Drink Driving In Scotland

What is the offence of Drink Driving in Scotland?

Drink Driving in Scotland is the act of driving – or attempting to drive – a motor vehicle on a road or public place while over the prescribed alcohol limit. It’s a serious criminal offence prosecuted under Section 5(1)(a) of the Road Traffic Act 1988.

Scotland has different, stricter alcohol limits than the rest of the UK. The legal limits are:

• Breath: 22 micrograms of alcohol in 100ml of breath.
• Blood: 50 milligrams of alcohol in 100ml of blood.
• Urine: 67 milligrams of alcohol in 100ml of urine.

If you are found to be over these limits, you face a potential conviction.

Penalties for Drink Driving in Scotland

A conviction for drink driving is seen as a serious offence and can have severe consequences. The penalties that are handed down are determined by the specific circumstances of the offence, such as the level of alcohol in your system and whether it is a repeat offence.

Common penalties are:

• Mandatory Driving Disqualification: A minimum ban of 12 months is given for a first offence. This is increased to a minimum of 3 years for a second offence within a 10-year period. It is possible to reduce the length of the ban by up to 25% by participation in the Drink Drive Rehabilitation Course
• Financial Penalty: A fine of up to £5,000 can be imposed.
• Imprisonment: a prison sentence of up to 6 months is possible.
• Vehicle Forfeiture: Your vehicle may be sought for seizure and destruction by the Crown in cases where the reading is particularly high or repeat offences
• Criminal Record: A criminal record will be given as a result of a conviction, which can affect future employment, travel, and insurance costs

Sources:

• Road Traffic (Offenders) Act 1988, section 33A
• Road Traffic (Offenders) Act 1988, section 34
• Road Traffic (Offenders) Act 1988, section 34A

How long will I be disqualified for if convicted of drink driving in Scotland?

Drink driving in Scotland carries a minimum disqualification of 12 months. The court can impose a longer disqualification if it considers that the circumstances and/or the record of the accused merit it.

Source:

• Section 34 of the Road Traffic (Offenders) Act 1988

Factors which may increase the length of the disqualification include:

• the level of alcohol in excess of the prescribed limit
• any aggravating features such as evidence of poor driving even if no separate driving offence has been libelled
• the record of the accused, including but not necessarily limited to previous drink-driving offences

The interplay between these factors is crucial.  Formulaic calculations are to avoided. The proper is to consider the alcohol reading together with any aggravating and mitigating circumstances relating to the offence, such as the quality of the driving; and the offender, which must include consideration of his record or lack of record.

Case Law:

• Peter Jenkins v Procurator Fiscal Stranraer [2016] SAC (Crim) 14

The Importance of Discount

In all cases an early plea of Guilty will attract a discount to the length of disqualification and accompanying penalty. Furthermore, if the court can be persuaded to allow the offender to participate in the drink drive rehabilitation scheme, the period of disqualification can be reduced by a further 25%. Discount can therefore have a significant effect on the length of disqualification.

Example:

• An offender pleads Guilty at the earliest opportunity
• The Sheriff selects a “starting point” of 24 months disqualification
• A one-third discount reduces this to 16 months
• Successful participation in the drink drive rehabilitation course means a further 4 month reduction
• “End point” disqualification of 12 months

Case Law:

• Gemmell and Others v HMA 2011 HCJAC 129: amongst other things, determined that discount should apply to “driving” penalties such as the amount of penalty points or the length of the disqualification. Prior to Gemmell, the discount did not apply to the driving penalty. The discount cannot result in less than 12 months disqualification being imposed.
• Little v Procurator Fiscal Paisley 2019 SAC (Crim) 15: for a first offender there is a presumption in favour of certifying the offender as suitable for the drink drive rehabilitation course

For more information on these points, see our dedicated blog:

• Drink driving sentences in Scotland – recent developments and what to expect in terms of disqualification

Potential Defences

To successfully prosecute drink driving in Scotland the Crown has to prove its case beyond reasonable doubt. Thus, there requires to be:

• corroborated evidence that the accused was the driver;
• that the driving occurred on a road or other public place;
• that the machine used was accurate;
• If a specimen of blood or urine was taken, the sample may be inadmissible if the circumstances surrounding its appropriation were unfair or if the police have failed to observe the strict rules applicable to same in section 7 of the Road Traffic Act 1988.

