Driving Whilst Unfit through Drink or Drugs

Driving whilst unfit through drink or drugs is a serious motoring offence which carries the same penalties as drink driving and drug driving. The offence of driving whilst unfit is seldom preferred to an offence of drink or drug driving, however, it remains viable in circumstances where procedures may have been conducted incorrectly, or where evidential specimens may not be reliable.  

This is because the prosecution does not need a specimen in excess of the prescribed or specified limits to be successful in a prosecution for this offence.  

The Legal Framework 

Under section 4(1) of the Road Traffic Act 1988, it is an offence to drive or attempt to drive on a road or other public place whilst unfit to drive through drink or drugs.  

What Constitutes Being “Unfit” 

Section 4(5) of the Road Traffic Act 1988 outlines that for the purposes of a driving whilst unfit allegation, a person shall be taken to be “unfit” to drive if their ability to drive properly is for the time being impaired.  

What Needs to Be Proven for Driving Whilst Unfit through Drink or Drugs 

For a charge of driving whilst unfit to be successful, the prosecution would need to establish the following criminal elements of the offence beyond all reasonable doubt: 

1. That the defendant was driving a motor vehicle on a road or public place; and  
2. That the defendant was unfit to drive through drink or drug. 

The main hurdle the prosecution will need to overcome is establishing that the defendant was “unfit” to drive. The prosecution will have to establish that any unfitness relates to the time of driving. Furthermore, it is not enough for the prosecution simply to establish that a defendant was “unfit” to drive, they must also establish that they were unfit through either drink or drugs.  

This therefore creates a burden on the prosecution to establish a causal link between the consumption of drugs or alcohol and the unfitness to drive, rather than some other prevailing factor.  

How Can “Unfitness” Be Established? 

There are a number of ways for the prosecution to infer a defendant was impaired. These include but are not limited to: 

• Evidence of an accident.  
• Evidence of a roadside test or evidential test.  
• CCTV or Body Worn Video evidence of demeanor.  
• Witness evidence, including an officer’s observations during any “fitness” test.  
• Verbal admissions or admissions in interview.  

Fitness Tests 

Sometimes the police will conduct a “Field Impairment Test” (FIT) to determine whether a suspect is unfit to drive. This usually is completed with an MGDD/F form and does not need to actually occur at the roadside. The power to conduct such a test is outlined in section 6B of the Road Traffic Act 1988.  

Whilst FIT tests can be relied upon in evidence, they are not necessarily reliable. The Faculty of Forensic and Legal Medicine has previously removed the FIT tests from their assessments as the tests have never been scientifically tested or statistically calibrated using a control group.  

Defences to Driving Whilst Unfit  

There are several defences that may apply to a driving whilst unfit case:  

Positive Correlation 

As the prosecution must establish a causal link between any drug or alcohol and unfitness to drive, if there is any other explanation for the alleged unfitness that can be supported by evidence/medical evidence, this may assist in challenging the case against you.  

Procedural Errors  

The police must follow strict procedures and if such procedures were not complied with, it may render evidence inadmissible, which could lead to your acquittal.  

‘Hip Flask’ Defence  

If you consumed alcohol or drugs after driving but before being tested, this could explain why you were unfit through drink or drugs, even though you were not unfit whilst driving.   

No Evidence of Driving  

The prosecution must prove that you were driving or in charge of the vehicle. If there is insufficient evidence, the case may be dismissed.  

Private Land 

For the offence to be committed, it must occur on a “road” or other “public place”. If the court find that the location of the alleged offence is a private place, you are entitled to be acquitted.  

Penalties for Driving Whilst Unfit  

The penalty for this offence is dependent on alleged level of impairment and factors indicating higher culpability, such as driving a goods vehicle.  

Other circumstances will be taken into consideration, however, if convicted a defendant can expect to receive the following as a minimum:  

• A 12 month’s disqualification from driving and an unlimited fine.  
• The minimum penalty instantly increases to a three-year disqualification when it is a second relevant offence within ten years.  

What to Do If You Are Charged with Driving whilst Unfit  

If you are facing an allegation of driving whilst unfit through drink or drugs, it is crucial to seek legal advice immediately. Do not assume that a guilty plea is your only option. Early intervention can make a significant difference to the outcome of your case.  

Our expert motoring solicitors are here to help, offering confidential and professional legal support at every stage of your case.   

Contact Olliers Solicitors today for a confidential consultation. We are here to help you understand your rights, assess your options, and fight your corner.  

Contact our specialist motoring team by completing the form below, emailing info@olliers.com or telephoning 0161 8341515 (Manchester) or 020 3883 6790 (London).