Charged With Drink Drive or Excess Alcohol?

So, you have been arrested & charged with a drink drive offence? It can feel like your world has collapsed around you. If you are convicted, you face :

• a minimum driving ban of 12 months;

• a maximum fine of £5,000.00 ;

• a maximum prison sentence of 6 months ;

In addition to the above, you could face the loss of your job, damage to your business or reputation and, as a result, significant financial hardship.

How can I help you?

The first thing I will aim to do is to take detailed instructions from you as to what happened because there will be many important stages in the process from your arrest to your being charged that need to be carefully considered as you may have a defence.

Then I will obtain what is called “initial disclosure” of the prosecution case against you & go through that with you looking for procedural failures that could avoid you being convicted or, enable you to avoid a driving ban by relying on what are known as “Special Reasons.”

Key issues include:

• fundamentally, have the prosecution got enough evidence to prove the case against you?

• can the prosecution prove that you were driving or, had been attempting to drive? Is there direct evidence to put you behind the wheel?

• was your original arrest lawful?

• did the Police follow the correct procedure from the time of your arrival at a Police Station?

• has all the relevant paperwork been properly completed & signed?

• if you provided a breath sample is there evidence that the machine functioned properly?

• if a blood or urine sample was taken was the correct procedure followed?

• has the sample of blood, breath or urine been tested properly either by the machine or by the analysts in the laboratory?

If my advice is that you plead guilty then I will put together a compelling argument to achieve the best possible outcome for you.

Content Overview

Case Study: can the Police prove you were driving?

What are the alcohol limits for drink driving?

If my roadside breath reading was different from the reading at the Police Station do I have a defence?

Can you go to prison for drink driving?

Can I go on a Course to reduce my drink drive ban?

What if this is not my first drink drive conviction?

How long does a drink drive conviction stay on my record?

Do I automatically get my licence back at the end of a drink drive ban?

What is a high-risk offender?

If I am a high-risk offender how do I get my licence back?

Do I have the right to ask for a blood sample to be taken?

Can the police take a blood sample when I am in hospital & unconscious?

I was not offered a print-out from the breathalyser machine at the Police Station

What should I do with the sample of my blood (or urine) that the Police gave me?

I only drove a short distance but was over the drink drive limit

Case Study: I only drove a short distance when over the drink drive limit

If my drink was spiked do I have a defence to a drink drive charge?

What are the key issues for a spiked drinks argument?

Arguing special reasons in court

Tips to prevent your drink from being spiked

I drank alcohol after I stopped driving – do I have a defence?

Who has to prove what with a hip flask defence?

How do I succeed with a hip flask defence?

What if I consumed alcohol shortly before driving?

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I was instructed by a client accused of a drink driving offence based on an anonymous call to the Police who parked at either end of a street near the pub where he had been drinking. He had parked his van nearby & was intending to walk home as he often did when stopping at this pub. He lived a short walk away & knew that the following morning he would be picking up someone he worked with who lived in the road where he had parked. The Police then claimed he had driven his van down the road, seen one of the Police cars, reversed back up the road, parked it perfectly and walked back down the road where he was arrested.

My client denied ever getting in the van & maintained that another white van must have been seen to leave that road at the time he was walking down it. I attended the scene, took photographs of all relevant locations, measured the width of the van and the clearance it had with vehicles parked on both sides of the road showing that this was 8” either side. To have reversed a van at some speed up quite a long road with this little clearance would have been difficult even when sober as cars were parked on both sides of the road. No vehicles were damaged.

After I cross-examined both Police Officers & the Magistrates looked at the photographic evidence, my client was found not guilty and a Defence Costs Order was made.

What are the alcohol limits for drink driving?

The legal limits for drink driving cases are:

• 35mg of alcohol in 100ml of breath ;

• 80mg of alcohol in 100ml of blood;

• 107mg of alcohol in 100ml of urine.

It is not possible to be precise as to how much alcohol you can safely drink before driving. This is because we are all different & many factors affect alcohol levels in the body and for how long they may be above the legal limit. Individual metabolism is influenced by factors such as:

• your height & weight ;

• the amount of food you ate that day & over what period of time;

• the strength & nature of the alcohol you consumed & when you consumed it .

For more information on alcohol-related issues go to https://www.drinkaware.co.uk/

I would not expect so. The breathalyser used by the Police at the roadside is what is known as a “screening device” which means that its primary function is to establish whether you are under or over the limit. They are not as accurate as the breathalysers used in the Police Station. There is also quite often a long delay between the roadside reading & the reading taken at the Police Station. If the difference is substantial it may make my instructing an expert to

• look at all the evidence & the readings

• possibly examine the machines that were used

Magistrates can send you to prison for drink driving for up to 6 months. You are more likely to go to prison if:

• you have previous convictions for serious driving offences ;

• your breath, blood or urine result was three or more times the legal limit ;

• you caused damage to property or injured someone ;

• you were carrying passengers especially if they were children as their lives were put at risk;

• there is evidence of poor driving due to your being impaired by drink.