Some common defence strategies therefore include:

• Procedural Errors: Police officers are required to follow strict procedures during an arrest and while conducting breath, blood, or urine tests. Therefore any failure to do so can lead to a successful defence
• Unreliable Test Results: The accuracy of breathalysers and other testing equipment can be challenged in some circumstances. This can, therefore, include questioning the calibration of the machine or the chain of custody for blood or urine samples.
• “Post-driving Consumption”: In certain cases, it may be argued that alcohol was consumed after driving but before the test was administered, leading to a misleadingly high reading. This is the statutory defence of “post-incident drinking in terms of section 15(3) of the Road Traffic (Offenders) Act 1988 and you can read more about that here.
• Necessity/Emergency: This defence is rare but can be applied if it can be proven that you were driving while over the limit only to avoid a serious and imminent threat.

A drink driving charge can feel hopeless, but an experienced legal professional will scrutinise the prosecution’s case for potential weaknesses. If there is a way to win your case, we will find it.

Why Instruct Us for your case?

Reason 1 – We Are The Pioneers

Other firms also claim this. But see when the domain was registered to see how long the firm have actually been online. Our domain was registered in 2001. We believe we were registered years in advance of any rival firm. We are invited, founder members of the Association of Motor Offence Lawyers.

Reason 2 – Our Statistics 

We base our success rate on 1000 independently analysed cases chosen at random. Other firms may claim even higher success rates. Do not simply accept them at face value. Ask them what their case sample size was. How do they define case success? We have successfully defended sports stars, famous personalities, peers of the realm, members of the Royal Family, fellow solicitors, advocates, leading QCs and police officers. We do not name names unless the case is already in the public domain but you can see some of our reported cases here.  As we helped them, so we can help you:

Drink Driving Case Results

Reason 3 – Our Independent Reviews

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We guarantee a Fixed Fee. It does not change no matter how often we need to attend court. There is no small print. There are no hidden costs.

Reason 5 – Nationwide Representation 

Although our offices are in Glasgow, we regularly defend motorists in every Court in Scotland. On any given month, our solicitors appear in courts across the country, including Aberdeen, Dumfries, Edinburgh and Paisley. Wherever your case is being heard, we have the experience and resources to represent you effectively.

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Can the court really seize my car?

If the prosecution moves to have your car seized or forfeited, the court can grant their motion. The defence has a right to be heard and can argue that forfeiture is not proportionate in the circumstances.

Will my insurance premiums increase if convicted?

Almost certainly, yes.

Will I need to resit my test?

Unlike dangerous driving, there is no requirement that a person resits their driving test. In some cases, typically involving high readings, the DVLA can categorise a person as “high risk”. In such cases, the DVLA can refuse to issue a new driving licence until/if the person passes medical checks.

Can I go to prison for drink driving?

In theory, yes, for up to 6 months. In practice, only the most serious cases will result in a prison sentence. However it is relatively common for the court to impose an alternative to custody such as unpaid work. Failure to comply with this could result in a prison sentence.

I was stopped by the police, breathalysed and found to be over the limit. What should I do?

Unless there is a problem with the intoximeter reading or a serious breach of procedure, such cases are extremely difficult to defend. It may be that your interests are best served by an early plea of Guilty.

I intend to plead Guilty. Do I really need a solicitor?

Absolutely yes. As discussed above, sentencing for drink driving in Scotland is multi-faceted. Legal help, in our opinion, is essential to achieve the best possible outcome.

Call: 0800 048 8696