A Guide to Drink Driving Sentencing Guidelines

The consequences of being accused and convicted of a drink driving offence can be severe, with implications for your licence, your finances, and even your freedom in serious cases.

The Criminal Justice System in England and Wales has a detailed framework for dealing with these cases, with drink driving sentencing guidelines that determine the penalties you could receive. The guidelines are designed to make sure the penalties handed out by courts are consistent and understanding them can help you to prepare for possible outcomes if you are caught drink driving and facing a charge.

It may help to know that the sentence you receive is not arbitrary, but is determined by a range of aggravating or mitigating factors that can make the sentence imposed more severe, or lessen its impact. At JMW, our experienced drink driving solicitors provide expert advice and robust representation to achieve the best possible outcome for our clients, including by examining and presenting mitigating factors during sentencing.

In this guide, we explain the relevant offences associated with drink driving, key aspects of the drink driving sentencing guidelines, the potential penalties, the aggravating and mitigating factors that the courts consider, possible defences, and how expert legal representation can make a significant difference.

What Are the Offences if You Are Caught Drink Driving?

The drink driving sentencing guidelines are part of a comprehensive framework issued by the Sentencing Council for England and Wales. Magistrates and judges are required by law to follow these guidelines when deciding on the appropriate sentence for a drink driving offence. The aim is for the punishment to reflect the seriousness of the crime and consider all the relevant circumstances of both the offence and the offender.

The starting point for any sentence is determined by the specific offence and the level of alcohol detected, based on minimums that apply to all offenders irrespective of any other factors. From this starting point, the court will adjust the sentence upwards or downwards based on any aggravating or mitigating factors present in the case.

The guidelines cover all drink driving related offences listed under the Road Traffic Act 1988, which is the primary legislation governing motoring offences. The relevant criminal offences include:

Driving with excess alcohol

This is the most common drink driving offence. It is committed when a person drives or attempts to drive a motor vehicle on a public road or in a public place with an alcohol level above the prescribed legal limit. The prosecution only needs to prove that your alcohol level was over the limit, and not that your driving was impaired.

Driving while unfit through drink

This offence is committed if a person’s ability to drive properly is impaired due to alcohol. It can be prosecuted even if your alcohol level is below the legal limit. Proving this charge often relies on police observations of your driving, your physical appearance, and your performance in a field impairment test. Police may also ask for a breath test or a urine or blood sample in these cases.

Being ‘in charge’ of a vehicle with excess alcohol

You can be found guilty if you are ‘in charge’ of a motor vehicle while over the legal alcohol limit, even if you are not driving it. This could include sitting in the driver's seat with the keys on your person. There is a statutory defence if you can prove there was no likelihood of you driving the vehicle, but this remains a separate offence from drink driving.

Failing to provide a specimen

It is a criminal offence to fail to provide a specimen of breath, blood, or urine for analysis when required to do so by the police without a reasonable excuse. The penalties for this are as severe as those for a high-level drink driving offence, and it is vital to speak to an experienced solicitor if you have refused to provide a specimen and believe you have a reasonable excuse to present to the court.

For other relevant offences, the presence of excess alcohol in your breath, urine or blood sample could act as an aggravating factor. A driver involved in a fatal accident may be charged with death by dangerous driving or careless driving, with their excess alcohol consumption leading to a more serious sentence.

Key Aspects of the Drink Driving Sentencing Guidelines 

What is the minimum sentence?

There is a mandatory minimum driving disqualification for drivers who are found guilty of drink driving (or who enter a guilty plea). If you are found guilty of driving or attempting to drive with excess alcohol in your system, the court must impose a driving ban of at least 12 months as the absolute minimum for a first offence. You may also receive a fine and, in serious cases, a custodial sentence. However, there is no minimum for these, and they are determined based on specific circumstances.

