Do police have discretion on bac result?

[jackosc2]

I heard somewhere that if your BAC is between 81-90mg you may have a chance of not getting charged as it is up to the discretion of the officer at the time in the police station, is this correct? my story is i blew 47 both times on the station breathalising machine at about 10pm and had bloods taken about 1:00am + will my bac be below 80mg? i was fairly hydrated im 21, 6ft1" 11.2 stone and i stopped drinking at about half 9, ive got a bad feeling ill be over and hoping this "discretionary" thing is true, my only back up is police are taught not to charge up to 40mg on breath so if the same is on bloods then it can go upto 90mg in theory!? really really scared i just need some answers thankyou.

 

[Forum Moderator]

I heard somewhere that if your BAC is between 81-90mg you may have a chance of not getting charged as it is up to the discretion of the officer at the time in the police station, is this correct? my story is i blew 47 both times on the station breathalising machine at about 10pm and had bloods taken about 1:00am + will my bac be below 80mg? i was fairly hydrated im 21, 6ft1" 11.2 stone and i stopped drinking at about half 9, ive got a bad feeling ill be over and hoping this "discretionary" thing is true, my only back up is police are taught not to charge up to 40mg on breath so if the same is on bloods then it can go upto 90mg in theory!? really really scared i just need some answers thankyou.

If your blood results prove that you exceeded the legal limit of 80 milligrams of alcohol per 100 millilitres of blood you will be charged. The police have no discretion in deciding whether or not to prosecute you, if you exceed the legal limit. You will be charged. It is impossible to predict with any accuracy what your blood test results will be.

The following is an excerpt taken from this page:

"Although the maximum legal prescribed limit is 80mg of alcohol per 100ml of blood, in practice those drivers whose blood alcohol level falls below 86mg per 100ml of blood are usually not prosecuted. This is because the police forensic blood specimen analysis procedure produces a series of results using gas chromatography. These results must fall within 3 standard deviations (or 6%) of each other, they are then averaged before 6% or 6mg (whichever the greater) is deducted from the final result. The same reduction is used for urine specimens. A persons blood or urine alcohol specimen results are then reported back to the police as containing not less than xxmg of alcohol per 100ml of blood/urine."

 

[jackosc2]

If your blood results prove that you exceeded the legal limit of 80 milligrams of alcohol per 100 millilitres of blood you will be charged. The police have no discretion in deciding whether or not to prosecute you, if you exceed the legal limit. You will be charged. It is impossible to predict with any accuracy what your blood test results will be.

The following is an excerpt taken from this page:

"Although the maximum legal prescribed limit is 80mg of alcohol per 100ml of blood, in practice those drivers whose blood alcohol level falls below 86mg per 100ml of blood are usually not prosecuted. This is because the police forensic blood specimen analysis procedure produces a series of results using gas chromatography. These results must fall within 3 standard deviations (or 6%) of each other, they are then averaged before 6% or 6mg (whichever the greater) is deducted from the final result. The same reduction is used for urine specimens. A persons blood or urine alcohol specimen results are then reported back to the police as containing not less than xxmg of alcohol per 100ml of blood/urine."

So the police will get a pass or fail answer, but that will depend if my result is above 86mg? im slightly confused, ill explain how i see it, if they do 3 tests they all must be within 6mg or 6% (whichever greater) of each other, if they are then i will not be prosecuted? if they are not then basically i will fail and will be prosecuted?

if this is wrong can you please explain in more detail (panicing!)

 

[Forum Moderator]

So the police will get a pass or fail answer, but that will depend if my result is above 86mg? im slightly confused, ill explain how i see it, if they do 3 tests they all must be within 6mg or 6% (whichever greater) of each other, if they are then i will not be prosecuted? if they are not then basically i will fail and will be prosecuted?

if this is wrong can you please explain in more detail (panicing!)

