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Do you get a criminal record for drink driving?

Updated: Mar 8, 2023



YES, BUT POSSIBLY no.


Let me explain.


Drink driving prosecutions are divided into categories. These categories determine what disqualification period you will get if you’re convicted.


If you’re convicted. Nothing is inevitable, despite what you may have heard.


The category (disqualification period) is dependent on how much alcohol was in your breath, blood or urine.

That is the only thing that your potential disqualification depends on.


Nothing else.


If your alcohol limit falls within certain limits,
the disqualification period applicable to that limit
is what you get.
No more, no less.


Not your lack of previous convictions, not your responsibilities as the sole breadwinner, not how much charity work you do.


Just the level of alcohol in your system.


If you are convicted, you will be disqualified.

That is a guarantee.


IT'S A VERY UNPLEASANT thought I know but imagine that you have been convicted.

Imagine that the level of alcohol in your blood was 120mgs.

The legal limit is 50mgs. You now face a mandatory disqualification.

You will be disqualified for 2 years, no more, no less.


If you decided to plead guilty right away, at the very beginning, you’d get 2 years off the road.


If you fought the case all the way to the bitter end, but lost, you would still get 2 years off the road.


So no matter how you approach this case you’ll get the same outcome.



I get asked this question quite a lot.


It goes something like this: “What if I plead not guilty, and am found guilty, won’t the Judge be mad at me?”

No. Not unless you were rude or disrespectful in court.

Of course not.


Or, “If I plead not guilty and am found guilty, will I get a longer disqualification?”

The idea seems to be that if you fight the case and lose that the Judge will somehow give you a higher disqualification, as a sort of punishment for wasting their time.


Many people seem to think that this is a possibility.

But it’s not.

It can’t happen.


The law sets out the disqualifications to be applied if a person is convicted.

If your alcohol limit falls within certain limits, the disqualification period applicable to that limit is what you get.


No more, no less.



CONVICTIONS CAN ONLY be applied by a court.

That seems rational but what happens if you get a speeding fine and pay it?

Have you just received a speeding conviction?

No.


If you get a speeding ticket and you pay it on time, that is not a conviction for speeding.

But if you get a speeding ticket and you don’t pay it on time you’ll get a summons for court. If you lose your speeding case in court, that is a conviction for speeding.

It's a conviction because it was handed down by a court.


So if you’ve been arrested for drink driving and are over the limit, will you always go to court and face the risk of a conviction?


No.






What is a Fixed Penalty Notice for DD?


In short, if the alcohol level in your breath, blood or urine is within certain limits you are entitled to get a fixed charge penalty notice (FCPN).


Spoiler alert, those “certain limits” are low.


An FCPN gives you the chance – if you qualify - of paying €200 and being disqualified from between 3 and 6 months. That’s a significant improvement on a 1,2 or 3-year disqualification.


The advantages are obvious.


Given a choice almost everyone would choose the punishment that exposes them to the least damage.


A choice between a 2-year disqualification or 3 months, is no choice at all.


The only problem is that certain conditions must be met before you're eligible for a FCPN.

The most obvious one is the level of alcohol in your system.


Once again the level of alcohol in your system is the key metric here.

As long as your alcohol level is within certain low levels you may qualify.


But if your reading is high, you won't.


First, limits.


The limit for alcohol in your blood is 50mg.

Provided you hold a driver's licence and your reading does not exceed 80mgs you're entitled to receive an FCPN.


This is usually posted (although it can be delivered) and once you get it and pay the fine, you'll be disqualified for 3 months.

The obvious disadvantage is that you're off the road for 3 months.


But there are advantages and they are significant.


Firstly, by paying the FCPN you're off the road within a few weeks. The traditional court route can often take months before you get a summons.

With the FCPN method, you go off the road early and finish early.


Secondly that’s the end of it: there will be no further prosecution once you pay the fine and go off the road.


Thirdly - and most importantly- the FCPN route is guaranteed to leave your record intact.


I'll give an example.


If you're summoned to court and you lose, you will be convicted of drink driving.

This is guaranteed. There are no exceptions. None.


But the FCPN route -provided you qualify- is far different, and far more appealing in at

least one crucial area.



I ADVISED A GENTLEMAN who had been arrested for drink driving. He was a very successful businessman who had been arrested in Galway. He was from Galway but lived in South Korea.


He was home to attend a family funeral. He was stopped at a checkpoint and failed the roadside test.


He was arrested and later gave a breath reading in the Garda station of 37mgs. The limit is 22mcgs.


As his reading was less than the maximum amount allowable for an FCPN (44mcgs) he was eligible for a FCPN. In his case because he exceeded the 3- month disqualification window (35mcgs) he couldn't avail of the 3 month disqualification period.


Once you come within the bracket of 35mcgs - 44 mcgs the FCPN period is 6 months.

But the maximum for breath is 44mcgs. Beyond that you get a summons for court.


There was one complicator: he had to avoid a conviction. If there was any risk that he might end up with a conviction he would fight the case in court.


If he paid the fine would this be regarded as a conviction in law? If it was, he would have to notify the authorities in South Korea on his return.


Worse, the special (gold) passport which he possessed that gave him preferential status in airports would be in danger. Getting a criminal conviction was something he absolutely had to avoid.


The limit is everything.
The law doesn't care if this is your first time getting into trouble
or that you've never even received a parking ticket:

I spoke to two barristers that I work with quite a lot. Both Alan O' Dwyer B.L and David Staunton B.L. were clear: convictions can only be imposed by a court.


All of the leading case law and textbooks concluded that as the issue would not be finalised in court (i.e. you could pay the FCPN and avoid court) it could not be said to be a conviction, as only courts can record convictions.


There was no question in his mind now that this was the route he would take: not receiving a conviction was the greatest benefit.


But what happens if you qualify to receive a FCPN but don't get it? After all, post does go missing on occasion.


If this happens it seems to act as a full defence. In other words, if you qualify for a FCPN, don’t get it, you'll end up getting a summons to court. This would expose you to double the disqualification you would have got if you had received the fine as well as - far worse- a conviction.







So the law accepts that if you're entitled to get an FCPN but don’t, and if you give evidence to this effect, then the prosecution should be struck out.


Why would you have to give evidence that you didst receive the FCPN? Because the law (s.29 Road Traffic Act 2010) contains a "presumption".


It is presumed - "until the contrary is shown"- that not only was the FCPN posted to you but that you paid it. So, where you were entitled to get an FCPN but didn't, the Judge will want to hear from you under oath in the witness box that you didn't get it.


If the Judge is satisfied the drink driving prosecution will almost certainly be struck out.


But remember, the FCPN route is only available to those who are slightly over the limit.

The limit is everything: the law doesn't care if this is your first time getting into trouble or that you've never even received a parking ticket: you can only go down the FCPN route if your alcohol reading is within certain levels.


But if you qualify you might be able to get through this thing without any conviction.





References


Picture 1: Lord Denning, Master of the Rolls, (1899-1999).

Picture 2: The Old Bailey, London.

Picture 3: Honore Daumier, Two Lawyers Conversing.

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