Thank you for the vote of confidence, but this is not my web site. This site is run by an independent group who are not connected to a law firm.
Redzed is quite correct, your version amounts to what is commonly called a "hip flask" defence. The name derives from a line of reported cases where Defendants had literally drank from a hip flask at the road side immediately after driving (often after being in an accident to calm the nerves) but before the arrival of the police. If you are involved in an accident then it is not advisable to drink alcohol afterwards due to the obvious risk that the police will attend the scene, or your home address, and ask you for a breath sample.
In your case, notguiltyguv, I appreciate that this criticism does not apply and you had no reason to suspect that the police would knock on your door and were perfectly entitled to have a drink when you arrived home. This will be a factor in your favour when arguing your case in case.
However, the law entitles the court to assume that the level of alcohol in a sample of breath, blood or urine, is the level that was present at the time of driving, unless and until you can prove otherwise.
This is done by BAC calculation by a forensic scientist. The forensic experts use a well established formula to work backwards and establish what your alcohol level would have been at the time you drove, as opposed to the level of alcohol in the sample. To do this they will usually ask you to provide them with the following information to assist them in their calculation:
-gender
-age
-weight
-height
-average alcohol consumption (to establish tolerence)
-food consumption that day
- most importantly, what alcohol you had to drink and when.
The experts cannot be hoodwinked and can tell if your account of what you had to drink and when is consistent or inconsistent with the level of aclohol at the time of the sample. If your account is inconsistent with this then your whole defence can unravel in court and your credibility badly affected. It will also render the BAC calculation pointless as this is only as reliable as the information given to the expert. For this reason it is a good idea to write down exactly what you drank, exactly what quantity and exactly when, now, while events are fresh in the memory. If you wait several weeks or even months until the time you provide your instructions to your solicitor then, inevitably, your memory will have faded, which will prejudice your defence.
Your silence at the police station could result in an adverse inference being drawn at trial when you give evidence. This is what the police caution, read to you on arrest and at the start of an interview, is all about. The prosecution could ask you why you did not tell the police, when interviewed, that most of the alcohol was due to post driving consumption. This could affect your credibility. If the court dont find you credible then they may not believe your account. This will also depend on other factors, such as did you have time to drink the amount you say after arriving home? Credibility in these cases is very important.
On the other hand, your silence also means that the police will have to prove that you drove. They will have to rely on the evidence of the public spirited witness to prove this. Without his evidence they could not prove you even drove the car.
Finally, but very importantly, the two evidential breath samples in the police station must be within a certain band. If they are too far apart then the samples are unreliable. You have given 3 different readings in your post. You say the first was 135mg, the second was 170mg but then you also say that the sample they are relying on is 132mg. If the lowest evidential sample was 132mg then the second one cannot be higher than 151mg. Otherwise it is indicative that the readings are unreliable. In this case the police must ask you for either a blood or urine sample to replace the breath samples. You don't mention this in your post but if the police failed to do this then, potentially, you have a good defence on the basis the breath samples cannot be relied on in evidence. You should take specific advice from a specialist road traffic solicitor about this.
The stakes are very high because, as you will see from the sentencing guidelines, if convicted of drink driving with a reading of 135mg in breath, you will receive a very long disqualification and are, without doubt, at risk of an immediate prison sentence. If you wish to discuss your case in more detail, free of charge and without obligation, then call one of our drink driving and road traffic specialists on our 24 hour helpline on 08450020736.
We can provide specialist representation in any court in England or Wales and will give you initial expert advice about your case for free.
