A drink driving conviction can have serious consequences, including a driving ban, a substantial fine and, in some circumstances, a prison sentence.
For many drivers, particularly those facing a first offence, the prospect of going to prison can be a major concern. However, imprisonment is not the automatic outcome of every drink driving offence. The sentence depends on the circumstances, including the alcohol reading, the way the vehicle was driven, previous convictions and any aggravating or mitigating factors.
So, can you go to prison for drink driving? Yes, but whether a custodial sentence is imposed depends on the specific offence and its seriousness.
Please note: This guide provides general information about drink driving law in England and Wales. The outcome of an individual case depends on its specific circumstances and the applicable sentencing guidelines.
Can You Go To Prison For Drink Driving?
Yes. Drink driving is a criminal offence, and imprisonment is one of the potential penalties.
For the standard offence of driving or attempting to drive while over the legal alcohol limit, the maximum penalty is:
- Up to six months in prison
- An unlimited fine
- A driving ban of at least 12 months
- A criminal record
The exact penalty depends on the circumstances of the offence.
However, the fact that prison is legally available does not mean that every person convicted of drink driving will receive a custodial sentence.
For many drivers, particularly those committing a first offence without particularly serious aggravating circumstances, the main penalties are a driving disqualification and a fine.
What Is The Legal Drink Driving Limit?
The legal drink driving limit varies depending on where you are in the UK.
In England and Wales, the legal alcohol limit is:
- 35 micrograms of alcohol per 100 millilitres of breath
- 80 milligrams of alcohol per 100 millilitres of blood
- 107 milligrams of alcohol per 100 millilitres of urine
Scotland has lower limits:
- 22 micrograms of alcohol per 100 millilitres of breath
- 50 milligrams of alcohol per 100 millilitres of blood
- 67 milligrams of alcohol per 100 millilitres of urine
The law is set out principally in the Road Traffic Act 1988.
It is important not to assume that being below a particular number of drinks means you are legally safe to drive. Alcohol affects people differently, and there is no reliable way to calculate how much you can drink while remaining below the legal limit.
Does The Alcohol Reading Affect Whether You Go To Prison?
Yes, the alcohol reading can be highly significant when it comes to potential prison sentences.
The sentencing guidelines divide drink driving offences into different categories based on the level of alcohol detected.
For breath readings, the guideline categories include:
| Breath alcohol reading | Category |
| 36-59 micrograms per 100ml | Lower range |
| 60-89 micrograms per 100ml | Medium range |
| 90-119 micrograms per 100ml | Higher range |
| 120 micrograms per 100ml or more | Highest range |
The equivalent categories also apply to blood and urine readings.
As the alcohol reading increases, the potential sentence generally becomes more severe.
For the highest readings, the guideline can provide for a custodial starting point in the most serious circumstances.
However, the court must consider the complete circumstances rather than looking at the reading alone.
What Is The Maximum Sentence For Drink Driving?
For the standard offence of driving or attempting to drive while over the prescribed alcohol limit, the maximum sentence is up to six months’ imprisonment, an unlimited fine and a driving ban.
The court must also impose a driving disqualification of at least 12 months for a first conviction.
The maximum sentence should not be confused with the sentence most people receive – each case is unique, and the penalties can vary from person to person.
Will I Go To Prison For A First Drink Driving Offence?
For first time offenders, imprisonment is not the usual outcome for a standard drink driving conviction.
The court will consider factors including:
- The alcohol reading
- The nature of the driving
- Whether there was an accident
- Whether anyone was injured
- Previous convictions
- Aggravating factors
- Mitigating factors
- The offender’s personal circumstances
A first offence with a relatively low alcohol reading and no additional serious features is generally dealt with less severely than a case involving an extremely high reading, dangerous driving or other serious circumstances.
However, being a first-time offender does not guarantee that you will avoid prison.
When Can Drink Driving Lead To Prison?
A prison sentence becomes more likely as the seriousness of the offence increases.
