Drink Driving Breath Test
Drink driving carries a minimum 12 month disqualification and a financial penalty. In more serious cases, the court can impose a community order and even a custodial sentence (prison). You may have a defence without knowing. All our initial advice is completely free of charge.
We can help you with:
- Finding fault with police procedure
- Challenging device calibration
- Identifying defences
- What to do next
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Breath alcohol tests
This offence can be found at Section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 of the Road Traffic Offenders Act 1988.
How we win drink driving cases
Testing the evidence
A positive breath reading will not make you guilty of drink driving. It’s important to consider the case as a whole and check the evidence against you. You may be surprised to find that it doesn’t exist.
Don’t worry if you admitted the offence or even pleaded ‘guilty’ at the police station. You can still enter a not-guilty plea in court. Pleading not guilty keeps your options open and allows you to review the evidence against you.
The police and the courts like to ‘process’ drink driving prosecutions very quickly. This can lead to motorists feeling pressured into making hasty decisions, often without full knowledge of the options available.
The team at M.A.J. Law have specialist knowledge of drink driving case law and statute – often winning cases by advancing complex legal arguments and unique defence strategies. We also work closely with independent expert witnesses, toxicologists and forensic scientists who can provide evidence to strengthen your defence.
Do you have a defence to drink driving?
You may be wondering whether you have a defence to drink driving. You've probably heard of 'technicalities' and 'legal loopholes'. In reality, it's much more simple than that. M.A.J Law would estimate that over 70% of all those who contact us have a defence without realising. The list below sets out some defences that can be used even if you're well over the legal limit.
Consider the following;
- Do you have a statutory or common-law defence?
Don’t worry if you’re not sure. M.A.J. Law can talk you through your options and identify any available defence immediately. All our initial advice is free of charge. We can tell you whether you have a defence within 10 minutes of talking to you.
- Is the evidence against you strong enough to prove the offence beyond all reasonable doubt?
Due to funding shortages and administration problems, the CPS rely on people pleading guilty at the first court hearing. By pleading not guilty, you force the CPS to provide the evidence, usually within 28 days. Most prosecution agencies are over-worked and under-funded. For this reason, they regularly struggle to comply with court deadlines. If the evidence isn't served in time, it could be excluded. Read our case studies to learn more.
- Did the officer lawfully obtain two specimens of breath from you whilst completing the MGDDA document?
We specialise in finding fault with the evidence against you. If mistakes were made, we'll find them. This could secure your acquittal. Click here to view a copy of the MGDDA document.
- Was the procedural officer (and device operator) correctly trained and authorised to conduct the evidential breath test procedure?
As a cost-cutting measure, many officers are not trained to conduct breath test procedures and cannot produce a verified training certificate. Would you be less willing to accept the result if you knew the officer was not trained?
- Was the Evidential Breath Machine correctly calibrated and serviced inline with the strict requirements implemented when the device was type-approved?
The breath testing machine that produced your readings was probably over 15 years old. This outdated technology needs servicing regularly (including monthly calibration checks). Our team of independent experts will consider all aspects of the device’s functionality. Breath testing machines are discussed in more detail below.
- If the evidence is not provided by the CPS, before the trial, you should not be convicted.
So far in 2020, over 85% of our cases that proceeded to trial had evidence missing. This would likely lead to the case against you collapsing.
Drink Driving Defences
It wouldn't be possible to discuss all drink driving defences on a single page. We have therefore summarised the main defences below.
We would strongly advise that you contact our team of specialist solicitors who will be able to outline your options and discuss a defence strategy suitable for your circumstances. We are confident that following a phone call to our team, you’ll have complete confidence.
1. Finding fault with the police procedure
Your breath alcohol concentration will reduce as you eliminate and ‘burn off’ the alcohol that you have consumed, the speed at which you do so is known as your ‘elimination rate’.
Alcohol can be eliminated at such a rate that there’s a risk that you will fall below the prescribed limit by the time you are placed on the evidential breath test machine (EBM) at the police station, even if your roadside reading was high.
The difficulty the police face is that the roadside reading is non-evidential, meaning it can’t be used as evidence in court. If you fail at the roadside, the police will want to get you to the station as quickly as possible, in order to get the highest breath reading from you on the evidential device.
This often leads to police officers cutting corners and skipping the important procedures that should be completed before you’re placed onto the EBM. If you felt like you were being rushed through the process, you may not recall the MGDDA procedure.
The MGDDA Procedure
Police officers are given drink driving pro-formas called MGDDA documents. These ‘dummy guides’ were introduced to help prevent the police breaching procedure and obtaining unreliable and unlawful specimens of breath. That was the idea, at least! In theory, they are idiot proof. In reality, mistakes are made.
