Successful Appeal Against Drink Drive Sentence

As many readers will no doubt be aware drink driving is a summary only matter, which is ordinarily dealt with by the Magistrates' Court.

It is an offence under section 5(1)(a) of the Road Traffic Act 1988 for a person to drive a motor vehicle after consuming so much alcohol that the proportion of it in their breath exceeds the prescribed limit (35 microgrammes of alcohol in 100 millilitres of breath). The maximum penalty for the offence is 26 weeks' custody and/or an unlimited fine.

For anyone convicted by the Magistrates' Court there is an automatic right of appeal to the Crown Court. As mentioned in our earlier article, an appeal can be made against conviction or sentence.

A few days ago I was out on my Christmas week travels and thought I'd pop into the Crown Court to see the appeals that were listed that afternoon. I didn't make any notes, but there was one case - that of a drink driver - that is particularly memorable because of its circumstances and the apparent harshness of the sentence imposed by the Magistrates. I was away from my normal stomping ground, so did not recognise the Justices on the appeal bench.

The middle aged appellant, who was challenging the sentence imposed by the Magistrates' Court, was observed by police driving her car very slowly on a dual carriageway. The police pulled over her vehicle, breathalysed her and arrested her when she failed the roadside test. At the police station she provided an evidential specimen of breath containing 133 microgrammes of alcohol in 100 millilitres of breath, which was just short of four times the legal limit mentioned earlier.

The appellant, who was of previous good character, had appeared before the Magistrates and admitted the offence. Referring to the Sentencing Guidelines the Magistrates correctly placed the offence in the most serious category, which has a starting point of 12 weeks' custody and a range of a high level community order to 26 weeks' custody. It also attracts a disqualification of between 29 and 36 months.

The Magistrates decided to impose a 6 week immediate custodial sentence and 34 month disqualification. The appellant had clearly been granted bail pending the outcome of the Crown Court appeal.

Addressing the appeal bench, the appellant's barrister explained that she was of previous good character, had stable employment and responsibility for looking after her teenage daughter and grandchildren. The appellant had, quite sensibly, been open and honest with her employers, who had indicated their continuing support for her regardless of the outcome.

The appellant had gone through a recent rough patch and had taken to drinking at home in the evenings "as a crutch" to get her through the night. When she was stopped by the police, she was still under the influence of alcohol having had a particularly unsettled evening and drinking into the early hours of the morning. She was genuinely remorseful, had cooperated from the outset and you could see the terror on her face as she stood in the dock.

From the circumstances described during the appeal, quite how the Magistrates arrived at an immediate custodial sentence is beyond me. Here was a woman who had been in no trouble at all for her forty-plus years on Earth, who was making a positive contribution to society, had a supportive employer, loving family and had made a genuine mistake, albeit a potentially costly one. Notwithstanding the fact that the offence crossed the custody threshold, this was a textbook case where a suspended sentence would have been appropriate.

Fortunately the appeal bench was of the same mindset and within one minute, no exaggeration, had returned to deliver its verdict that the 6 weeks' custody should be suspended for 12 months instead of immediate. The disqualification period, which was never in dispute, was kept at 34 months.

A good day for justice, but shame the appellant and her family had to endure intervening weeks of uncertainty. We cannot be sure how her case was mitigated at the Magistrates' Court, but on the face of things it is disappointing that the original bench was so out of tune with its sentencing.