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Drink Driving Defences

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If you are caught for drink driving all is not lost. There are a number of defences available to you that range from a simple dispute as to the primary facts of the case to technical defences over procedure and equipment used by the police when bring the prosecution against you.

It needs to be stated that this stage that we are expert solicitors in the field of drink driving cases. In fact all we do is road traffic law.

Carl Millar is a specialist road traffic solicitor and the principal of Millars Solicitors. Carl has specialised in road traffic law and drink driving cases since 2005 and is a member of The Society of Motoring Lawyers.

If you have been arrested for drink driving you need the help of specialist drink driving solicitor and you can call Carl today on 0800 999 5535, or in case of emergencies he can be contacted outside office hours on 07990 064 995. If you would prefer to send a confidential email you can do so by clicking here.

Convicted Of Drink Driving – What It Can Mean To You.

Being convicted for drink driving will have far reaching effects. Your driving licence is not just for convenience but has a direct impact in how you live your daily life. Not only may your job be reliant on your driving licence but there is the primary issue of just getting to and from your place work. Many employers now make having a driving licence licence as part of a person’s employment contract, so losing your driving licence through drink driving may also mean losing your job.

On a personal note your driving licence is also vital for more domestic matters, such as driving to and from the supermarket, visiting relatives and taking your children to school.

Although you may not suffer all the possible effects of losing your driving licence, just a handful of these can cause significant problems. There will also be an increase in costs and hassle when you have to take taxis, use public transport or rely upon the good will of family and friends for just getting around.

The law relating to drink driving is complicated. There are many technical issues around it and at first blush it seems like a complete legal minefield; and it is.

Getting advice and representation from a specialist drink driving solicitor can mean the difference between being disqualified from driving and not. Baring in mind that the starting sentence for a drink driving case is disqualification from driving between 12 and 36 months along with a substantial fine and court costs, it really pays to speak to an expert in the field.

Drink Driving Defences

In an effort to give you some help at the outset we thought it best to provide a brief guide to the available defences to drink driving. If you need any help for a drink driving case and would like to speak to a solicitor please call Millars Solicitors on 0800 999 5535 or if it is an emergency outside of office hours you can call on 07990 064 995. If you would prefer to send a confidential email you can do so by clicking here.


A factual defence is where you dispute the primary facts of the drink driving case brought against you. This can be as simple as you disputing that you were in fact the driver of the vehicle which was stopped at the time. It may be the case that someone else have given your details as their’s when they were breathalysed and arrested.

Furthermore, it may be the case that you were not intending to drive at the time that you were breathalysed. Also it could be that the vehicle you were driving was not mechanically propelled or the alleged offence of drink driving took place on private land rather then a road or other public place.

Another factual defence that can be successfully argued for drink driving is that of necessity or duress of circumstances. Understandably the law and the courts are very strict on this defence and apply a test to assess if the defence is available in the case. The test is an objective one and you would need to show that at the time of the drink driving offence you were;

“… acting reasonably and proportionately in order to avoid a threat of death or serious injury.” R v Martin [1989].


There are some drink driving case where there maybe a delay between a person driving a car and being breathalysed for drink driving or indeed another evidential sample being taken such as blood or urine.

During this delay and for whatever reason the person in question may have had a drink in between stopping driving and the evidential sample being taken. In taking this drink that person may well put themselves over the prescribed drinking limit when in reality, at the time when they were driving they would have been under the limit.

Albeit a right and proper defence to drink driving this type of case needs supporting expert medical evidence to ensure that it is presented in the strongest possible way.

The expert medical evidence is there to provide what is known as a back calculation. This back calculation takes into account what has been drunk by the driver since they were driving and the amount of alcohol in their system at the time they give their evidential sample. This is all done in an effort to show what alcohol, if any was present at time they were driving the vehicle.

If, through the back calculation, it can be shown that at the time of driving you were not over the prescribed limit then you will be found not guilt of drink driving.


The police and prosecution need to fulfil their requirements with regards to the procedures of bringing their case against you. If they have failed to adhere to those procedures then this may result in you being acquitted of the offence of drink driving.

These are not mere loopholes in the law but are fundamental to the English legal system ensures that we are all dealt with fairly and that no miscarriages of justice and wrongful convictions occur.