Factors that can contribute to a more serious sentence include:
- A very high alcohol reading
- Particularly poor driving
- An accident
- Injury to another person
- Carrying passengers in circumstances that increased the risk
- Previous relevant convictions
- Driving while already disqualified
- Other serious driving offences
- Attempts to evade the police
- A prolonged period of offending
- Other significant aggravating circumstances
What Are Aggravating Factors?
Aggravating factors are circumstances that make an offence more serious.
Depending on the circumstances, these can include:
- Previous convictions
- Poor driving
- A collision
- Injury to another person
- Carrying passengers
- Driving for a prolonged distance while impaired
- Driving in particularly dangerous circumstances
- Attempting to evade detection
- Relevant offending committed at the same time
The court should not double-count a factor that has already been taken into account when determining the seriousness category.
What Are Mitigating Factors?
The court will also consider mitigating factors when it comes to drink driving charges.
These are circumstances that may reduce the seriousness of the offence or support a lower sentence.
Depending on the case, they may include:
- No previous convictions
- A previously good driving record
- Genuine remorse
- Evidence of rehabilitation
- A relatively low alcohol reading
- A short distance driven
- A genuine medical issue
- Exceptional personal circumstances
- An early guilty plea
Personal circumstances do not provide an automatic defence to drink driving. However, they can sometimes be relevant when the court is determining the appropriate penalty.
Can A Serious Medical Condition Prevent Prison?
A serious medical condition or other significant health issue may be relevant to sentencing, but it does not automatically prevent a custodial sentence.
The court can consider medical evidence where imprisonment would have particularly serious consequences because of an individual’s physical or mental health.
Similarly, evidence of a mental disorder may be relevant in some cases.
If health issues are relevant to your sentencing, it can be important to obtain appropriate medical evidence and ensure that the court is properly informed of your circumstances.
What If You Are The Sole Or Primary Carer?
Being a sole or primary carer can be relevant to sentencing.
For example, if imprisonment would leave children or another vulnerable person without appropriate care, this may be presented to the court as part of mitigation.
However, being a primary carer does not automatically mean that a custodial sentence cannot be imposed.
The court must balance the seriousness of the offence against the offender’s personal circumstances.
What Are The Other Penalties For Drink Driving?
Prison is only one possible consequence.
A drink driving conviction can result in:
A Driving Ban
For a first conviction for driving or attempting to drive while over the alcohol limit, the minimum drink driving ban is generally 12 months.
The period can be significantly longer where there are previous convictions.
An Unlimited Fine
The court can impose an unlimited fine.
The amount will depend on the circumstances and the offender’s financial position.
A Criminal Record
Being found guilty of drink driving results in a criminal record.
A conviction can also have consequences for employment, travel and other aspects of your personal life.
Increased Car Insurance Costs
A drink driving conviction can lead to substantially higher car insurance costs.
Insurers may consider the conviction and driving disqualification when calculating premiums.
What Is The Extended Driving Test?
Some drivers who receive a lengthy driving disqualification may be required to complete an extended driving test before they can regain their full driving entitlement.
The court can impose an extended test in certain circumstances, including where a driver is disqualified for certain serious driving offences.
If an extended test is required, you will generally need to obtain a provisional licence and pass the relevant test before you can legally continue driving.
What If You Are Caught Drink Driving?
If you are caught drink driving, the process commonly begins with a roadside screening test.
A police officer can require a driver to provide a preliminary breath specimen in circumstances permitted by law, including where they have reasonable cause to suspect that the driver has alcohol in their body.
If the roadside test indicates that the driver may be over the limit, they may be arrested and taken to a police station.
At the police station, an evidential specimen may be required.
This can involve:
- Breath
- Blood
- Urine
The evidential result can then be used as part of the prosecution case.
Can You Be Convicted If You Were Not Driving?
Potentially. The Road Traffic Act also creates an offence of being in charge of a vehicle while over the prescribed alcohol limit.