The MGDDA document contains in excess of 20 questions the officer has to ask you, as well as a number of legal requirements. This booklet should be completed with you before the officer places you onto the evidential breath test machine. If you can’t recall it, there’s a good chance it wasn’t completed.
N.B. Don’t mistake the MGDDA procedure with the ‘checking-in’ procedure completed at the custody desk.
As above, it doesn’t take an expert to know that the level of alcohol in your body will reduce overtime. If the officer were to spend 30 minutes asking questions and ticking boxes, there’s a very good chance that the level of alcohol remaining in your body would be substantially lower than when you first arrived at the police station, you may even be below the prescribed limit. An outcome any officer will want to avoid. This may force the officer to cut corners along the way.
What you need to know
- The legal limit is 35 microgrammes of alcohol per 100 millilitres of breath (µg%).
- You do not have to provide a breath sample if you do not want to. The officer should have given you the option.
- Evidential Breath Machines, even when calibrated, can over-estimate a breath reading. Send us your results.
- Depending on your breath reading, you could be branded a ‘High Risk Offender’. This means that you will forced to take a DVLA medical before your licence is returned.
- Drink driving can carry a custodial sentence (prison), even if they’re a first time offender.
- If you plead not guilty to drink driving but are later found guilty, the length of your ban will not increase (Magistrates' Court Sentencing Council).
- The minimum disqualification period is 12 months (based on a breath reading of 40µg%). This can be reduced to 9 months with the Drink Driving Rehabilitation Course. The higher the breath reading, the longer the disqualification.
- A previous motoring conviction within 10 years could increase the overall disqualification to three years.
M.A.J. Law find fault with drink driving breath procedures in over 85% of cases, usually leading to a complete acquittal.
2. Device Calibration
M.A.J. Law has expert knowledge of Evidential Breath Testing Devices currently in use in the UK. This means that we can advise you on the merits of challenging the accuracy of the EBM without having to consult an independent expert (thus saving you time and money).
If, following our initial review, you decide to instruct one of our independent experts, we can then obtain a full expert report focusing on the particular issue. Most of our experts have arrangements in place with UK laboratories and machine manufacturers, meaning we can gain exclusive access to important records without having to go through the CPS’s lengthy disclosure process.
There are three EBM’s currently in use in England and Wales, all of which are type-approved by the Secretary of State. These are:
- The Lion Intoxilyser 6000 UK
- The Camic Datamaster
- The Intox EC/IR.
By law, you should have been provided with a copy of the printout produced by the machine at the end of the procedure (it looks very similar to a till receipt). This printout contains very limited data, but it can be helpful. If you are not provided with a copy, there is no evidence of the machine’s calibration (thus the court should not convict you).
3. Prosecution Disclosure
The CPS are responsible for prosecuting all criminal offences in England and Wales. They represent the state and will try to prove that you are guilty of drink driving. The problem is, the CPS operate on a shoe string budget and, just like all Government Agencies, they have to prioritise where they focus resources.
In nearly all drink driving cases defended so far in 2020, the CPS have failed to serve the correct evidence in time. We can only assume that this is because drink driving cases aren't 'high priority' cases; the CPS have better things to be doing. If the evidence against you is not served in time, our team of specialist solicitors can use statutory disclosure rules to win your drink driving case. Remember that every drink driving case we have ever won starts with a breath result above the legal limit.
4. Civilian Officers
We’re all aware of the struggle faced by front-line services as a result of increased budget cuts. As a cost-cutting measure, a number of police forces now employ civilian staff members to carry out day-to-day work within the police station (e.g. cleaning and preparing meals for detainees).
In an attempt to get ‘more for its money’, the police began using civilian officers to conduct breath test procedures, rather than using the ‘bobby on the beat’ (whose time is more expensive).
The difficulty here, however, is that a civilian member of staff is not a constable and, by law, cannot give the important legal requirements detailed in the MGDDA document. If the police were properly trained to realise this fact, it wouldn't happen. But most police officers receive very little training or guidance on how to conduct evidential breath test procedures. A small error can quickly become a big problem for the CPS. In short, if the civilian gave you the warning, you cannot be convicted.
Indeed, you may recall that the procedure was, in fact, conducted by one of the officers who had arrested you or even the custody sergeant. If this is the case, it does not mean the the procedure was correct. Lack of formal training, coupled with the pressures placed on individual officers, results in them failing to follow the most basic rules.
5. Challenging the Evidential Breath Testing Machine
- Software, Components and Type Approval
Any modifications, replacement components or software upgrades could affect the device’s Type Approval. Often, due to lack of knowledge and training, police forces don’t realise that they are required to obtain a new approval order in these circumstances, thus rendering the device 'non-evidential' (meaning the breath results can't be used in court).
