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First-time offence; drunk in charge; blew 126 -- how likely is prison?

Hi, all.

I drove (sober) for a boozy night out at a bar. I consumed a large amount of alcohol. I do not remember most of the night past 1am.

The police found me in the front seat of my car at 3:32am. I do not remember this. At some point, I must have left the bar and stupidly gone into my car. However, I do not remember what happened. I don't know if I went out to sleep it off and had been asleep in my car for some time before the police found me, or if I'd just got into the car and the police saw me. All I am certain of is that I didn't drive anywhere, as the car, when I picked it up the next day, was in the exact same parking spot. I also know I wasn't driving, as I was charged with being drunk in charge and not for drink driving.

I am incredibly remorseful for my actions and I can't believe I didn't order a taxi as I usually do. Unfortunately, I honestly cannot remember my intentions. I'd like to say I intended on "sleeping it off", so to speak, but I cannot guarantee that. Even if I could, my reading was 126ug/100ml, which is exceedingly high; it is unlikely I would have been under the limit when I woke up.

I suspect the only way to find out some inclination of my intentions would be to see the evidence the police have and their statement as to what state they found me in. I wasn't thinking straight at the station, and thus, I didn't ask questions; I wanted to get out of there, ASAP. I will be seeking legal representation before my court date. Will they be able to gain access to the police statement and evidence against me beforehand, so I can work out the best plea before first appearance? (I don't know how these things work, and it's messing with my head).

The principal thing I am horrified by is the prospect of prison. I have read the sentencing guidelines for DR40, drunk in charge with excess alcohol. It says for 120ug and above, a custodial sentence of six weeks (not 26 weeks as my charge is drunk in charge not drink drive) is a theoretical possibility. This disturbs me to no end, as you can imagine. I understand that it's at the top of the range, and the starting point for my band is medium-level community order.

I want to ask how likely custody is. I know this depends on aggravating and mitigating factors. I will obtain good character references, which I assume is mitigating. The fact that I wasn't driving seems to obviously be mitigating. I will turn up well-dressed and respectable and polite. What else could potentially be mitigating? When it comes to aggravating factors, obviously I wasn't driving, so there's the lack of that. I suppose it will turn on what the police state that they found; whether the keys were in the ignition and whatnot. This will suggest my intention to drive. Also I am at the lower range of this band, at 126; does that make a more lenient sentence likely compared to if everything else was the same but I had a reading of 140?

I have committed no criminal offences in my life. I committed one motoring offence for speeding five years ago, for which I took a speed awareness course and got no points.

I know that solicitors have to advise me that they can't guarantee avoiding a custodial sentence, to cover their bases. But realistically, empirically, how common is it for a first-time offender with a drunk in charge (and not drink drive) charge to be sent to prison, assuming found guilty. Does this happen? If it does, does anyone know roughly what proportion it is? I've heard references on this sight to it being "uncommon" or "seldom used", but how uncommon and how seldom used is that? I'm tearing my hair out over it, and any input would be appreciated.

In my experience, prison would be most unlikely in your circumstances, but you may well get a community order.
by “most unlikely” I mean that realistically it isn’t going to happen.
you would have been over the limit until well into the afternoon so unless you can show that you would not have driven before then, your option of putting forward the defence of “unlikely to drive whilst still over the limit” is not going to happen.
you will be given the evidence that the police will rely on at court on the day. This will give our chance to have a quick scan through and taper what you say to what the prosecution will be putting forward. Mitigation with references and putting forward that at least you had 5he sense to not try to drive home will avoid prison and help to limit the length of your ban. In theory, for drunk in charge, the magistrates have discretion to not disqualify but award 10 points but that is not going to be the case for you. Also the disqualification can start at 6 months rather than the minimum 12 months for drink DRIVING but you are going to get more than that for 126.
make sure your solicitor asks for you to do a DrinkDrive Rehabilitation Course before the case is finished. This can reduce your ban by up to 25%, but it has to be offered, and accepted, on the day. It cannot be offered once your case has finished in court.


Active member
Think about your “found guilty” statement - it doesn’t work like this.
You will plead guilty or not guilty when you first appear, after being shown what the case is against you. If you plead not, then the case is adjourned till a later date. The same evidence will be used in the next appearance.
if you plead guilty, it will be resolved then and there. If you plead not, and are still found guilty next time, your sentence will be worse.

i made a big update on my other thread on what happened to me today, but it didn’t post. Basically pleaded guilty to “drink driving” and was expecting prison. Got 30 month ban and 200 hours of community service. Unless you think you really aren’t guilty of drunk in charge, then pleading not guilty is a bad idea.
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