Magistrates will want a report from the Probation Service before considering a prison sentence. Even then, there may be compelling arguments I can advance to avoid this from happening.

I have not had a client sent to prison for a drink drive conviction.

Alcohol Awareness Courses are available at the discretion of Magistrates. If you have not attended one before you can expect to be offered the opportunity to attend such a Course. You have to pay for this (prices range between £99.00 - £150.00). there are several Course providers covering the whole country. The Court you attend will give you leaflets for each provider showing the locations you can choose from.

Apart from the educational benefits of attending such a Course, your driving ban should be reduced by 25% if you complete the Course within the period specified by the Magistrates. Do not delay booking your Course because if you miss the cut off point for attending you lose the opportunity to shorten your ban by 25%.

If you have attended one previously then it is entirely up to the Magistrates as to whether they will offer you the chance to attend one again.

Being a high-risk offender depends on a number of things & applies if you were convicted of a drink drive offence (driving or in charge) and your reading was:

• 87.5 mcg (or higher) per 100ml of breath

• 200.0 mg (or higher) per 100 ml of blood

• 267.5 mg (or higher) per 100 ml of urine

You are also classed as a high-risk offender if you have :

• two disqualifications within the space of 10 years for drink-driving or being in charge of a vehicle while under the influence of alcohol ;

• one disqualification for refusing or failing to supply a specimen for alcohol analysis;

• one disqualification for refusing to give permission for a laboratory test of a specimen of blood for alcohol analysis.

If you are a high-risk offender, your licence will not automatically be returned at the end of your disqualification period. To get your licence back you will need to undergo a stringent medical assessment, involving :

• completing a lifestyle questionnaire ;

• a CDT (Carbohydrate Deficient Transferrin) assay: this is a blood test DVLA will insist you undergo. It is a biomarker for heavy alcohol consumption ;

• any further tests or evidence DVLA require.

There are 3 possible outcomes:

• the tests are satisfactory & your licence is issued ;

• if you have a previous history of alcohol dependence but had a satisfactory examination and blood tests, a licence with restrictions may be issued ;

• if you have a history of alcohol misuse or dependence and/or unexplained abnormal blood test results your application will be refused.

If your application is refused, you have a right of appeal which I can assist you with.

Do I have the right to ask for a blood sample to be taken?

The statutory right in certain circumstances to ask to be allowed to give a sample of blood as opposed to breath, no longer exists. However, the Police may opt to request a blood sample from you:

• if the breathalyser machine is not working ;

• if they accept that you have a genuine medical reason preventing you from providing a breath sample such as severe asthma or COPD (Chronic Obstructive Pulmonary Disease) .

If you are in hospital or, if you have been in a serious accident the Police may take you to hospital & there ask a Doctor to authorise a blood sample being taken.

Can the police take a blood sample when I am in hospital & unconscious?

Yes, they can, so long as they follow strict procedures:

• they must get permission from the doctor in immediate charge of your case ;

• after that they must also get your consent to use the sample results in court against you ;

The Police will speak to you when you regain consciousness and ask for your consent. If you do not consent to the police using the blood sample, you will be charged with failing to allow a sample to be used – an offence that can see you banned from driving. So, the sensible option is to consent & let me look for any legal arguments later.

If you are conscious and capable of giving consent, the Police will ask you to consent to giving a sample. They must still ask the doctor in immediate care of your case if they can take a sample.

If the police do not follow these procedures, you could have a defence.

I was not offered a print-out from the breathalyser machine at the Police Station

You should have been offered this but, you do not have to accept it. It is in fact the only evidence that proves you were over the limit. Many clients tell me that they were not offered a copy of the print-out only for me to be served with a copy signed by the client. You do not have to sign it but the Police will ask you to do so.

I have represented a client where the Police & Prosecution managed to lose their copy of the print-out & as a result the case was dropped.

What should I do with the sample of my blood (or urine) that the Police gave me?

Firstly, you should follow the instructions on the container meaning you do not tamper with it & keep it refrigerated. Then, have it tested. The Police should have given you details of testing laboratories. If not, then I can recommend one to you.

Contact the laboratory as soon as possible They will tell you what to do. These laboratories charge about £150.00 carrying out an independent test of the sample.

You may be told that the Police results are accurate enough to be reliable but, especially in border line cases, you may be told that you were under the limit.

I only drove a short distance but was over the drink drive limit

This is not a defence but, you may be able to rely on “Special Reasons” so as to avoid being disqualified. Special reasons mean that you are guilty but that, I might be able to avoid your being banned from driving.