The types of procedures that need to be examined are:

  • Statutory Warning – Before the police can take an evidential sample from you for the purposes of a drink driving case, they must warn you that a failure to provide such a specimen can constitute an offence for which you may be persecuted. This is termed as the “Statutory Warning” and if it is not given then you are entitled to be acquitted of the offence of drink driving. Should it be the case that you dispute the Statutory Warning was given then the CCTV footage from the police station can be sought to give support to your defence.
  • Taking Of Urine Samples – When urine samples are taken, two of these samples must be given within an hour of each other. Failure to do so, or if there is not enough time or if a single sample is split into two, then this evidence becomes inadmissible and you will be acquitted of the offence of drink driving.
  • Failure To Offer A Sample Of Blood Or Urine – When blood or urine specimens are taken as part of the drink driving case, it is imperative that the police offer you samples of those specimens so that you can have them independently tested if you so wish. If the police do not offer you these samples, or upon request they do not provide them a legal challenge maybe made following which you maybe acquitted of the offence of drink driving.
  • Continuity Of Blood And Urine Specimens – Where the prosecution rely upon blood and urine specimens in a drink driving case the defence can request evidence of continuity to confirm the identity of the person from whom the samples were taken and who has had access to these samples for testing and examination. If the prosecution are unable to prove this continuity it may be lead to an acquittal for a drink driving case.


In proving a drink driving case the police rely upon certain equipment that has been used in taking and testing evidential samples from the driver.

There will normally be two samples of breath in evidence, one taken at the road side and one at the police station following arrest. The sample taken at the police station is more accurate than the one taken at the roadside and can only be done on equipment approved by the Secretary of State. The current equipment used is the CAMIC Datamaster, the Intoximeter EC/IR and the Lon Intoxilyser 6000UK.

If, as part of your case the amount of alcohol recorded by the equipment is higher than expected then you have the right to have the equipment investigated in order to challenge its accuracy and the evidence produced – Cracknell v. Willis [1988].

These investigations and challenges to the equipment led evidence can include whether the machine was used properly, if it has been calibrated and maintained correctly and whether the machine has been modified so that it cannot be deemed as being approved by the Secretary of State.

Drink Driving Related Offences & Their Defences


If, during the currency of the drink driving procedure, you are required to provide an evidential specimen and do not then you can be charged with the offence of “failing to provide a specimen”. However, there is a provision to this offence, that of “without reasonable excuse”. If a reasonable excuse is put forward in your defence then you may be acquitted of the offence.

A reasonable excuse has been found to be where a person is physically or mentally unable to provide the specimen required. Please find below some examples.

Failing To Provide A Specimen of Breath

The majority of defences raised for failing to provide a specimen of breath are with regard to using the equipment at the police station. In these circumstances the issues relate to the accused not being able to provide a proper flow of air for the machine to give an effective reading. This will then be deemed by the police as a failure.

If however, the accused can raise a proper reasonable excuse and that excuse is accepted then it should result in an acquittal from the offence.

Such examples of defences based on a reasonable excuse include asthma, chest infection, anxiety and panic attacks, long term smoker, and small lung capacity.

In order to put forward a strong defence for this type of case, supporting medical evidence would need to be placed before the court in support of the reasonable excuse claimed.

Specimens Of Blood Or Urine

Similar to Failing To Provide A Specimen Of Breath is a Failure To Provide A Specimen Of Blood Or Urine. Again there is the provision of “reasonable excuse” and such defences have been put forward with those reasonable excuses being a fear or phobia of needles and prostate gland problems.

With reasonable excuse defences where a medical issue is raised, an expert medical report will be required to put the strongest possible defence forward.


For this offence a right and proper defence exists where the person in the vehicle had no intention to drive. For example it may be the case that a person had too much to drink on order to drive but was too far away to get home. That person may have decided to sleep in the vehicle until they were again fit to drive.

In raising this defence to is imperative to show that the person would have had no intention to drive the vehicle and a reliance on expert medical evidence to show the time at which the person would next have been under the legal drink deriving limit.


Carl Millar is a specialist motoring law solicitor and principal of Millars Solicitors.

Carl is highly recognised as one of the Country’s leading motoring lawyers and has worked for many high profile clients.

Carl can be contacted through Driving Offence defence by calling 0800 999 5535 or 07855 806119 for 24/7 out of hours advice. You can also send a confidential email by clicking here.

Call An Expert Road Traffic Solicitor

0800 999 5535
24 hour emergency callout 07855 806119