Basically, during the analysis a series of tests are performed, the results of these tests are then averaged, then 6% (or 6 mg) is deducted from the final result which is then reported back to to the police as containing not less than xxmg of alcohol per 100ml of blood/urine. If the results reported back to the police show you were over the legal limit of 80 milligrams of alcohol per 100 millilitres of blood, you will be charged.

I know you are looking for reassurance and trying to find some peace of mind but there really is no way of predicting with any degree of accuracy what the final outcome is going to be as so many factors come into play that can affect each individuals blood alcohol levels at a specific point in time. No one can tell you whether or not you will be charged except the police when they have received the blood test results.

 

[jackosc2]

ah okay makes sense now, yeah im just quite worried about it all, well usually 0.15mg is lost every hour so 4.5 from 47 mg on breath maybe i have chance, thankyou for the help!

 

[ExCopper]

Iheard somewhere that if your BAC is between 81-90mg you may have a chance ofnot getting charged as it is up to the discretion of the officer at the time inthe police station, is this correct? my story is i blew 47 both times on thestation breathalising machine at about 10pm and had bloods taken about 1:00am +will my bac be below 80mg? i was fairly hydrated im 21, 6ft1" 11.2 stoneand i stopped drinking at about half 9, ive got a bad feeling ill be over andhoping this "discretionary" thing is true, my only back up is policeare taught not to charge up to 40mg on breath so if the same is on bloods thenit can go upto 90mg in theory!? really really scared i just need some answers thankyou.

You might be able to tell from my user name is i'm a former Police Officer,only served 3 years but still have some experience of drink drivers.

Your BAC generally peaks 30 to 45 minutes after you've finished drinking but tobe on the safe side we'll say an hour. If you stopped drinking at 21:30 yourBAC may not fully peak till 22:30, in other words you blew 47 at 22:00 you mayhave blown higher 15 - 30 minutes later, so don't start trying to calculate howmuch your BAC may have fallen till 22:30. On this basis you have 2.5 hours ofBAC reduction before your blood test. The body will metabolise alcohol at thesame rate irrespective of how much alcohol was consumed. However, the rate yourbody metabolises alcohol is affected if you've eaten anything which will causeit to slow down, 90% is metabolised by the liver the other 10% in breath, urineand sweat.

I am going to base my calculations here on the assumption that you aremetabolising alcohol at 0.015 BAC an hour which is a fair amount, the rest ofmy calculations are based on my experience and web research.

Legal limit is 80mg Alcohol per 100ml of blood or 35µg Alcohol per 100ml ofbreath
You blew 47µg
So my very simplistic calculation is 80 divided by 35 = 2.2857142 times 47 =107 to get to your BAC of 107mg but lets asume your alcohol levels were stillrising and you peaked at 115mg at 22:30

115mg is the same as 0.115 BAC and the legal limit is 80mg or 0.08 BAC

You then have 2.5 hours of reduction at 0.015 per hour or 0.0375 total

0.115 - 0.0375 = 0.0775 below the legal limit

Lets say you're not metabolising so fast but reducing at 0.012 per hour or0.030 total

0.115 - 0.030 = 0.085 above the legal limit but perhaps low enough to notwarrant a prosecution

There are so many factors that could affect the result that ultimately it isimpossible to accurately predict the final outcome but I feel there may be amoderate chance you could get away with it... THIS TIME!

Another important point is on the way everything was done by the police ordoctor taking the blood sample, if it wasn't carried out with absolute accuracythere are loopholes and a good solicitor can get your case dismissed, but thisyou have to pay for. There are plenty of example of people escaping prosecutionbecause a solicitor who specialises in drink drive cases discovered a boxwasn't ticked or a form not completed properly.

I have no sympathy people who get bladdered, try and drive home and get nickedand lose their license but the few that miscalculated (and given that you weren’tdramatically over and I suspect this is what you did) I do have some sympathyfor (hence why I’m on this website)

Anyway my final comment is as I’ve said that I personally feel you have achance to get away with it... and again THIS TIME! but what I ultimately adviseis to do what I did when I was a copper and what I continue to do now; if Ihave to drive I don't drink and if I’m driving the next day then I leave 12hours between my last drink and turning the key in the ignition.

