Sentencing Framework for Drunk in Charge
The offence of being drunk in charge of a motor vehicle is sentenced under the Magistrates Court Sentencing Guidelines. The maximum penalty is 3 months imprisonment, an unlimited fine and 10 penalty points. A discretionary driving ban may be imposed instead of points.
The sentencing approach differs from drink driving because the offence is less serious. There is no mandatory driving ban and the maximum custody is shorter. However, the court still follows a structured approach based on the alcohol reading and the circumstances of the offence.
The guidelines categorise the offence by the level of the alcohol reading, similar to drink driving but with different starting points reflecting the lower severity of the offence.
Sentencing Starting Points
Low Level Alcohol Readings
For breath readings of 36 to 59 micrograms while in charge of a vehicle, the starting point is a Band B fine, equivalent to 100 percent of weekly income. The court will impose 10 penalty points rather than a driving ban in most cases at this level.
A community order is unlikely for low readings and custody is not considered. The sentence is typically a fine, penalty points, a victim surcharge and prosecution costs.
Medium Level Alcohol Readings
For breath readings of 60 to 89 micrograms, the starting point is a Band C fine, equivalent to 150 percent of weekly income. The court may consider a discretionary driving ban as an alternative to penalty points.
At the upper end of this range, a low-level community order may be considered, particularly if there are aggravating factors. The court balances the seriousness of the reading against the fact that you were not driving.
High Level Alcohol Readings
For breath readings of 90 micrograms and above, the starting point is a medium-level community order. A discretionary driving ban is more likely at this level, and the court may impose unpaid work or other requirements.
Custody is possible but unusual for drunk in charge offences even at higher readings. It would typically require significant aggravating factors such as a recent previous conviction for a similar offence.
The No Likelihood of Driving Defence
The statutory defence under section 5(2) of the Road Traffic Act 1988 is unique to the drunk in charge offence. If you can prove on the balance of probabilities that there was no likelihood of you driving while still over the limit, you will be acquitted.
This defence is commonly raised and, when properly prepared, can succeed. The court considers all the circumstances including where the keys were, your position in the vehicle, whether alternative transport was arranged, and your stated intention.
If this defence succeeds, there is no conviction and no penalty at all. It is therefore critical to take legal advice on whether this defence is available in your case before deciding how to plead.
Aggravating and Mitigating Factors
Aggravating factors for drunk in charge include having the vehicle running, being found in the driver seat, previous convictions, evidence of recent driving, and having passengers in the vehicle. These factors push the sentence upward.
Mitigating factors include evidence supporting the no likelihood of driving defence even if it was not formally raised, a clean record, genuine remorse, evidence of alternative transport arrangements, and steps taken to address alcohol use.
A specialist solicitor can present mitigation effectively and may be able to persuade the court to impose a lower sentence or to avoid a discretionary driving ban.