Many thanks for the reply. Guess we will wait and see, according to my partner the police were nice and seemed to genuinely believe that he was not intending to drive but of course this is certainly no guarantee.

The legal limit in breath is 35 micrograms. When you say he recorded ".9 over the limit" do you mean he blew 35.9? Most forces do not prosecute below 41 micrograms. If he blew 35.9 he should have been told at the time that no action would be taken. In fact it is unusual to have a reading expressed to a decimal point. It would usually be 36.

If he was indeed over the usual threshold for action he may be charged with being "in charge" whilst over the limit. There has to be evidence of driving to support a "driving over the limit" charge. The In Charge offence does not carry a mandatory disqualification but 10 points if no disqualification is ordered.

Although the police have six months to begin court action they do not usually take that long for an excess alcohol charge.

Edited by Middleman on 21/04/2017 at 18:01

Yes, Mr Loophole (Nick Freeman) may be able to assist but I doubt it.

Firstly, I doubt it was less than 30 minutes between his last drink and taking the evidential test at the Nick. By the time he’d been transported there and checked in I would imagine that 30 mins would be long gone. Secondly, whilst the “driving” charge may be difficult to maintain the “in charge” offence may be a little more sticky. It is not for the prosecution to argue that the vehicle could not have been driven. They simply need to prove that the defendant was “in charge” of the vehicle and that he was over the limit. There is a statutory defence to the charge but the onus falls on the defendant to prove:

“…that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit.”

So with the vehicle apparently beached he would have to prove (on the balance of probabilities) that it was unlikely he would have driven it whilst still over the limit. He would have to demonstrate how long it was likely to take to recover the vehicle and would also have to produce expert evidence to show that his alcohol level would have returned to legal levels in that time. It is not an easy defence to run. Mr Freeman may be able to help but we still don’t know just what his evidential reading was. I’ve never seen one quoted in decimal points and I’ve certainly not seen a charge laid with a reading as low as 35.9. So the OP will have to wait and see.