Good luck dude and if your lucky don't do it again...

 

[jackosc2]

You might be able to tell from my user name is i'm a former Police Officer,only served 3 years but still have some experience of drink drivers.

Your BAC generally peaks 30 to 45 minutes after you've finished drinking but tobe on the safe side we'll say an hour. If you stopped drinking at 21:30 yourBAC may not fully peak till 22:30, in other words you blew 47 at 22:00 you mayhave blown higher 15 - 30 minutes later, so don't start trying to calculate howmuch your BAC may have fallen till 22:30. On this basis you have 2.5 hours ofBAC reduction before your blood test. The body will metabolise alcohol at thesame rate irrespective of how much alcohol was consumed. However, the rate yourbody metabolises alcohol is affected if you've eaten anything which will causeit to slow down, 90% is metabolised by the liver the other 10% in breath, urineand sweat.

I am going to base my calculations here on the assumption that you aremetabolising alcohol at 0.015 BAC an hour which is a fair amount, the rest ofmy calculations are based on my experience and web research.

Legal limit is 80mg Alcohol per 100ml of blood or 35µg Alcohol per 100ml ofbreath
You blew 47µg
So my very simplistic calculation is 80 divided by 35 = 2.2857142 times 47 =107 to get to your BAC of 107mg but lets asume your alcohol levels were stillrising and you peaked at 115mg at 22:30

115mg is the same as 0.115 BAC and the legal limit is 80mg or 0.08 BAC

You then have 2.5 hours of reduction at 0.015 per hour or 0.0375 total

0.115 - 0.0375 = 0.0775 below the legal limit

Lets say you're not metabolising so fast but reducing at 0.012 per hour or0.030 total

0.115 - 0.030 = 0.085 above the legal limit but perhaps low enough to notwarrant a prosecution

There are so many factors that could affect the result that ultimately it isimpossible to accurately predict the final outcome but I feel there may be amoderate chance you could get away with it... THIS TIME!

Another important point is on the way everything was done by the police ordoctor taking the blood sample, if it wasn't carried out with absolute accuracythere are loopholes and a good solicitor can get your case dismissed, but thisyou have to pay for. There are plenty of example of people escaping prosecutionbecause a solicitor who specialises in drink drive cases discovered a boxwasn't ticked or a form not completed properly.

I have no sympathy people who get bladdered, try and drive home and get nickedand lose their license but the few that miscalculated (and given that you weren’tdramatically over and I suspect this is what you did) I do have some sympathyfor (hence why I’m on this website)

Anyway my final comment is as I’ve said that I personally feel you have achance to get away with it... and again THIS TIME! but what I ultimately adviseis to do what I did when I was a copper and what I continue to do now; if Ihave to drive I don't drink and if I’m driving the next day then I leave 12hours between my last drink and turning the key in the ignition.

Good luck dude and if your lucky don't do it again...

thankyou for the detailed answer has given a good view onit all, i stopped drink about half 8-9, so should have been on its way down :s i didnt intend to drink drive, so when i was over i was surprised, but again thankyou for the response.

 

[ExCopper]

thankyou for the detailed answer has given a good view onit all, i stopped drink about half 8-9, so should have been on its way down :s i didnt intend to drink drive, so when i was over i was surprised, but again thankyou for the response.

No problem dude. I have been critised by friends for offering such information especially as i'm an ex-copper. My view however is that if some people can get away with drink driving because they can afford the solicitor then that process should be available to everyone.

A few points I neglected to mention:

Did you get stopped by patrol police or a traffic police? The main way to tell the difference is the car they were driving and/or what they were wearing. Patrol police will be driving Ford Focus/Vauxhall Astra/Peugeot 308 and the like, in my old force traffic police drove Volvo estates, BMW 5 series estates, BMW X5's Volvo XC90 and the same is true across most forces. Traffic police are sometimes also armed, wear all black and have their pistol strapped to their leg. My point is that traffic police do more stops and carry out more drink drive proceedures so generally know what they're doing. Patrol bobbies on the other hand do much fewer and so are more likely to make mistakes. There is a long protracted form to be completed called an MGDD which is easy to get wrong. If you were stopped by a patrol bobby then it may be worth going down the solicitor route it all depends on how much your licence is worth to you. If it was traffic that stopped you then I probably wouldn't bother. This of course is only relevant if you were over the limit.

