Drink Driving – Criminal Offence or Misdemeanour, What Penalties Apply and How to Defend Yourself
Being stopped for driving after consuming alcohol is one of the most common reasons drivers seek legal advice. The consequences can be serious – from a multi-year driving disqualification to a custodial sentence – and their extent depends on the alcohol concentration, the circumstances of the stop and the defence strategy adopted in the proceedings.
Contents
- Criminal offence or misdemeanour – where the line is drawn
- What penalties apply for drink driving
- Driving disqualification – how it is calculated and whether it can be limited
- How the proceedings work – from arrest to judgment
- What a lawyer can do in a drink driving case
- Conditional discontinuance of proceedings – when it is available
- A penal order – what it is and when to contest it
- A practical example from our caseload
- FAQ
Criminal Offence or Misdemeanour – Where the Line Is Drawn
Liability for drink driving depends primarily on the concentration of alcohol in the driver’s system at the time of the stop. The law distinguishes between two states: use of alcohol and intoxication, and this distinction is fundamental to the legal classification of the conduct.
Use of alcohol arises where the blood alcohol concentration is between 0.2 and 0.5 per mille, or where the alcohol content of exhaled breath is between 0.10 and 0.25 mg/l. Driving in this state constitutes a misdemeanour under Article 87 of the Code of Misdemeanours.
Intoxication arises where the blood alcohol concentration exceeds 0.5 per mille, or where the alcohol content of exhaled breath exceeds 0.25 mg/l. Driving while intoxicated constitutes a criminal offence under Article 178a of the Criminal Code.
Drivers whose reading falls below the thresholds for the state of use of alcohol do not incur criminal or misdemeanour liability on that basis. It is also worth knowing that at the time of a stop, several measurements are usually taken at intervals – this allows it to be established whether the alcohol concentration is rising or falling, which in turn indicates whether the driver consumed alcohol shortly before driving or is dealing with a hangover. This information can be relevant when the court determines the sentence.
What Penalties Apply for Drink Driving
The misdemeanour under Article 87 of the Code of Misdemeanours carries detention or a fine of not less than PLN 2,500. The court also imposes a mandatory driving disqualification.
For the criminal offence under Article 178a of the Criminal Code, the court may impose a fine, a restriction of liberty or a custodial sentence of up to three years. A custodial sentence may be suspended where the circumstances of the case permit – but suspension is not automatic and does not follow as a matter of course. Regardless of the type of sentence, the court is required to impose a driving disqualification of at least three years. In cases of recidivism or a particularly high alcohol concentration, the disqualification may be for life.
When determining the sentence, the court takes into account primarily the level of alcohol concentration, the circumstances of the drive (time, location, traffic density, the route taken), the driver’s previous criminal record, their conduct during the proceedings and their personal and professional circumstances.
Driving Disqualification – How It Is Calculated and Whether It Can Be Limited
A driving disqualification runs from the date the driving licence document was physically seized, not from the date the judgment was issued. Article 63 § 2 of the Criminal Code provides that the period during which the corresponding measure was actually applied shall be credited against the disqualification imposed. This means that the time elapsed between the seizure of the licence and the judgment becoming final should be credited against the disqualification – ensuring that the court does this has practical significance and can shorten the actual duration of the ban by several months.
A driving disqualification may be limited to a specific category – for example, exclusively to passenger vehicles, with commercial vehicle categories excluded. This is particularly important for professional drivers whose work involves driving lorries or coaches. Obtaining such a limitation requires meeting certain conditions and properly substantiating the application.
How the Proceedings Work – From Arrest to Judgment
After the stop, the police carry out an alcohol measurement and interview the driver. The driver has the right to refuse to answer questions – a right worth exercising before consulting a lawyer. The evidence is then passed to the prosecutor, who decides whether to file an indictment. The prosecutorial stage typically takes between one and three months.
After the indictment is filed, the court may issue a penal order without holding a hearing, or may schedule a hearing date. At the hearing, the court reads out the charges, asks the defendant whether they plead guilty and whether they wish to make a statement, then hears the evidence and the parties before delivering judgment. The entire proceedings – from the stop to the judgment becoming final – typically take between several months and a year, though this varies depending on the court’s workload.
What a Lawyer Can Do in a Drink Driving Case
In drink driving cases, an acquittal is possible only in exceptional circumstances – a breathalyser reading or blood test result is evidence that is very difficult to challenge in its entirety. The aim of the defence is most commonly to minimise the consequences: to obtain a lighter sentence, to shorten the driving disqualification, to limit it to a specific category of vehicle, or – where the circumstances allow – to achieve a conditional discontinuance of proceedings.
