Article 8 WVW: driving under the influence of alcohol, drugs or medication — the test can be challenged
Driving under the influence is the most common traffic offence in the Netherlands and the most common reason for a driving licence to be seized on the spot. Article 8 WVW sets fixed limits for alcohol and drugs, but the outcome of a case is not determined by the measured level alone. The procedure around breath analysis and blood testing is surrounded by strict safeguards — and a single error can remove the entire test from the evidence.
Cooperate, but do not make a statement
Refusing the breath analysis or blood test is a separate offence (art. 163 WVW) and is punished as if you had drunk a great deal. So cooperate with the test — but you do not have to say anything about what, how much or when you consumed.
Note the times and circumstances
When were you stopped, when was the breath test, was the twenty-minute waiting period observed, had you smoked or belched? Those details determine whether the breath analysis may be used as evidence.
Ask for a counter-analysis after a blood test
After a blood sample you have the right to a counter-analysis of the second vial, within two weeks of the result. That right is rarely used and often not properly explained — we watch the deadline.
Expect two tracks
Alongside the criminal case, a CBR measure almost always follows: a course (LEMA or EMA), an investigation into your fitness to drive, or a suspension. That is a separate administrative procedure with its own deadlines. We manage both.
What does article 8 WVW say?
Article 8 contains several prohibitions. The first paragraph prohibits driving a vehicle under such influence of a substance — alcohol, drugs or medication — that you must be deemed unfit to drive properly; no threshold applies there, but the OM must then prove that you were impaired. The second and third paragraphs contain the fixed alcohol limits, the fifth paragraph the fixed drug limits.
The prohibition applies to every driver of a vehicle, so also to cyclists, e-bike riders and riders of a scooter or fat bike, and to the supervisor of a 17-year-old driver. For cyclists the same alcohol limits apply, but lower penalties.
The alcohol limits
For experienced drivers the limit is 0.5 per mille in the blood or 220 micrograms of alcohol per litre of exhaled breath. For novice drivers — as a rule anyone who has held a licence for less than five years, or less than seven years if the first licence was issued before the age of eighteen — the limit is 0.2 per mille or 88 micrograms per litre. Anyone driving without a licence is treated as a novice driver.
From 1.3 per mille (570 µg/l) for experienced and 0.8 per mille (350 µg/l) for novice drivers, the police are obliged to seize the driving licence. From 1.8 per mille (785 µg/l) the CBR suspends the validity of the licence and an investigation into fitness to drive follows.
The drug limits and combined use
Since 2017 fixed blood limits have applied for amphetamine, methamphetamine, MDMA, cocaine, cannabis (THC), heroin and morphine, and GHB. For THC the limit is 3.0 micrograms per litre of blood, for cocaine and amphetamine 50 micrograms per litre. After a saliva test or an eye test, a blood sample is taken by a doctor or nurse; the result comes from an accredited laboratory.
For combined use — two types of drug, or drugs with alcohol — much lower limits apply: for THC 1.0 microgram per litre, for cocaine and amphetamine 10 and 25 micrograms per litre respectively, and for alcohol 0.2 per mille. Combined use is almost always brought to court by the OM, with a community service order and a long driving ban as the starting point.
What is the penalty for article 8 WVW?
Driving under the influence is an indictable offence with a maximum of one year’s imprisonment or a fine of the fourth category, plus a driving ban of up to five years — ten years for a repeat offence within five years. Refusal of the test has its own penal provision with the same maximum driving ban.
In practice the OM works with a scale system. For an experienced car driver without a previous conviction: up to 0.8 per mille a fine of a few hundred euros; between 0.8 and 1.3 per mille a higher fine; from 1.3 per mille a fine with an unconditional driving ban of four months or more; from about 2.4 per mille a community service order with a one-year ban, rising to 100 hours’ community service and a 22-month ban at the highest levels. For repeat offenders everything moves up at least one scale and imprisonment follows more often. Drugs: for a first single use a fine of around 850 euros; for combined use 50 hours’ community service and a nine-month ban. Novice drivers and moped riders have their own tables.
