence for drink driving is punishable with a minimum 12 month driving ban however if you have a subsequent conviction within 10 years the minimum period would be 3 years.

The statutory provisions in relation to an accused’s right to provide an alternative specimen of blood or urine in borderline cases have also been abolished and these no longer apply to drink driving prosecutions.

There are defences available for charges under Section 5(1)(a) or (b) including post-incident drinking or no likelihood of driving but they will require to be presented in the correct format and would normally involve the presentation of a toxicology report.

In respect of failing to cooperate with the provision of a sample to the police there is a statutory defence of having a reasonable excuse. A reasonable excuse has been narrowly interpreted by the courts and it is important to consult a solicitor to establish if this defence would be open to you.

If you are to plead guilty to a drink driving offence then it is important that your plea is presented appropriately. The court is bound to consider a discount on any sentence it imposes up to the minimum sentence based on the timing of your plea. The discount can be significant when dealing with drink drive cases with higher readings as the percentage reduction, up to one-third, can really start to make a difference.

It is also open to the Court to reduce the length of disqualification below the minimum period by granting a referral to a Drink Driver Rehabilitation Scheme. This has to be raised at the point of sentence and the associated reduction in sentence, between three months and one quarter of the total period. It is for the accused to ensure the fee is paid and the course completed within the requisite timeframe before the discount is applied.

As well as the punishments outlined above a court has the power to seize a vehicle used in the commission of the offence in certain circumstance. It is important that if you are to plead guilty that you are aware of the circumstances when the procurator fiscal can apply to have the car seized and what qualifying circumstances the court will require to consider.

The complexity surrounding any charge of drink driving makes it important that you seek legal advice immediately and that any defence or plea in mitigation is presented professionally and appropriately.

Contact Jackson Boyd’s Personal Injury Lawyers in Glasgow & Edinburgh

To discuss your claim with us, contact Jackson Boyd today. You are always guaranteed to speak to someone with knowledge and understanding of what you are going through, and someone with experience of dealing with cases just like yours.

For a free consultation, please call us on 0333 222 1855 or contact us online.

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