- Calibration, Service and Maintenance
All the devices should self-calibrate at the beginning and end of the cycle. They do this by running a compressed mixture of alcohol vapour supplied by the ‘gas simulator’ to the machine. The vapour is set at the legal limit of 35µg%. Due to the complexities surrounding the functionality of an evidential device, they can very quickly go wrong, particularly if not correctly maintained. As specialist defence solicitors, we would usually obtain copies of the calibration records, service records and maintenance logs. The CPS may drop your case rather than release these records (usually if there’s fault with this evidence).
- Interfering Substances, Mouth Alcohol and Organic Contaminants
The second generation of EBMs currently used in the UK were first introduced in 1998. As such, the technology used is unpredictable and outdated (using infra-red light or fuel cells). Consequently, a device may fail to detect any substance that could falsely inflate your breath reading (such as medication, mouth alcohol, reflux etc.). This could exist if there is a disparity between the two breath readings provided on the EBM.
- Timings, Operational Sequence and Documentary Evidence
The printout provided by the police should illustrate the device’s operational sequence. For example, the Lion Intoxilyzer gives the subject 3 minutes in which to provide his first specimen, and a further 3 minutes to provide his second. All the associated timings should be detailed on the printout.
If you are charged with drink driving, a motoring defence solicitor may use one of a number of defences in court. A few examples include ‘the hip flask defence’, arguing post driving consumption, and technical defences. To read more about these defences, as well as a number of others, please see the ‘Drink Driving Defences’ document on the Resources page.
Choosing a Drink Driving Solicitor
Choosing the right solicitor for your drink driving case is vitally important. There is a genuine and honest belief amongst our team that we are the best motoring defence practice in the UK (and our clients agree!). We challenge all cases with a positive attitude and will never ‘throw in the towel’. It’s this mindset that has allowed us to quickly become one of the leading drink driving defence practices in the UK.
We aim to make choosing a solicitor easy. Consider the following points:
- Make sure you speak to the solicitor who will be handling your case.
- Check there is no charge for initial advice.
- Can you call your solicitor outside office hours? Nasty letters from the police or the court have a habit of arriving on a Saturday morning. It’s a long time to spend worrying if you have to wait until Monday morning to speak to your solicitor.
- Is your solicitor a specialist on motoring law and, in particular, drink & drug driving law?
- Does your solicitor have a proven track record? Ask to see testimonials from other clients.
- Does your solicitor have established contacts with expert witnesses and specialist senior barristers?
Drink Driving Solicitor Fees
Here at M.A.J. Law, we are completely transparent about our fixed fee pricing structure, as well as any potential additional costs that might be incurred throughout your case, so you can ask us about your drink driving case cost with confidence.
we promise that our quoted fixed fees will not change, even if your case becomes more complicated than originally anticipated. Over the years, our team of specialist solicitors have built long-lasting, honest and trustworthy relationships with each and every client. This has helped us become one of the leading drink driving defence solicitors in the UK.
M.A.J. Law also employs a number of Cost Recovery Administrators who will process your Defence Costs Order immediately (following a case victory). This allows you to claim back your costs from the Central Funds Office of the Government (subject to assessment).
Drink Driving Charges: Sentencing Guidelines
Below are the Magistrates’ Court Sentencing Guidelines. These are used by courts across England and Wales when sentencing for a drink driving offence. You can also use our Drink Driving Penalty Calculator to get an indication of what your sentence might be.
Drink Driving Breath - SENTENCE
|Breath alcohol level||Starting point||Disqualification||Disqualification (2nd offence)|
|36 – 59||Band C fine||12 – 16 months||36 - 40 months|
|60 – 89||Band C fine||17 – 22 months||36 - 46 months|
|90 – 119||Community Service||23 – 28 months||36 - 52 months|
|120 – 150>||12 weeks custody||29 – 36 months||36 – 60 months|
Remember that if you have a previous drink driving, drug driving or failing to provide conviction within 10 years, the minimum disqualification is 3 years (possibly longer). A previous conviction for a similar offence will also increase the risk of prison.
Our senior solicitor, Marcus A. Johnstone, discussing drink driving offences:
One of our specialist solicitors, Conor Johnstone, discussing drink driving offences:
Mental health Information and support
When you're experiencing a mental health problem, supportive and reliable information can change your life. 'Mind' empower people to understand their condition and the choices available to them through the following:
- Infoline, which offers callers confidential help for the price of a local call.
- Legal Line, which provides information on mental health related law to the public, service users, family members/carers, mental health professionals and mental health advocates.
- The award-winning publications and website, now certified by the Information Standard.
More information can be found on the Mind website - http://www.mind.org.uk