Defending a drink driving charge

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Criminal solicitor, Jen Law, looks at drink driving and the defences available

If someone is charged with drink driving, they will generally have two main options:

1.  to plead ‘guilty’, and argue there is a “special reason” for the Court not to impose a minimum 12 month disqualification (see our separate article on special reasons) or;

2. to plead ‘not guilty’ and have a trial, where the Court will hear evidence about the circumstances of the case and decide whether the accused is guilty or not.

There are several grey areas in the complex world of motoring law. For example, the Court could find someone guilty of drink driving, but allow the ‘not quite good enough’ defence to be treated as a ‘special reason’ and therefore a ban could be avoided.

Even where a defence or ‘special reason’ argument fails, a court can still use those circumstances in mitigation to reduce the disqualification and punishment for the defendant in the event of a conviction.

Confused? That is why anyone facing a drink driving charge needs specialist legal advice.

If you are located in the South West (Cornwall, Devon, Somerset, Dorset, Avon, Wiltshire) our motoring offence solicitor, Jen Law, can help you navigate the legal complexities to achieve the best possible outcome for you.

Here are some defences commonly used in drink driving defences:

  1. Automatism – Many people associate automatism with sleep walking, but it can be a defence to a criminal charge. One of the necessary elements required to be guilty of a crime is that a defendant must be conscious of what they are doing – i.e. aware of thecriminal act they are carrying out (the Latin phrase would be establishing ‘actus reus’). Automatism is a defence which seeks to prove that the alleged crime was committed by way of an involuntary act caused by something outside their control. The burden of proof is on the defendant to prove to the Court that automatism was the reason total loss of control was caused. It is rarely used, especially in cases of drink driving, but if a Court finds automatism proved then the offender will be found not guilty (acquitted).
  2. Duress – this could be defined as being forced into a position which results in someone having to act in a certain way to protect themselves. If someone is at serious risk of harm and in fear for their safety, then it is open to them to present their particular circumstances to a court and argue a defence of duress. Our expert solicitor, Jen Law, has successfully run the defence of duress in drink drive cases and can advise whether you have the same option. It is critical to be able to show that the threat was real (or perceived to be), that the distance driven was only sufficient to be able to escape the threat and whether a sober person would have reacted in the same way if faced with similar circumstances.
  3. Spiked drinks – Although this can be raised as a defence, it is far more likely to be viewed as a ‘special reason’ by the Court.
  4. Technical defences – These include such things as the police not following the proper procedures or using faulty equipment. If the police paperwork was not completed properly, or for example, they did not secure the samples in the correct way, there is the risk that the defendant could not receive a fair trial and the case could be thrown out.
  5. Not on a public road/in private – the statute is clear and states in the formal charge that the offence must have been committed on a public road or other public place. If you have driven on private land then it is open to the Court to determine that the area on which you have driven is not a public road or public place. A car park which is locked and therefore restricts access at certain times could be seen as private but a general rule is that car parks, hotel grounds, holiday caravan parks and the like are seen as public places.
  6. Post-drive consumption or the ‘hip-flask’ defence – This is the most commonly used defence in relation to a drink driving charge, but that does not mean it is the easiest to establish. The defendant would need to prove to the Court that they had been under the limit at the time of driving, that when they stopped at their destination after driving, they had taken alcohol, that they had not driven again after drinking the alcohol and that therefore they had not been over the limit at the point they had driven.


This is the very briefest overview of some of the defences available to someone facing a drink driving charge. Jen has written a separate article about the so-called hip flask defence that you can read HERE.

Because motoring offences is such a complicated area it is always advisable to consult a specialist solicitor. Our driving license is crucial to most of us so if there is a defence available that might enable us to hold on to it then it generally pays to find out.

Although most motoring offences do not attract Legal Aid, Jen Law will be happy to discuss funding options with you. We offer a flexible approach, including manageable installment plans and fixed fees.

Call Jen on 0808 139 1606 or email her at [email protected]