When you answer your bail, request the duty solicitor. You are entitled to free and independant legal advice, even if this takes a couple of hours to arrange one do it anyway before you speak to an officer about the case, it's fine to acknowlege your details, name, address etc... The next bit is a bit redundant as you have already spoken to officers about the offence, but anyway... Say NOTHING about the offence without checking with the solicitor. All conversation in the custody suite is recorded by their CCTV both video and audio and anything you say that the officer considers significant will be written down in his/her pocket note book and can then be given as evidence in court, whether you sign that you made that statement or not.


Anyway all the above is based on worse case. I do think you have a moderate to good chance of getting away with this... and once again (and I will say this till i'm blue in the face) THIS TIME!!! So, I know you're worried, I know you're freaking out... but try to remain positive. Stay lucky and try and have a good weekend.

Take care dude...

 

[jackosc2]

No problem dude. I have been critised by friends for offering such information especially as i'm an ex-copper. My view however is that if some people can get away with drink driving because they can afford the solicitor then that process should be available to everyone.

A few points I neglected to mention:

Did you get stopped by patrol police or a traffic police? The main way to tell the difference is the car they were driving and/or what they were wearing. Patrol police will be driving Ford Focus/Vauxhall Astra/Peugeot 308 and the like, in my old force traffic police drove Volvo estates, BMW 5 series estates, BMW X5's Volvo XC90 and the same is true across most forces. Traffic police are sometimes also armed, wear all black and have their pistol strapped to their leg. My point is that traffic police do more stops and carry out more drink drive proceedures so generally know what they're doing. Patrol bobbies on the other hand do much fewer and so are more likely to make mistakes. There is a long protracted form to be completed called an MGDD which is easy to get wrong. If you were stopped by a patrol bobby then it may be worth going down the solicitor route it all depends on how much your licence is worth to you. If it was traffic that stopped you then I probably wouldn't bother. This of course is only relevant if you were over the limit.

When you answer your bail, request the duty solicitor. You are entitled to free and independant legal advice, even if this takes a couple of hours to arrange one do it anyway before you speak to an officer about the case, it's fine to acknowlege your details, name, address etc... The next bit is a bit redundant as you have already spoken to officers about the offence, but anyway... Say NOTHING about the offence without checking with the solicitor. All conversation in the custody suite is recorded by their CCTV both video and audio and anything you say that the officer considers significant will be written down in his/her pocket note book and can then be given as evidence in court, whether you sign that you made that statement or not.


Anyway all the above is based on worse case. I do think you have a moderate to good chance of getting away with this... and once again (and I will say this till i'm blue in the face) THIS TIME!!! So, I know you're worried, I know you're freaking out... but try to remain positive. Stay lucky and try and have a good weekend.

Take care dude...

Thankyou for this information it has really helped me get everything sorted, it was police driving a ford so guessing it was traffic cops, i dont really have the time tuesday to request a solicitor so is my best bet just to say yes to the relevant and not say anything about my charge? i dont want to shoot myself in the foot, your advice is great and has calmed me alot, thankyou!

 

[ExCopper]

Thankyou for this information it has really helped me get everything sorted, it was police driving a ford so guessing it was traffic cops, i dont really have the time tuesday to request a solicitor so is my best bet just to say yes to the relevant and not say anything about my charge? i dont want to shoot myself in the foot, your advice is great and has calmed me alot, thankyou!

They were driving a Ford... what? Mondeo estate they were probably traffic, Focus estate then probably patrol. Anyway this is irrelevant at the moment.