Driving a short distance is not on its own sufficient. A short distance driven on its own is not enough. Magistrates will want to be persuaded that:

• there was a genuine emergency that caused you to drive ;

• the manner of your driving did not put others at risk ;

• you had no intention of driving further ;

• the situation does not give rise to a defence ;

• the circumstances should be taken into account.

Case Study: I only drove a short distance when over the drink drive limit

My client had driven to his girl-friend’s apartment planning to stay overnight. He parked his car in the underground car park & they went out for a meal & some drinks. On their return there was an argument & she became violent resulting in him sustaining a head injury. He fled to his car with her in pursuit and he drove out of the car park and around the corner where he parked. It was snowing so having called a friend to come and collect him, he left the engine running so as to keep the heating on. Police found him slumped over the wheel. He failed the roadside breathalyser, admitted he had driven after consuming alcohol and was charged accordingly.

I advised him to plead guilty. I called him to give evidence & also the friend who had set off in the early hours of the morning to collect him. I then argued Special Reasons & the Magistrates upheld my argument because:

• there had been an emergency ;

• he had only driven a short distance ;

• there was no evidence of poor driving ;

• he had no intention of driving further .

This meant that although my client was significantly over the drink drive limit, he was not disqualified from driving.

What are the key issues for a spiked drinks argument?

• well, quite obviously, you must show that you did not suspect (nor should you have suspected) that your drink had been spiked with alcohol or drugs ;

• you must show that but for the alcohol or drugs added to your drink without your knowledge, you would have been below the drink drive limit .

If your reading is high then it will become difficult to satisfy Magistrates that when you went to drive, you did not realise (and nor should you) that you were over the limit. This is another scenario where we would need an expert’s report.

It is always helpful if the person who spiked your drink admits this but in doing so they put themselves at risk. Are there people who were present who can describe what they saw you drink, how you behaved etc?

The courts usually require corroborative evidence to prove that a victim’s drink was spiked in motoring law cases:

• Expert evidence would be required to prove that the drug or alcohol used would have put the victim not only over the limit but at the exact level the police measured in her breath.;

• Witness Statements from people who were with the victim to confirm any alcohol or drug that the victim knowingly consumed.;

• If friends have spiked your drink, then their evidence confessing to the spiking can make all the difference but then this leaves them open to prosecution themselves.

1. Never leave your drink unattended .

2. If someone offers to buy you a drink keep your eye on the server and take the glass directly from them. Only take drinks from people you trust.

3. Avoid sharing drinks with other people.

4. Choose unopened bottles or cans over drinks in glasses.

5. Spikey – a stopper for bottles to prevent drugs and alcohol from being slipped into the drink.

6. Get in the habit of covering the top of your drink with your hand.

7. Look for signs of tampering. Slight changes of colour, excess fizziness or an off taste can all be signs that your drink has been spiked.

If you are in any doubt your drink has been spiked stop drinking it immediately.

I drank alcohol after I stopped driving – do I have a defence?

If you drank alcohol after you stopped driving and before you were breathlysed, you may be able to rely on what is known by lawyers as “the hip flask defence” – do not worry as you do not need to have used a hip flask! Many years ago it was quite common for people to carry a hip flask containing spirits & to have a “large one” if they were involved in an accident – hence the expression.

This defence also covers situations where the driver has got home & had a drink before the Police arrive & ask them to provide a breath sample.

Who has to prove what with a hip flask defence?

Usually, the prosecution have to prove your guilt beyond reasonable doubt but, if you raise the hip flask defence, you have to prove that at the time you were driving you would no have been over the limit. You have to satisfy the Magistrates of this on what is called a “balance of probabilities” which means that it is more likely than not that you were under the limit.

The starting point is that the prosecution evidence as to your alcohol level was as stated on the Print Out & this presumption has to be displaced by your evidence that, but for the alcohol consumed after you stopped driving, you would have been under the limit.

How do I succeed with a hip flask defence?

It is almost inevitable that we will need a toxicology report from a specialist forensic expert. He will take account of the evidence relied on by the prosecution as well as your evidence as to post driving alcohol consumption & calculate what the expected alcohol level reading would have been at the time of driving. This is known as a “back calculation.”

The expert will take into account a number of variable factors including:

• the time and date when the specimen was obtained ;

• your age, height & weight ;

• details of the alcohol you consumed before & after driving;

• the time period over which this was consumed ;

• whether or not you ate any food before or after driving ;

If the expert produces a report favourable to you it will be served on the prosecution & relied on at Court. The report may be useful even if it does not show that you would have been under the limit if it shows the reading while still over the limit, would have been significantly less than the reading relied on.

If other people can support your evidence as to what you drank after you stopped driving, that will be helpful.