This is different from the offence of driving or attempting to drive while over the limit.
Whether someone was “in charge” of a vehicle depends on the circumstances.
If you have been charged with being in charge of a vehicle while over the limit, you should obtain legal advice because the applicable law and potential defences can differ.
What If You Were Only Slightly Over The Limit?
Being just over the legal limit can still result in a drink driving conviction.
There is no rule that allows drivers to exceed the limit by a particular amount without consequence.
However, the precise alcohol reading can be relevant to sentencing.
Where a driver is only slightly above the legal limit, the applicable sentencing category may be considerably lower than for a driver with a very high reading.
The circumstances surrounding the test and the evidence should also be carefully considered.
Can You Challenge A Drink Driving Charge?
In some circumstances, yes.
A drink driving allegation should not simply be accepted without considering the evidence.
Potential issues can include:
- The circumstances of the initial stop
- Whether the police had lawful grounds to require a preliminary test
- The operation of the evidential testing equipment
- The timing of the evidential sample
- Whether the correct procedures were followed
- The reliability of the evidence
- Whether there was a valid medical explanation
- Whether the prosecution can establish the relevant offence
Every case is different – if you believe there may be an issue with the evidence, speak to one of our driving offence solicitors before entering a plea.
What Happens If Drink Driving Causes Death?
Cases involving death are treated very differently from a standard drink driving offence.
Where a driver causes death while under the influence of alcohol or drugs, they can face causing death by careless driving whilst under the influence of drink or drugs.
For offences committed after 28 June 2022, the maximum penalty is life imprisonment. The current sentencing guideline provides an offence range of 26 weeks to 18 years’ custody.
There are also separate offences involving causing death by dangerous driving.
These are extremely serious cases, with the potential for lengthy custodial sentences and lengthy driving disqualifications.
Can Drink Driving And Careless Driving Be Charged Together?
If a driver is over the alcohol limit and their driving falls below the required standard, the circumstances may give rise to additional allegations.
Careless driving is distinct from the standard offence of driving while over the alcohol limit.
Where a collision or injury has occurred, the prosecution will consider the nature of the driving, the level of alcohol and the consequences of the incident when deciding which offences to charge.
Does A Guilty Plea Reduce A Drink Driving Sentence?
An early guilty plea can generally provide a reduction in sentence under the applicable sentencing rules.
However, this does not necessarily mean that every penalty is reduced.
For example, the mandatory period of driving disqualification for a standard drink driving conviction is not simply reduced because someone pleads guilty.
The timing of the plea can also affect the level of any reduction.
If you are considering pleading guilty, it is sensible to obtain legal advice first so that you understand the consequences.
Can A Drink Driving Ban Be Reduced?
In qualifying cases, you may be able to reduce a driving disqualification by completing a drink-drive rehabilitation course.
The course is available in certain circumstances where a driver has been disqualified for at least 12 months, and successfully completing the course can reduce the length of the ban by up to 25%.
This can be particularly important for drivers who rely on their driving licence for work or family responsibilities.
Expert Drink Driving Defence From McArthur Solicitors
A drink driving charge can have serious and long-lasting consequences. While a standard offence does not automatically result in prison, the possibility of a prison sentence, lengthy driving ban, substantial fine and criminal record should never be underestimated.
At McArthur Solicitors, our criminal defence team has specialist experience in driving offences, including drink driving allegations and cases where drivers are at risk of significant penalties.
We can examine the circumstances surrounding your arrest, the roadside test, evidential breath, blood or urine results and any other evidence relied upon by the prosecution. Where appropriate, we can also advise on potential defences, mitigating circumstances and the best strategy for achieving the best possible outcome.
If you have been caught drink driving, are due to attend court or are concerned that you could face a custodial sentence, obtaining expert advice early can be crucial.
Contact McArthur Solicitors today for specialist criminal defence advice on drink driving and other serious driving offences.