THE NEXT BIT IS VERY IMPORTANT.

When you go to the police station to answer your bail the officer will usually take you through to custody, it doesn't mean you're going back into a cell but you are at the poilce station and the custody sergeant by law has to ask you certain questions about your health and well-being. Another question he should ask is whether you want to speak to the duty solicitor, the answer to this question is YES. The police arrange this, it is free.

A better option is to call before hand (just dial 101 and you will go through to your local force control room) you will unlikely be able to speak to the officer but it doesn't matter, tell the operator your name and date of birth, the date and time you are answering your bail and the officer who is dealing with you. You should have been given a piece of paper with this on when you were bailed. Then explain that you will want THE DUTY SOLICITOR to be at the station when you answer your bail this will save any delay.

Don't say anything about the case until the duty solictor is there. You will have time to consult with him/her in private. They will be given information about the case by the officer this is called 'disclosure' You want the duty solicitor IF you are over the limit and to advise your next course of action. If you're under the limit then the case is 'NFA'd' NFA = No Further Action and off you go never to return...

The duty solicitor is not nessecarily a qualified solicitor I know this sounds odd but they are usually just a legal representative, don't worry some duty reps are retired Police Sergeants/Inspectors/Superintendants and know exactly what they're doing and don't let the fact that some of them are ex-police put you off, they're paid to and will fight your corner, after all I'm ex-police and i'm in your corner!! They should be able to point you in the right direction if it all goes to ****.

Lets leave it there for now and see how it turns out.

Actually, tell me which police station your answering your bail at, i'll have a look for the duty solicitors in that area and see if I can find one that looks good. Remember, the duty solicitor is FREE.

Speak soon.

 

[jackosc2]

okay brilliant thankyou!!
i will be answering bail at staplehill police station.
was definatly traffic police was an estate i think.

 

[ExCopper]

okay brilliant thankyou!!
i will be answering bail at staplehill police station.
was definatly traffic police was an estate i think.

Call Hannah Livesey from Bobbetts Mackan Solicitors on 0117 929 8987

Bobbetts Mackan specialise in Criminal Law including driving offences.

Bobbetts Mackan are one of the duty solicitors for Staple Hill Police Station but CONFIRM WITH HER THAT YOU DON'T HAVE TO PAY and that their services are through the duty solicitor service.

I've spoken to her and given her a rough outline of your case, you'll need to fill in the blanks. She is on call NOW she will then arrange for a duty solicitor to meet you outside the police station and you'll go from there. Have the date and time your going to the police station ready before you ring.

Right I think were about done here dude, good luck and let me know how you get on.

 

[jackosc2]

Call Hannah Livesey from Bobbetts Mackan Solicitors on 0117 929 8987

Bobbetts Mackan specialise in Criminal Law including driving offences.

Bobbetts Mackan are one of the duty solicitors for Staple Hill Police Station but CONFIRM WITH HER THAT YOU DON'T HAVE TO PAY and that their services are through the duty solicitor service.

I've spoken to her and given her a rough outline of your case, you'll need to fill in the blanks. She is on call NOW she will then arrange for a duty solicitor to meet you outside the police station and you'll go from there. Have the date and time your going to the police station ready before you ring.

Right I think were about done here dude, good luck and let me know how you get on.

my solicitor just rang me and told me im getting charged with excess alcohol, i dont have a clue what to do!?

 

[ExCopper]

I'm sorry dude, I thought there was a chance it would turn out okay but there's no way of really knowing. Talk to the solicitor about your options, I'm out of my depth with regards to legal routes to challenging a drink driving charge. Plus there are other dicussion topics on this website that may assist.

If all else fails try and remain positive, you're a young bloke, 16 years younger than me and I don't consider myself old. Life goes on.

Take care dude...

 

[dp390]

Hi ExCopper,

I have responded to this thread as I am unable to send you a private message. I have some questions relating to my drink driving offence, bailed until 21st March independent blood sample 90mg. I will wait and see if you respond since your last response is sometime ago.

Thanks.