This minimum disqualification increases to at least three years if you have a previous conviction for a relevant drink driving related offence within the preceding 10 years. For repeat offenders, the sentencing guidelines are much stricter, and there are limited statutory defences you can use in these cases to minimise your sentence.

There is also very limited scope for the court to avoid imposing this ban, although in some cases “special reasons” can be successfully argued and reduce penalties. Alternatively, if you are disqualified for 12 months or more, the sentencing court may offer you the chance to attend a drink-drive rehabilitation course following a first offence.

If you successfully complete this course by the required deadline, your driving ban will be reduced. The reduction is typically 25% of the total ban, meaning a 12-month ban can be reduced to nine months. Completing the drink driving rehabilitation course can also lower your insurance premiums once you get your driving licence back. Otherwise, a conviction for drink driving can lead to significantly higher premiums for several years after your sentence has been served.

It is important to know that the decision to offer the course comes at the court's discretion and you should not rely on this happening. At JMW, our drink driving solicitors have a deep understanding of how these sentencing guidelines are applied in practice, which means we can provide you with clear and accurate advice on the potential outcome of your case, and help you to pursue the best available outcome.

What are the other possible penalties?

The drink driving sentencing guidelines outline a range of penalties that can be imposed and the court will consider a range of factors in determining what would be a fair sentence in each case. Penalties can include:

• A driving ban or disqualification: a driving ban is a mandatory penalty for a drink driving conviction. Offences with no aggravating factors have a minimum 12-month ban, but the length of any driving disqualification is determined by your alcohol level and any previous convictions. For very high readings, the disqualification period can be 29 months or longer.
• Fines: the court can impose an unlimited fine for driving with excess alcohol, although the amount you pay is typically means-tested and based on your income.
• Community orders: for more serious drink driving offences, the court may impose a Community Order as an alternative to a custodial sentence. This can include requirements such as:
• Unpaid work (community payback)
• Rehabilitation activity requirements
• Alcohol treatment requirements
• A curfew
• Custodial sentences: the most serious drink driving cases can result in a custodial sentence, and the maximum sentence depends on the specific offence. For driving with excess alcohol, the maximum term of imprisonment is six months. However, causing death by careless driving under the influence carries a maximum sentence of life imprisonment.
• Alcohol monitoring tag: this will perform around-the-clock monitoring of an offender’s sweat to determine whether alcohol has been consumed. If the person drinks and breaches their alcohol abstinence order, they can be returned to court for further sanctions. These might range from a fine, an extension on the length of the order or, in some cases, imprisonment.

Penalty points and the extended driving test: for the lesser offence of being ‘in charge’ of a vehicle while over the limit, the court may impose 10 penalty points on your driving licence instead of a discretionary ban. In some serious cases, or for repeat offenders, the court may have your driving licence overturned. In these cases, you must take an extended driving test before your driving licence can be returned.

The impact of a drink driving conviction extends far beyond the sentence imposed by the court. Beyond the legal penalties, long-term consequences can include:

• A criminal record: a conviction for drink driving will result in a criminal record, which can affect future employment prospects.
• Increased insurance costs: your car insurance premiums will increase significantly.
• Travel restrictions: some countries, including the USA and Canada, may refuse entry to individuals with a criminal record for drink driving.
• Employment issues: a conviction could affect your career, especially if you drive for a living or hold a position of trust.

Maximum sentences for drink driving depend on the specific offence and consider both the offence seriousness and any mitigating or aggravating factors present.

• Driving with excess alcohol: 6 months' imprisonment.
• Being ‘in charge’ of a vehicle with excess alcohol: 3 months' imprisonment.
• Failing to provide a specimen: 6 months' imprisonment.
• Causing death by careless driving under the influence: 5 years imprisonment.
• Causing death by dangerous driving under the influence: life imprisonment.

