Fail to provide help

[c191]

Hi, I hope someone can give me some advice here. I was out one night 24th April 2016 when I got home and decide I wanted to take a visit to the popular local fast food chain restaurant. The restaurant is 400metres away from my home, I stupidly decided since it was such a short distance and they only serve drive through past midnight I’d get in my car.

I proceeded through the drive through where I placed order and was asked to wait in bay for meal. I felt something was up due to the wait, so I got out my car and proceeded to enter the restaurant however police quickly pulled up and I was stopped.

They identified me as the driver by removing key from my pocket and pressing remote central locking. I assume the staffs of restaurant confirm this too!

Anyway I was asked to do road side test of which I first blew a high reading, not sure exact, followed by a fail.

I was arrested and taken back to police station to provide a sample there. I don’t know why but I always thought if you put a coin in your mouth you blow a lower reading so I proceeded to do the tests with a coin in my mouth. Both tests failed to give a reading, and I was told failing to provide was an offence in itself and was held in custody.

I was due to be in magistrate’s court 5 weeks after the arrest. In this time I took professional advice on which I was to expect the minimum due to myself having, No previous convictions, first driving offence, and clean licence for 9+ years, not aggressive towards police, no damage caused, good character, and good job and maybe for the short distance. I also pleaded guilty at the first opportunity however my case was made up for a not guilty plea? Possibly being fully cooperative with police however I failed to provide I don’t know if this would be against that could be in my favour also. However I was advised to just use the duty solicitor on the day as the outcome will be the same.

I understand what I did was shameful, could have be worse and I can’t begin to put in to words how remorseful I am. It was a sheer act of stupidity on my behalf. I fully take responsibility for my actions and deserve to be punished.

I have attended court and below is the following outcome;

1. 3 year driving ban + HRO to the DVLA

2. 18 Month suspended sentence

3. High level community order consisting of 16 week curfew (electronic monitoring)

4. Rehabilitation programme

5. £200 fine including fees, surcharges etc.

I know I deserve to be punished for my actions however it seems the district judge who was in court really threw the book at me. My partner’s farter has worked within traffic police as a sergeant for 20+ years and has never seen such sentence for a first time offence and has seen people who were worse on several occasions come off more lightly. Everyone I speak to thinks I’m joking or that is a bit too harsh and have been made and example of. I have search on this website on similar cases and it seems where there have been aggravating factors such as damage to property of collisions then people have been served the same if not less. I understand that I should be punished but I am a good character and have always been on the right side of the law. I feel physically sick and can’t put food down due to the fact of just missing being locked up for x amount of months. This has forced me to cancel a pre-paid holiday to the USA assuming I could have went on a 1 DUI charge but I cannot now as I have a suspended sentence and a community order. My partner, an innocent person in this case has lost money due to this. (Of course I will reimburse that).

This one act of stupidity has really had some server consequences, and has cost £5,800 so far all for a stupid burger!

I have read and understand the sentencing guidelines used by magistrates (in my case district judge) for fail to provide specimen for analysis (drive/attempt to drive). From my sentence it is obvious the district judge has went to the top of the scale and use deliberate refusal or deliberate failure where evidence of serious impairment. ‘Serious impairment ‘was justified by district judge from my action of putting my card on the wrong place on the card reader whilst making a contactless payment (something I would probably do sober).

From this the judge initially spoke about 12 weeks custody at this point I felt hot and almost collapsed but was reduced to the high level community order and 18 month suspended sentence and maximum length of ban. Using the table and columns, in small print it states, ‘starting point based on first time offender pleading not guilty’ however I pleaded guilty?

After exiting the court and speaking to the duty solicitor, who was, as well as myself, in shock at the sentence said I have the right to appeal that. I spoke to my partner farther who was astonished, shocked and furious with the outcome and the justice system and also went back to the solicitor who has also told me to appeal against the sentence.

I by no means have any intention to get out of some kind of punishment but would like it reduced. I’m guilty deliberate failure however I don’t see how failing to place my card in the right place on the contactless card reader is evidence of serious impairment, due to the fact its relatively new technology, ‘contactless’ so there is no specific point I always thought you just hold near it or over it so doing this could be carried out by myself impaired or not impaired.