Repeat offence: the licence becomes invalid by operation of law
Anyone convicted again within five years of an earlier final conviction for driving under the influence, for an offence involving more than 1.3 per mille, drugs or a refusal, loses their driving licence by operation of law (article 123b WVW). That is not a penalty imposed by the court but an automatic consequence: the licence is invalid for all categories and you must retake the driving test.
A penalty order also counts as a conviction. Precisely in a second case, therefore, it matters not to simply pay the first one and to pull out all the stops in the second. We test whether all the conditions for that repeat-offence rule are met.
Which defences are promising?
The Supreme Court requires that a "test" within the meaning of article 8 only counts as evidence if the safeguards with which the legislature surrounded that test have been complied with. For the breath analysis: a waiting period of twenty minutes after the demand, an approved and calibrated device, an authorised officer and two measurements. For the blood test: sampling by a doctor or nurse, dispatch of the sample "as soon as possible" to an accredited laboratory, and a correct notification of the right to a counter-analysis. If one of those strict safeguards is breached, the result is unusable and an acquittal follows.
We also test whether you were in fact the "driver" (stationary with the engine running, pushing, sleeping in the car), whether you really were a novice driver, whether in the case of medication the first paragraph can be proven at all, and whether the suspicion and the demand for the test were lawful. In the case of a refusal: was there a valid order, and was cooperation medically possible?
The CBR: LEMA, EMA, investigation and suspension
The police report every arrest for alcohol or drugs to the CBR. From 0.8 per mille the CBR imposes a light educational measure on alcohol (LEMA), from 1.0 per mille the heavier EMA, and from 1.8 per mille — or on refusal, or on a third arrest within five years — an investigation into fitness to drive with suspension of the licence. For drugs an educational measure on drugs or an investigation follows. For novice drivers all limits are lower. The costs are yours.
A CBR decision can be challenged by objection and appeal, with short deadlines. The alcohol interlock no longer exists. We manage the criminal case and the CBR track together, so that a statement in one procedure does not harm you in the other.
More on driving under the influence
Has your licence been seized? Read our pages on a seized driving licence (in Dutch). Driving under the influence also works as an aggravating factor under article 6 WVW and article 5a WVW. The overview is on the page traffic offences.
Immediate help after an arrest for driving under the influence
The OM decides on your licence within ten days and the deadline for a counter-analysis is two weeks. Call +31 6 20 44 68 60 or use the contact form; we request the police report and the calibration report and assess your chances the same working day. The first phone call is free.
Frequently asked questions
From how much alcohol am I criminally liable?
From 0.5 per mille (220 µg/l breath alcohol) for experienced drivers and 0.2 per mille (88 µg/l) for novice drivers. Anyone driving without a licence also falls under the low limit.
When is my driving licence seized?
Mandatorily from 1.3 per mille (570 µg/l) for experienced and 0.8 per mille (350 µg/l) for novice drivers, and on refusal. The OM decides within ten days on return; if necessary we file a complaint with the court.
Can I challenge the breath analysis?
Yes. The twenty-minute waiting period, the calibration and approval of the device, the authority of the officer and the double measurement are strict safeguards. A breach makes the result unusable.
What happens if I refuse to blow?
Refusal is a separate offence and is punished as if you had well over two per mille, including a driving ban of nine months or more and a CBR investigation. Refusing is therefore almost never wise.
I smoked cannabis. From when am I liable?
From 3.0 micrograms of THC per litre of blood for single use, and from 1.0 microgram for combined use with alcohol or other drugs. THC remains measurable for days after use.
What is combined use and why is it so serious?
Two types of drug, or drugs with alcohol. The limits are then much lower and the OM almost always brings the case to court, with a starting point of 50 hours’ community service and a nine-month driving ban.
I have been arrested again within five years. What does that mean?
Stricter starting points and, above 1.3 per mille, with drugs or on refusal, loss of your licence by operation of law (article 123b WVW). You then have to retake the driving test. Precisely now a thorough defence pays off.
Which measure does the CBR impose?
From 0.8 per mille a LEMA, from 1.0 per mille an EMA, from 1.8 per mille or on refusal an investigation into fitness to drive with suspension of the licence. For drugs an educational measure on drugs or an investigation. The costs are yours.