Can You be Arrested for Drink Driving if You are Not in the Car?

Drink driving is an absolute offence in the UK, meaning drivers found to be over the limit will be prosecuted and, depending on the implications of their offence, may be held by the police until their court date. While most drink driving offences take place on the road, showing intent to drive while over the limit can result in a prosecution, too. Therefore, it is possible to be arrested for a drink driving offence without actually driving.

Typically, this may happen if you are over the limit and are:

• Near your vehicle
• In the driving seat or a passenger seat of your vehicle
• Have the keys in the ignition
• Have the keys on your person

Whether you are arrested or charged will depend on the context of your situation; the police may initially confront you about your intent to drive and you may be able to explain that you were not planning to, but you will be expected to prove this. You may be able to show that your friend who has not consumed alcohol will be driving you, or that you were only retrieving something from the vehicle.

If the police find that you have a reason to drive, such as an appointment or have communicated your intent over the phone, they may use this as substantial evidence to charge you with being in charge of a motor vehicle while drunk.

It is essential that you understand the implications of driving offences and how important it is that you do not take any chances when you are over the legal alcohol limit. In the following guide, the expert motoring offence solicitors at JMW explain everything you need to know about driving offences and what you may be facing if you have been arrested without even turning your engine on.

What happens when the police confront you for drink driving?

In some cases, the police will be able to tell if drivers have consumed alcohol based on their first interaction - slurred words or alcohol on the breath may be strong indicators. However, the police can not prosecute a driver for being over the limit without conducting a urine, blood or breath test.

It is most likely that you will be asked to perform a breath test during your first interaction with the police, but you can refuse to do this. However, you should be aware that if you do refuse a breath test, you will be taken to the police station and may be required to take a urine or blood test instead. If you are found to be guilty and refused the test, you may be prosecuted more severely. The police may also carry out a urine or blood test to get more accurate results if they are unsure about the results of the breath test.

The police will ask you questions about whether you have been drinking and what your intentions are. You may be required to prove that you did not intend to drive. In some cases, the police may not require you to take a breath test and you may be able to satisfy their basic questioning. If the police decide to arrest you, they can only do so after requesting that you take a breath test, or if you attempt to flee the scene or act aggressively in another way.

If you agree to take the breath test and it shows that you are above the legal alcohol limit, you will be arrested and taken to the station. From there, you will be able to request legal advice from a solicitor.

What is the UK's legal alcohol limit?

Depending on which type of test you take, the alcohol limits differ:

• Breath tests have a limit of 35mg per 100ml of breath
• Blood tests have a limit of 80mg per 100ml of blood
• Urine tests have a limit of 107mg per 100ml of urine

This is because alcohol defuses into different parts of your body in different amounts. The type of test you take will not affect how much alcohol you must have consumed to be over the limit.

These limits roughly translate to four units of alcohol for males and three for females, but it is safer not to drink at all as other factors may affect how strongly the alcohol affects you, such as your age, weight, metabolism and whether you ate beforehand. Alcohol affects everyone differently, so it is important to remember that these are only guidelines and you may still be charged if you follow them.

What are the penalties for drink driving?

The penalties for drink driving vary depending on how far over the limit you were, your chances to cause harm and to what extent, and whether you cooperated with the police.

If you are found guilty of intending to drink while drunk, you will receive:

• A driving ban for a minimum of 12 months
• An unlimited fine

Additionally, you may also face the following penalties:

• A prison sentence of up to six months
• A community order
• An extended retest

If you are charged for a repeat offence, you will be disqualified from driving for a minimum of 36 months.

If you need to drive because of your job or to support someone, you should avoid taking any chances as these factors are not considered as valid defences during court proceedings, even if you are usually a competent and careful driver.

What are the different drink driving offences?

Drink driving is often connected to other driving offences, making your potential penalties much more severe. While it is unlikely that you would be able to commit these additional motoring offences if you were not actually driving, it is important to consider that, if you had driven while under the influence of alcohol, you could also be prosecuted for the following:

• Careless driving
• Dangerous driving
• Drug driving
• Failure to report or stop after an accident
• Speeding

How does the court penalise drink driving offences?

The severity of your penalties will be determined by the implications of your offence. The court may also consider the following points to determine how strongly they will penalise you:

• Whether you were planning to drive with passengers in your vehicle
• The weather conditions

Our solicitors are well experienced in how the court approaches drink driving offences and can help you to argue that you were not intending to drive at all, or that your situation caused you to make a bad decision. For example, we may be able to help if:

• Your drink was spiked
• There was an emergency situation
• You were not actually going to drive, simply sit in the car, perhaps with the engine on

While we may be able to prove that these points applied to your situation, the court may not accept them. In the best case scenario, the court may reduce your sentence with the consideration that you were not acting as you usually would. This is very rare and our team typically approaches cases based on other strategies.

Usually, the strongest defences against drink driving claims involve proving that the equipment used was faulty or that the police did not conduct themselves in a fair or proper way. Moreover, there was no evidence of driving. By showing that a reading was not valid, your charges may be reduced significantly or removed completely. The police must follow a very specific procedure when confronting you about drink driving; our solicitors understand this and may be able to use the circumstances of your arrest to help you.

What should you do if you are charged with a drink driving offence?

If you are charged with a drink driving offence without actually driving, you should contact an expert motoring offences solicitor, such as those at JMW, as soon as possible. We will be able to advise you on how to conduct yourself, and will act quickly to give you the best chance of successfully defending yourself against a drink driving charge. It may be difficult for the police to prove intent to drive while over the legal drink driving limit, so we will use our experience and knowledge of the issue to support you.