A lawyer can take a number of specific steps. Verifying the breathalyser’s calibration certificate and the correctness of the measurement procedure is the starting point – procedural errors can undermine the reliability of the evidence. Commissioning an expert to conduct a retrospective analysis of alcohol concentration can sometimes establish that at the time of driving the concentration was lower than the first reading suggested – which may change the classification of the conduct from a criminal offence to a misdemeanour. An analysis of the route on which the driver was travelling may be relevant where there is doubt as to whether it constituted a public road.
Independently of the technical aspects, the lawyer prepares the driver for the proceedings, attends interviews, ensures that statements are correctly recorded and negotiates the terms of any voluntary submission to sentence or conditional discontinuance.
Conditional Discontinuance of Proceedings – When It Is Available
A conditional discontinuance of proceedings (Article 66 of the Criminal Code) ends the case without a conviction, while imposing certain obligations on the perpetrator – typically a financial contribution to the Fund for Assistance to Crime Victims, a driving disqualification during a probationary period or an obligation to make good the damage. A conditional discontinuance is not a conviction – it does not appear in the National Criminal Register as a conviction.
It is available where the degree of fault and the social harm of the conduct are not significant, and where the perpetrator’s personal circumstances and previous conduct indicate that the law will be respected despite the discontinuance. In drink driving cases, a conditional discontinuance is realistic primarily upon a first offence, with a relatively low alcohol concentration, a sound personal and professional situation and no other aggravating circumstances.
A Penal Order – What It Is and When to Contest It
A penal order is issued by the court without holding a hearing, solely on the basis of the materials in the case file. It is served on the defendant by post. From the date of service, a seven-day period runs within which a contestation may be lodged.
Lodging a contestation causes the penal order to lapse and the case to be referred for a hearing. The decision whether to contest depends on the content of the order and the circumstances of the case. If the sanctions imposed are favourable and correspond to what could have been expected from full proceedings, contesting the order may not be in the defendant’s interest. If, however, the penal order is unfavourable or there are grounds for an effective defence at a hearing, a contestation is worth considering.
A Practical Example from Our Caseload
A driver from the Poznań area was stopped with a breathalyser reading close to the boundary between the misdemeanour and criminal offence thresholds. The firm commissioned verification of the device’s calibration certificate and engaged an expert to conduct a retrospective analysis of alcohol concentration. The analysis revealed irregularities in the measurement procedure and indicated that the driver’s blood alcohol concentration at the time of driving may have been lower than the initial breathalyser reading suggested. The court classified the conduct as a misdemeanour rather than a criminal offence – which resulted in significantly lighter sanctions and a shorter driving disqualification.
FAQ
If I plead guilty, will I receive a lighter sentence? Pleading guilty is a mitigating factor and can result in a lower sentence or a shorter driving disqualification. It also facilitates an application for a conditional discontinuance. It does not mean, however, that a driver should forgo legal assistance – even when pleading guilty, it is possible to negotiate more favourable terms for a voluntary submission to sentence or to seek discontinuance of the proceedings.
Does a drink driving case always go to court? As a general rule, yes. If the law enforcement authorities consider that the conditions for criminal liability are met, the case must end with a final court judgment. The exception is where the prosecutor finds no basis for filing an indictment – which rarely happens in cases with an unambiguous breathalyser result.
Can I appeal against the seizure of my driving licence? Yes. A driver may lodge a contestation against the prosecutor’s decision to seize the driving licence. The contestation must be lodged within seven days of service of the decision. In practice, contestations are rarely successful, but lodging one allows the driver to formally signal the professional and personal difficulties caused by the loss of the document, and the period of licence seizure counts towards the disqualification subsequently imposed in the judgment.
How long is my licence seized before judgment? The licence is seized from the moment of the police stop until the judgment becomes final. The entire period is credited against the driving disqualification imposed in the judgment, provided the court takes this into account in the terms of its decision. Ensuring that the court credits this period is one of the defence lawyer’s fundamental tasks.
Contact Us
A drink driving case requires prompt action and a considered strategy – from the very first interview, a driver’s decisions can affect the outcome of the proceedings.
It pays to be properly prepared: both in knowing what you can claim and in having a clear strategy.
We handle cases for drivers in Poznań and across the Wielkopolska region, with in-person and online consultations available for clients elsewhere in Poland.
Adwokat Marta Krzyżanowicz and Adwokat Michalina Koligot Law Firm “Adwokat dla Kierowców w Poznaniu”
ul. Adama Mickiewicza 18/3, 60-834 Poznań
tel. +48 795 001 536 · +48 531 335 713
kontakt@adwokatdlakierowcy.pl · www.adwokatdlakierowcy.pl
This text is for general information purposes only and does not constitute legal advice. Every case requires individual analysis.