Death by careless driving under the influence
Date Updated: January 2012
Title: Road traffic offences
Offence: Causing death by careless driving whilst under the influence of drink or drugs
Legislation: Road Traffic Act 1988 s.3A
Commencement Date: 1 July 1992
Mode of Trial: Indictable only
Statutory Limitations & Maximum Penalty: 14 years imprisonment with effect from 27/02/2004 (increased from 10 years imprisonment by s.285 Criminal Justice Act 2003)
Sentencing Range:
- See below for range and starting point
- DIsqualification minimum 2 years and obligatory endorsement and compulsory extended test
Relevant Sentencing Guidelines (If Any)
The SGC definitive guideline "Causing Death by Driving" applies to all offenders convicted of this offence and sentenced on or after 4 August 2008. The guideline applies to a "first-time offender" aged 18 or over convicted after trial who has not been assessed as a dangerous offender requiring a sentence under ss. 224-228 Criminal Justice Act 2003 (as amended).
Culpability & Harm
In comparison with causing death by dangerous driving, the level of culpability in the actual manner of driving is lower but that culpability is increased in all cases by the fact that the offender has driven after consuming drugs or an excessive amount of alcohol. Accordingly, there is considerable parity in the levels of seriousness with the deliberate decision to drive after consuming alcohol or drugs aggravating the careless standard of driving onto a par with dangerous driving.
The fact that the offender was under the influence of drink or drugs is an inherent element of this offence. The guideline is based both on the level of alcohol or drug consumption and on the degree of carelessness.
The increase in sentence is more marked where there is an increase in the level of intoxication than were here is an increase in the degree of carelessness reflecting the 14 year imprisonment maximum for this offence compared with a 5 year maximum for causing death by careless or inconsiderate driving alone.
A refusal to supply a specimen for analysis may be a calculated step by an offender to avoid prosecution for driving when having consumed in excess of the prescribed amount of alcohol, with a view to seeking to persuade the court that the amount consumed was relatively small. A court is entitled to draw adverse inferences from a refusal to supply a specimen without reasonable excuse and should treat with caution any attempt to persuade the court that only a limited amount of alcohol has been consumed.
The legal limit of alcohol is 35mg breath (80mg in blood and 107mg in urine)
71mg or above of alcohol/high quantity of drugs OR deliberate non-provision of specimen where evidence of serious impairment
- Careless/ inconsiderate driving arising from momentary inattention with no aggravating factors
Starting point: 6 years custody
Sentencing range: 5 - 10 years custody - Other cases of careless/ inconsiderate driving
Starting point: 7 years custody
Sentencing range: 6 - 12 years custody - Careless/ inconsiderate driving falling not far short of dangerousness
Starting point: 8 years custody
Sentencing range: 7 - 14 years custody
51 - 70 mg of alcohol/moderate quantity of drugs OR deliberate non-provision of specimen
- Careless/ inconsiderate driving arising from momentary inattention with no aggravating factors
Starting point: 4 years custody
Sentencing range: 3 - 7 years custody - Other cases of careless/ inconsiderate driving
Starting point: 5 years custody
Sentencing range: 4 - 8 years custody - Careless/ inconsiderate driving falling not far short of dangerousness
Starting point: 6 years custody
Sentencing range: 5 - 9 years custody
35 - 50 mg of alcohol/minimum quantity of drugs OR test refused because of honestly held but unreasonable belief
- Careless/ inconsiderate driving arising from momentary inattention with no aggravating factors
Starting point: 18 months custody
Sentencing range: 26 weeks - 4 years custody - Other cases of careless/ inconsiderate driving
Starting point: 3 years custody
Sentencing range: 2 - 5 years custody - Careless/ inconsiderate driving falling not far short of dangerousness
Starting point: 4 years custody
Sentencing range: 3 - 6 years custody
Aggravating & Mitigating Factors
When assessing the seriousness of any offence, the court must always refer to the full list of aggravating and mitigating factors in the Council Guideline on Seriousness as well as those set out in the table below as being particularly relevant to this type of offending behaviour.
Sentencers should take into account relevant matters of personal mitigation; see in particular guidance on good driving record, giving assistance at the scene and remorse.
Additional aggravating factors
- Other offences committed at the same time, such as driving other than in accordance with the terms of a valid licence; driving while disqualified; driving without insurance; taking a vehicle without consent; driving a stolen vehicle
- Previous convictions for motoring offences, particularly offences that involve bad driving or the consumption of excessive alcohol before driving
- More than one person was killed as a result of the offence
- Serious injury to one or more persons in addition to the death(s)
- Irresponsible behaviour such as failing to stop or falsely claiming that one of the victims was responsible for the collision.
Additional mitigating factors
- Alcohol or drugs consumed unwittingly
- Offender was seriously injured in the collision
- The victim was a close friend or relative
- The actions of the victim or a third party contributed significantly to the likelihood of a collision occurring and/or death resulting
- The driving was in response to a proven and genuine emergency falling short of a defence
Relevant Sentencing Case Law
Previous sentencing case law is superseded by the SGC guideline with effect from 4 August 2008. The following cases (Cooksley and Richardson) were the relevant cases prior to that date.
R v Cooksley and others [2004] 1 Cr.App.R(S) 1 - following advice of the Sentencing Advisory Panel
R v Richardson and others [2006] EWCA Crim 3186 - where the Court of Appeal considered the impact of the increase in maximum penalty and reassessed the starting points set out in R v Cooksley.
R v Pell [2010] 2 Cr.App.R.(s.) 103 - The victim as a woman aged 88 who was trying to cross a single carriageway road subject to a 30 mph speed limit. A breath test conducted an hour and a quarter after the accident resulted in a reading of 76 mg of alcohol in 100 ml of breath. Calculations of D's speed indicated that he had been travelling at 44 mph. He accepted that he had been drinking heavily on the day before the incident. He said that he had been driving at about 45 mph, the sun had been in his eyes and he had attempted to brake but his tyres had locked. It was shown that at the time of the accident the sun would have been behind him and there were no brake marks on the road. He had an appalling history of driving offences. A sentence of 10 years imprisonment after a guilty plea was severe but not manifestly excessive given his high level of culpability and his appalling record.
Ancillary Orders:
- Disqualification and endorsement
- Compulsory extended re-test
Consider Also:
- Minimum disqualification 3 years if previous conviction for similar offence within 10 years (s 34(3)(aa) RTA 1988
Availability of alternative verdicts (Archbold 32-58) - The offence is a "specified" violent offence within the meaning of Schedule 15 of the Criminal Justice Act 2003 and a "serious" offence for the purposes of ss 224-229 of the CJA 2003.
- The Sentencing Guidelines Council is carrying out a consultation on causing death by driving offences and will eventually publish sentencing guidelines.
Links:
- www.sentencing-guidelines.gov.uk/docs/causing_death_by_driving_definitive_guideline.pdf
- www.sentencing-guidelines.gov.uk/docs/complete_compendium.pdf
- Archbold 32-55 to 32-63
- CSR B1-7.3K
