Drink driving - need legal help regarding blood evidence and technical defences

[volvo v40]

Hi there,

Just under a year or so ago I had a bit of a party at my house and had several people stay over. Early the next day one of my guests announced she had work, and as she had work needed a lift to the local tube station.

As she was lightly dressed and it was the middle of winter I gave her a quick ride. I went through an orange light, and was pulled over by a police officer.

I thought I was just tired and did not think I may be over the limit. I failed the roadside and after an hour or so delay blew 41 and 45 back at the police station and during this process asked to speak to a solicitor. After being put back in the cells I was blood tested and was released an hour or so later.

I was handed by blood sample, and left as I really needed some sleep had completely forgotten about speaking to a lawyer. I was reassured by the 'nice' police officer that drink driving wasn't a criminal offence, and I would probably only get points. I followed all the instructions with respect to the police, and with the blood, refridgerated it, did not open the pack and gave it to an independent testing laboratory which was endorsed by the royal institute of chemists.

The police's blood sample came back at 82 and I had been formally charged, my sample came back at 106.8?. This isn't the only mistake, the charge sheet is totally wrong, with the street incorrect - I never drove down that street, the car registration incorrect. To top this off, and the head of the local police station also told me when I returned to the police station when being charged that Drink Driving wasn't a criminal offence and backed the local officer contrary to what I was told the law was, I would have definitely not given blood at the police station until I spoke with a lawyer and knew all the procedures had been followed correctly.

As I had recently been made redundant at my job I qualified for legal aid. The solicitors seem to be putting in minimum of effort and only with maximum co-ercion got a court adjournment to look at both tests. In the meantime have regained employment again, but am 4 months behind on my mortgage and maintaining my DL/ Non criminal record is crucial to keeping my job. If I don't get off I will definitely lose my house. At the time when I was pulled over I was volunteering for eight months at the local church working with homeless people, and in the afternoons for an at risk youth project so will definitely get some good references from them if needed.

Anyway to top everything off it seems that the expert examining both samples, has checked both the independent analysis of my sample and the police's blood testing. The expert that I used mistakenly tested a chemical ratio in used in the preparation of the test and did not carry out the test. The lab have not kept my blood sample still as this case has been ongoing for almost a year.

Is there any case law that may help defend my position as clearly several procedures haven't been followed here - I was so close to the limit anyway there is a distinct possibility that my test would come back under the limited. and I have llimited confidence in the firm of solicitors I am currently with. If I don't I will pretty much lose everything so have no choice but to fight this. Your help or any suggestions would be appreciated.



Volvo in a bit of a pickle.

 

[SeanJoyceStephensons]

There are a number of issues that you raise.
I doubt very much that the police officers would admit trivialising the offence in the way you describe and it may be difficult for you to prove that this is what was said to you. In any event, by the time you spoke to the police the offence had, allegedly, already been committed and I don't think that this is an argument that is going to help you. However, requesting CCTV evidence from the custody office would be a good place to start. It may or may not include audio recording.

The police and prosecution cannot be held responsible for the mistakes that your own independent expert has made when analysing the blood sample. However, I would ask the laboratory concerned for a written explanation as to how they got it wrong. Iit would be interesting to ask a really good forensic scientist also look at what went wrong and to look at all the evidence of analysis, i.e the road side breath reading, the two breath readings at the police station and the two blood analysis results and provide a report to put a time lime on events to try and create a clearer picture of your alcohol levels at different times during the evening, especially at the time that you drove. Given that both the breath and blood readings are so borderline it is certainly worth challenging.

In order to comment on whether procedures have been disregarded to such an extent that the evidence of analysis should be excluded then a close examination of the evidence is required and it is not possible for me to comment here. There is case law excluding evidence when procedures are ignored but this will depend on the circumstances of your particular case. However, a solicitor specialising in this area of law would be able to give specific advice about your case upon sight of the prosection evidence. We provide a fixed fee service for providing written opinions about the evidence in your case.

I would suggest you arrange an appointment to go and see your solicitor and tell them what your concerns are about their handling of your case. If you are still unhappy then you have the right to change solicitors but the Court will want a good explanation before they agree to transfer your legal aid order.

