What Is the Difference Between Drunk in Charge and Drink Driving?
The critical difference lies in whether you were driving or attempting to drive. Drink driving under section 5(1)(a) of the Road Traffic Act 1988 requires proof that you drove or attempted to drive while over the prescribed limit. Drunk in charge under section 5(1)(b) applies when you are in charge of a vehicle but not actually driving it.
The distinction matters because the penalties are substantially different. Drink driving carries a mandatory minimum 12-month disqualification and up to 6 months in prison. Drunk in charge carries 10 penalty points and a maximum of 3 months imprisonment, with no mandatory ban. The no likelihood of driving defence is also available only for the drunk in charge offence.
In practice, the offence you are charged with depends on the evidence available to the prosecution. If police witness you driving, or there is CCTV or witness evidence, you will face the more serious drink driving charge. If you are found in or near a stationary vehicle, the charge is more likely to be drunk in charge.
Penalties Compared
Drunk in Charge Penalties
Drunk in charge under section 5(1)(b) carries a maximum of 3 months imprisonment and an unlimited fine. The court must impose 10 penalty points unless it decides to impose a discretionary disqualification instead. There is no mandatory driving ban for this offence.
The endorsement code DR20 is placed on your licence. This remains for 11 years from the date of conviction. While the penalties are less severe than drink driving, a conviction still results in a criminal record and significant insurance consequences.
Drink Driving Penalties
Drink driving under section 5(1)(a) carries a maximum of 6 months imprisonment, an unlimited fine and a mandatory minimum driving ban of 12 months. The ban increases to a minimum of 36 months for a second offence within 10 years. Higher alcohol readings attract longer bans and a greater risk of custody.
The endorsement code DR10 is placed on your licence and remains for 11 years. Drink driving convictions trigger the high risk offender scheme if the breath reading is 87.5 micrograms or above, requiring a DVLA medical examination before your licence can be returned.
Which Offence Will I Be Charged With?
The charge you face depends on the evidence the prosecution has. If there is evidence that you were driving, such as police observations, dashcam footage, witness statements or the vehicle being in motion, you will be charged with drink driving under section 5(1)(a). If the evidence only places you in or near a stationary vehicle, the charge is more likely to be drunk in charge under section 5(1)(b).
Borderline cases do arise. If you are found in the driver seat with the engine running, the prosecution may argue you were attempting to drive. Equally, if you were seen moving the vehicle a short distance in a car park, the question of whether this constitutes driving on a road or public place becomes relevant.
The strength of the evidence is key. If the prosecution cannot prove beyond reasonable doubt that you were driving or attempting to drive, they may charge the lesser offence of drunk in charge rather than risk an acquittal on the more serious charge.
Can a Charge Be Reduced from Drink Driving to Drunk in Charge?
It is possible for a drink driving charge to be reduced to drunk in charge through negotiation with the prosecution. This may happen where the evidence of driving is weak, or where the prosecution accepts that the circumstances are more consistent with being in charge than with actually driving. This process is known as accepting a lesser plea.
A reduction in charge can be significant. It removes the mandatory disqualification and reduces the maximum prison sentence from 6 months to 3 months. Your solicitor can make representations to the Crown Prosecution Service setting out why the lesser charge is more appropriate on the evidence.
Not every case is suitable for a charge reduction. The prosecution will only consider it where there is a genuine evidential weakness in proving the driving element. A specialist solicitor can assess the strength of the prosecution case and advise on whether this is a realistic option.
Legal Advice on Your Charge
Understanding which offence you face and the evidence against you is essential before making any decisions about your plea. A specialist drink driving solicitor can review the prosecution papers, identify weaknesses in the evidence and advise on the best course of action. This initial assessment can determine the entire direction of your case.
If you have been charged with drink driving but believe you were not actually driving, legal representation is particularly important. Your solicitor can challenge the driving element and negotiate with the prosecution to reduce the charge. Even if a reduction is not possible, understanding the distinction between the offences allows for better preparation of your defence or mitigation.