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Legally Explained: How to drink and drive and (not) get away with it [via Mint]

Drink driving: The legal risk
Drink driving: The legal risk

Hot on the heels of Salman Khan’s liberation, criminal lawyer Vagisha Kochar explains how drink driving laws work in reality.

India has the world’s deadliest roads. More than 130,000 people were killed on its roads last year. In 2006, India overtook China as single largest contributor to the global number of road deaths.

Drunken driving has been responsible for at least 70% of all fatal road accidents in Delhi, which reports between 1,500 to 1,700 road fatalities and 6,000 to 75,500 grievous injuries in road accidents every year.

We explain what the law has to say.

So, as I sip my drink thoughtfully, tell me, how many drinks before I’m forbidden from taking the wheel?

First of all, let’s assume you’re of the legal Indian drinking age, which ranges from 18 to 25, varying from state to state.

(Delhi and Mumbai have the highest legal age, at 25 years.)

In the US or the UK, one can drink and drive with less than 80mg of alcohol per 100ml of blood.

In India, the permissible blood alcohol content (BAC) is set at 0.03% per 100ml blood. That works out to 30mg of alcohol per 100 ml of blood.

Figures will vary for everyone, but for ready reference, an average male weighing about 65kg can theoretically stay within the legal limit if he consumes two pints of beer (equivalent to 660 ml), or one large whiskey peg (60 ml), or two glasses of wine (200 ml).

The body takes about an hour to process 29.5 ml of alcohol. Since every type of liquor has a different alcohol content, to be able to drive again without your reason and coordination being affected by it, you must wait for at least 90 minutes after a pint of beer and three hours after a large whisky or two glasses of wine.

If you’re busted driving with more than this limit, you can be booked for violating Section 185 of the Motor Vehicles Act, 1988, and will have to pay a fine of Rs.2,000 and/or face a six-month jail term.

If you are booked for a second violation within three years, you might have to pay up to Rs.3,000 and/be jailed for two years.

Two years and Rs.3,000? That’s it?

Well, in a bid to tighten the noose, the Union cabinet in 2012 approved toughening of penalties in the Motor Vehicles Act for very drunk drivers and for repeat offenders. The bill was passed by Rajya Sabha but lapsed before it could be voted on in Lok Sabha.

It proposed up to Rs.10,000 in fine and four years in jail for repeated drunken driving with a BAC of over 150mg.

The law commission has also recommended stronger penalties, and the government is said to be close to finalizing new amendments to the Act that may include the provision of points docked on the licence for each offence, with the licence being suspended after it reaches a set number of points.

That’s a bit stiff. Now, I’m sure I won’t ever want to drink again after today, but unfortunately I am already five times the permissible limit and need to get home.

I would say, call an Uber or Ola cab, or jump into a black-and-yellow taxi or a rickshaw or something.

If I’m sober enough to ask you these questions, surely I’m sober enough to drive? I know a few back alleys the cops never check.

You do know that’s a bad idea: you’re endangering yourself and everyone else. At five times the limit, you’re much more likely to have an accident and kill someone.

I just got stopped by the cops... looks like they changed their checkpoints. Should I take the breathalyzer, then warm his palm with 500 bucks and drive away with dignity?

I can’t comment on whether that works where you live.

I could bribe him with 2,000 bucks?Or I could ask him whether he knows who my dad is?

You could end up being arrested.

I can lock myself up in my car till the alcohol wears off, or the cop gets bored, maybe?

Won’t work.

Why? I refuse to take the breathalyzer, it’s dirty! And my lawyer friend once told me that a breathalyzer test has to be carried out only when the person is driving or attempting to drive the vehicle: i.e., now, not later.

When a person is arrested in connection with an offence punishable under section 185 Motor Vehicles Act, they shall, within two hours of his arrest, be subjected to a medical examination by a registered practitioner, failing which they shall be released from custody.

The offender is required to give a blood specimen for a lab test either if they refuse/fail/omit to take the breathalyzer or if the breathalyzer indicates the presence of alcohol. Usually just a breath test is conducted at the spot with a breathalyzer.

If refused, the offender is given an opportunity to undergo a breath test at a police station after arrest.

If the cop suspects your refusal to take the breathalyzer is due to drunkenness, you can be placed under arrest without a warrant and you will be taken to the nearest hospital/police station to take a blood alcohol test.

But even if you manage to somehow get out of undergoing any blood alcohol test when requested to do so, a presumption of drunkenness is drawn under section 205 against you, which is admissible evidence.

And if the cop is really out to get you after your refusal, you could get booked under Section 279 IPC for rash driving. Bail will come easy, it being a bailable offence. Next you plead guilty before the judicial magistrate and pay the fine, or go to trial.

But that’s not all. According to latest trends, the cop could also book your chum riding shotgun or in the back for abetting you, under Section 188 of the Motor Vehicle Act (i.e., letting you drive whilst drunk).

Actually, all is well. I made a quick phone call. My dad knows the commissioner of police, the traffic cop is now rich and I’m on my way home to finally sleep in peace.

Well, that’s nice for you that you have friends and family.

I spoke too soon. Maybe I’m more drunk than I thought. I was driving back and it was a blind turn and I remember someone walking in the middle of the road. I think I may have really hurt him.