 

[david1524]

Dear Sean,
I was most interested with your considered reply to this poor chaps problem but unfortunately the part most interesting to me you did not deal with. I would be most grateful if you would explain how one answers "guilty" to an alleged offence such as this when the registration number of the vehicle is not the vehicle concerned (recorded wrongly). What if, by way of advanced disclosure you discover that the police officers note books are also wrong. Are you supposed to simple be a good guy and assume they mean you any way and ignore the errors? If so, when did the law become driven by the attitude; "well it's close so that will do".
Should one say "guilty" whatever the car registration is on the Charge Sheet then? Or is it based on how many digits the police got wrong and the new “lets all be reasonable and flexible” legal system? That leaves the accused not knowing if they should say they are entirely guilty or “almost”! Please advise.
Many thanks
David

 

[SeanJoyceStephensons]

It is the police and the prosecution who bring these cases to court and it is they who must prove, beyond all reasonable doubt, that the specific allegation contained within the charge is made out. So, if they say you were driving a specific vehicle on a specific road whilst over the prescribed alcohol limit, then they must prove that that is what the accused did.

However, under the Criminal Procedure Rules and the principle laid down in a well known case referred to as "Chorley Justices" the defence are now required to co-operate and assist with the procedure and actively identify the issues in the case, particularly those issues that may be highly "technical", such as getting one or two digits in a registration number or street name wrong. It is often remarked that this attitude effectively requires the defence solicitor to help the prosecutor prosecute the Defendant!

Once that sort of issue has been identified then it is open to the prosecutor to apply to amend the wording of the charge at any point before the court returns it's verdict. A Defendant can object. The decision about whether the prosecution are allowed to amend the wording or not will depend on the extent of any prejudice that the defendant will suffer as a result of the charge being amended. This will vary depending on the extent and significance of the mistake.

Courts will usually take the view that one or two digits in a registration number are no more than a typographical error and correcting it does not prejudice the defendant's case and allow it to be amended. More significant errors such as completely incorrect registration numbers or totally different road names may be regarded differently.

 

[david1524]

Dear Sean,
Your reply was most helpful and informative, thank you. The situation here is that my son was picked up by his wife from the pub in a Kent village late at night. She was sober he apparently, was not. The fact is that he persuaded her to swap over and he drove them home. He was stopped and found to be over the limit. Interestingly, the subsequent charge sheet reads the wrong village name (a village 3 miles away which she drove sober through on the way to the pub and, passing the police car in question)and the registration is two digits wrong. I appreciate that he is guilty but in a diferent place and the moral answer is clear in that the reg number is clearly a typo. I am however human and as his dad I was wondering if such technicalities are helpful at all to him in some way in any defence. Such as when asked to plead, should he explain all helpfully and hang himself anyway because he was guilty in a diferent village where he was stopped, or should he just say "not guilty" and risk being ripped to bits by the magistrate later for wasting the courts time ? He is summond to appear in court for the first time on 8th December will he be convicted the same day?

Your obvious expertise and kindness in lending your time to those of us on here whom are out of our depths with these processes is gratefully acknowledged.
David

 

[SeanJoyceStephensons]

If your son pleads guilty on 8th December then he will immediately be convicted and the inevitable disqualification will start with immediate effect. If he pleads not guilty then he will neither be convicted nor disqualified and his case will be adjourned for several weeks for trial.

As to whether the mistakes made are issues on which he can base a defence, very much depends. The prosecution can apply to amend the wording of the charge at any time. When your son enters his plea of not guilty the court legal advisor will ask him what his defence is. When your son tells them, the prosecution will apply (either immediately,on the day of trial or in the intervening period) to amend the wording of the charge to reflect the correct registration number and correct location. Your son is entitled to object to the amendment. Whether the court allow the prosecution to amend the charge or uphold your son's objections will be a matter of fact and degree. The court will consider whether your son will suffer any prejudice if they allow the amendment and how the interests of justice are best served. There are risks because if the court decided against your son and felt that his defence was flimsy then he could be punished in costs and could be given a harsher penalty.

Your son's lawyer would have to consider the case law and apply it to the facts of your son's case. It is not possible for me to give that sort of specific advice about plea within the context of this forum. If your son wants specific advice then he should formally instruct a lawyer to look at the case for him. This is something we can help you with if you want to contact me or my colleagues direct.