Can you be charged for drink driving and not be in the car?

4th November 2020
Nick Titchener headshot

Nick Titchener

Director & Solicitor Advocate

In Brief

Drink driving can appear to be a relatively straightforward offence. You are either under the limit behind the wheel, or you are over it – and if the latter applies then you have committed a crime. However, in truth the offence of drink driving is much more complex than this. It refers not only to the act of driving itself but more broadly to being “in charge of a motor vehicle”. This makes any interaction with your vehicle a risk if you are over the drink-drive limit, and means it is possible to be charged for drink driving without having taken your car anywhere.

If you are arrested for drink driving of any sort it is crucial to seek expert legal assistance immediately, as the consequences of a conviction are severe. Not only can it result in a driving ban, but it could land you a prison sentence. At Lawtons we have both expertise and vast experience in handling drink driving cases.

Drink Driving

What is drink driving?

Drink driving refers to being in charge of a motor vehicle while being unfit to drive due to alcohol consumption. Most drink drivers are caught by the police, having been pulled over at the side of the road after driving in a suspicious manner. However, the police may also follow drivers to their destination and catch them there. 

They do this by performing a breath test which shows how much alcohol is in your breath. If you are found to be over the legal limit then you will be taken to a police station and placed in custody. Usually the police will use a more complex breathalyser at the station to perform a more accurate test, and they may also take blood or urine samples as evidence that you have been drink driving.

What is the drink driving limit under UK law?

In England and Wales, the legal limit of alcohol in 100 millilitres of breath is 35 micrograms. Operating a motor vehicle with any more than 35 micrograms of alcohol in your breath is illegal. 

How much alcohol pushes you over the drink-drive limit?

There is no definitive answer to this question as there are a number of factors which can impact exactly how many units of alcohol will equate to the drink drive limit in your body.

These include your age, height, weight, metabolism, sex and how much you have eaten. 

What are the different types of drink driving offences?

Drink driving is only one offence, and the legal alcohol limit provides a clear black and white rule on when a drink driving offence has been committed. However, if you are charged with drink driving, there are certain aggravating factors that can impact the severity of the sentence. 

Aggravating factors in a drink driving charge

There are a number of factors which can lead to a more severe penalty for drink driving. These include:

  • Previous drink driving offences
  • Being involved in an accident
  • Having passengers in your vehicle
  • Driving in poor weather conditions

Mitigating factors in a drink driving charge

Mitigating factors are very rare in drink driving cases as these types of offences are treated extremely seriously by the Crown Prosecution Service. However, these types of factors which can lessen the severity of a sentence may occasionally apply, and can include:

  • Not knowing a drink had been spiked
  • Some emergency situations
  • Driving a very short distance or not at all

Can you commit the offence of drink driving without being in a car?

Because under English law drink driving refers to being in control of a motor vehicle, it is entirely possible to be charged with drink driving without having been behind the wheel. 

If it can be proven that you were intending to drive a vehicle while under the influence of alcohol, then you could be charged with drink driving. 

Indicators of this include:

  • Being in close proximity to your vehicle
  • Being inside your vehicle but not in the driving seat
  • Having the keys in the ignition

Having a reason to drive, such as needing to be at work or having a booked appointment, which provides a clear motivation for you to get behind the wheel despite being over the alcohol limit, can be seen as evidence of your intentions.

If you have consumed more than the legal alcohol limit it is not worth going anywhere near your vehicle, as simply being close to it or being in possession of the car keys could be enough to lead to a charge of drink driving.

What are the sentencing guidelines for drink driving?

The sentencing guidelines for an offence of drink driving depend not only on some of the factors outlined above but on how far over the alcohol limit you are found to be. 

All drink driving convictions lead to a criminal record, but:

  • A relatively low reading on a breathalyser may result only in a fine
  • Community sentences, including probation orders and home curfews, come into effect above two and a half times the legal limit
  • With a reading of over 120 micrograms, a prison sentence of up to six months may be considered by the court. You could also face an unlimited fan and a ban from driving for up to three years.


What should you do if you are arrested for drink driving?

Drink driving is one of the most serious forms of motoring offence and should be treated as an urgent matter that could have a significant impact on your life and the lives of your loved ones. As soon as you are arrested, it is crucial that you seek expert legal advice at the earliest possible opportunity. 

Contacting the team of expert solicitors at Lawtons will place you in the expert hands of a team who have a strong track record in achieving positive outcomes in these types of cases. We will carefully and meticulously examine all the facts of your case in order to build the most robust defence possible. Call Lawtons today on 0333 577 0522.

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