At one end of the scale, law enforcers are now endeavouring to get stringent with drunk offenders. You may have really hurt that person, and there is a risk that he died.

You must be booked under Section 308 IPC for attempt to commit culpable homicide. Go to jail, you get no bail. Moreover, you could be imprisoned for up to seven years, if convicted.


Well, if the prosecutor is feeling lenient and your victim only suffered minor injury, you may be prosecuted under Section 337 IPC for causing hurt by an act endangering life or personal safety of others.

If they really got hurt, you may be prosecuted under Section 338 IPC for causing grievous hurt by an act endangering life or the personal safety of others. Both offences are bailable, and bail usually means no jail-time until the trial is over. You can buy the victim treatment and compensation if they are willing as the offence can be “compounded” with permission of the court and the victim, by settling via a money payment to the victim in lieu of other liability.

I hit the pedestrian quite hard. Maybe that person is dead? Is this the end of my world?

Go back there and make sure they get to a hospital immediately; maybe it’s not too late.

What about the “driver” defence?

I couldn’t possibly comment on what Bollywood stars allegedly did not get up to, but if you are blessed and a horrible person, maybe a driver or bodyguard will take the bullet for you in exchange for some money?

But if that is your strategy, I suggest you hide under your car. The driver, presumably not being drunk, had neither knowledge nor intention and he’ll only get prosecuted under Section 304 A IPC for rash and negligent driving.

He may end up getting convicted and do two years of prison time, unless his lawyer (whom you’ll presumably pay for) can use things, such as the width of the road, lighting, density of traffic, a burst tyre or other circumstances to argue that your “driver” was driving very reasonably indeed and that the victim suddenly and unpredictably jumped out of an alley straight into the offending car.

I called my driver to take the rap for me, but the cops reached the site of the accident before he did. And they are about to breathalyze me.

After having consumed alcohol, you are presumed to have knowledge of the consequences of drunk driving. Drunk driving is likely to cause death. Negligence coupled with intoxication entails liability under Section 304 (II) IPC—culpable homicide not amounting to murder—which could send you to prison for about a decade (State vs Sanjeev Nanda).

Help. Defend me, someone? I was drunk!

The law says that drunkenness is a kind of madness for which the madman is to blame.

You took the booze, now take the noose.

But alcohol brought out the automaton in me. Mercy in the name of diminished responsibility?

A drunken person is presumed to have the knowledge equivalent to that of a sober man (Basdev vs State).

An act does not become involuntary simply because its consequences were unforeseen.

Perhaps just a decade in jails for you; mercy granted.

But I was completely wasted and incapable of forming any mens rea (a guilty mind), let alone coherent thought.

The law says that such rash or negligent act of driving in an inebriated state must be preceded by knowledge that such act is likely to cause death.

Voluntary intoxication of such degree that you were incapable of forming the required specific intent required, is already only a limited excuse to reduce your offence from outright murder to culpable homicide not amounting to murder.

Marriage has made me an alcoholic...of course, this was an accident.

The only possible excuse alcohol ever gives you could be delirium tremens—a rare psychotic and often fatal condition caused when chronic alcoholics stop drinking, which can produce such a degree of madness as to render a person incapable of distinguishing right from wrong, which may relieve them from criminal responsibility.

My drink was spiked (against my will, without my knowledge).

Now that is the only thing that could get you off, as being “involuntary intoxication”. We can’t presume either knowledge or intention in such a case.

How about I blame the prescription drugs I’ve been taking?

There’s a list of prescription drugs and other narcotics that are deemed to be similar to alcohol for the purpose of driving offences.

Can I say that I was rushing my friend to hospital?

There is a general defence under Section 80 of the IPC, when an accident occurs when doing a lawful act (though you’d need pretty good evidence that this is what was happening).

So I’m definitely going away for 10 years then? How do all those celebrities get away with it?

Well, once you’re within the system, as it were, it’s quite hard to get out. Lawyers can delay the process and try to get you bail while awaiting your final judgment, so you may be able to lead a fairly normal life for anything from a while to a decade, or more. And it does help having expensive lawyers who can call dozens and dozens of witnesses, make some witnesses change their story, or otherwise obfuscate what really happened in order to establish reasonable doubt.

On top of that, the longer you wait, the more likely it is that witnesses will die, begin forgetting the details of what happened, police will lose case records and files or that other discrepancies will emerge.

Is there absolutely nothing a lawyer can do to keep me out of jail forever?

You might get lucky but the odds aren’t great.

As many as 295,967 drunken driving cases were registered between 2006 and 2014 and Rs.45.55 crore of fines were collected from offenders. Out of this, 58,232 drivers have been jailed since 2007, and the driving licences of 48,601 offenders have been cancelled.

In the first six months of 2015, more than 15,000 convictions have been handed out. You could also decide to just take your punishment that’s due and plead guilty and get it over with. But most lawyers would advise you against that, and you’d probably agree when it’s a decade of your freedom on the line.

Turns out this was all just an alcohol-induced nightmare. I think I’m done with drinking.

Well, you could still drink. Just do it responsibly by not driving when you’re drunk.

Vagisha Kochar is a lawyer practising criminal law in the Delhi courts.

This article was first published in Mint. Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

Photo by John Hill

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