The prospect of a custodial sentence is often the greatest concern for anyone facing a drink driving charge. While imprisonment is reserved for the most serious cases, the sentencing guidelines clearly identify when a custodial sentence should be considered. The two main elements that push a drink driving offence towards the threshold for a prison sentence are a very high alcohol level and the presence of aggravating factors.

If a custodial sentence is imposed, it may be suspended. A suspended sentence means you will not go to prison immediately, but you will be subject to conditions and a period of post sentence supervision. Breaching these conditions will likely lead to the activation of the prison sentence. The team at JMW can advise you on likely sentences if you are convicted and present mitigating circumstances to the court to ensure your sentence is not overly harsh or unfair.

How Do Aggravating and Mitigating Factors Affect Sentencing?

Once the court has established a minimum sentence, it will consider any aggravating and mitigating factors that could affect the penalties it imposes. Aggravating factors are elements of the offence or the offender's background that increase its seriousness, potentially leading to a harsher sentence. The court will always look for evidence of aggravating factors. These may include:

• Any relevant previous convictions, particularly for similar motoring offences. This also includes committing the offence while on bail or under post sentence supervision.
• An offence committed in a high-risk location, such as near a school or a busy pedestrian area.
• Carrying passengers, especially children.
• Evidence of an unacceptable standard of driving, including careless driving, dangerous driving, or excessive speed.
• Involvement in an accident
• Driving in a capacity as a professional driver (such as a taxi driver or HGV operator) at the time of the offence.
• Failure to cooperate or comply with police procedures at the police station or roadside.

Mitigating factors are circumstances that can reduce the offender's culpability or reflect personal mitigation, potentially leading to a more lenient sentence. An experienced drink driving solicitor will examine and present as many mitigating circumstances as possible to make sure the court understands the full picture of the offence and issues a fair sentence. Examples of mitigating factors are:

• No previous convictions, including a clean criminal record and driving licence.
• Driving due to a genuine emergency.
• Driving for only a very short distance.
• You were unaware that you were under the influence - for example, if there is credible evidence that your drink was spiked without your knowledge.
• Showing genuine remorse for the offending behaviour.
• Making an early guilty plea rather than challenging the offence in court.
• Personal circumstances such as a serious medical condition, a mental disorder, or being the sole or primary carer for dependent relatives. A pre-sentence report may be ordered by the court to investigate these issues further.

Our team will carefully examine your case to identify all relevant mitigating factors and present them persuasively to the court to ensure you receive the most appropriate sentence. In some cases, we may also advise you to enter an early guilty plea, which can result in a reduction of up to one-third off your sentence. There are limited statutory defences for drink driving offences and if we do not believe you will be able to successfully defend your actions, we will offer practical guidance on the best approach.

What Are the Defences to a Drink Driving Charge?

While the penalties are serious, being charged with drink driving does not automatically mean you will be convicted. There are several potential defences that can be raised, depending on your situation.

• Procedural errors can be a defence, as the police must follow strict procedures when conducting a breath test and requesting a blood or urine sample. Any significant error in this process or gaps in the chain of evidence could provide grounds for the case to be dismissed.
• The 'hip flask' defence applies if you consumed alcohol after driving but before providing a breath, blood or urine test. The burden is on you to prove, on the balance of probabilities, that your alcohol level would not have been over the legal limit at the time you were driving. We can instruct independent experts to assess this and provide evidence that supports your version of events.
• A 'no likelihood of driving' defence applies only to the offence of being ‘in charge’ of a motor vehicle. You can be acquitted if you can prove that you had no intention of driving the vehicle whilst over the legal alcohol limit.
• Special reasons are not a defence to the charge itself but an argument for the court not to impose the mandatory driving ban. You must show that there are special reasons connected to the commission of the offence, such as driving in a genuine emergency or having your drinks spiked.

The team at JMW will take the time to discuss your circumstances and advise you of any defences you may be able to rely upon. From the moment you contact us, we will provide straightforward advice on your legal position and the best strategy for your case to enable you to make fully informed decisions at every stage.