Can anyone advise, reference or elaborate on what is classed as evidence of serious impairment? Also as the evidence of card reader action is in the statement of staff stating there is no CCTV footage of this it would be their word against mine? Only CCTV footage that identifies me as the driver is myself getting out the car when parked up and walking over to the restaurant.

I have a solicitor gathering the evidence and reviewing the case, however, after being re-assured from solicitors and other professional people working within law that I should expect the minimum and no need for legal support, I don’t know who to trust and what to believe here. I really don’t want to appeal to stand up in crown court where my sentence could be increased and face jail time, magistrate’s court was daunting enough. I understand that a judge would speak to the solicitor before the hearing and possibly say ‘I advise your client to re consider’ and can withdraw my appeal prior to entering but this is a scary thought, and I really would like to avoid all media to myself due to career.

I don’t know whether to take this on the chin and sit the curfew out. I don’t imagine myself getting on the wrong side of the whilst carrying out a 18 month suspended sentence however I don’t want to feel I’m walking on egg shells and scared to go anywhere incase I do something minor like litter or my dog poo’s and get sent to jail.

 

[price1367]

There are several issues that you have raised here....

Firstly you say your cas was "prepared as a not guilty". This cannot happen on your first appearance.
you enter your plea at the first appearance, then, if you plead not guilty, you are asked for outline reasons why and the case is adjourned and a trial date to fixed, when witnesses will be called to attend. Only then is it prepared as a 'not guilty' trial.
They will not warn witnesses to attend your first hearing because the court does not know at that stage what your plea is.

you mention an 18 month suspended sentence. This cannot be given in a magistrates court. Magistrates can give a maximum 6 months imprisonment, a District Judge can give up to 12 months, and in either case it can be suspended for up to 24 months, but you cannot be given 18 months prison, suspended.

now to the bit about deliberately failing to supply. If the court was told about the coin in your mouth (which doesn't work to reduce your reading anyway) that would tend to indicate your deliberate attempt to defeat the breath test. There may also have been evidence in the prosecution account of your behaviour and how you actually "tried" to blow into the machine.

the evidence of serious impairment to justify the highest bracket, and indeed the highest ban within that bracket, is more difficult. There is no real definition of serious impairment, it goes on witness evidence of what they saw, possibly custody video evidence and sometimes evidence of what someone has drunk in a pub before they drive.
in your case, I doubt that the staff simply called the police because they saw you incorrectly use the card machine. If hat was the case they would call the police sereral times an hour. I suspect there must have been more read out to the court about how you behaved to cause the staff to call. You say that you blew a high reading at the scene. Whilst that is not evidence to convict a person, I have often seen it ntroduced n evidence to show a persons likely level of intoxication when they have refused to supply.
i note that you say the police showed that it was your car by using the keys from your pocket to operate the central locking. If you had admitted that you drove there, this would have not been necessary..... Which indicates that you may well have denied being the driver. Again, this could have been an aggravating circumstance.

now to your sentence. Whilst I do not think that you have given a full picture of what went on, I do agree that you have probably been handed a severe sentence that could be reduced on appeal. Remember, you only have 21 days in which to submit an appeal to The Crown Court, unless circumstances prevent this and you he leave from the CC to submit an appeal later.
Whilst it is possible for an appeal to result in a higher punishment, in your case it is most unlikely. You will not get legal aid to appeal, so there will be a cost element to consider.
Was a pre sentence report prepared in your case? You indicate that the whole matter was over on thirst day. Some courts adjourn a case for 1 or 2 weeks for a probation officer to interview you and prepar ar port for the court to consider. Other city courts adjourn a case for a couple of hours for a probation officer to prepare a report 'on the spot.' A pre sentence report should be normal for any case where a custodial sentence is being prepared.
Have a realistic think about the points I have raised above, which could affect the outcome of the appeal.
i would have thought that 24-30 months ban was more fair, I never think that a curfew is appropriate for drink driving, but some courts do use them. I have normally seen 2-3 months.
The suspended sentence could be overturned, but the likely outcome would be no suspended sentence, maybe no curfew but quite possibly 150-200 hours community sentence in the form of unpaid work.
i must add that the £200 fine and costs is very low. Depending on your income, you could well see the fine go up.

You are right to get advice on what you should do, but remember that with a solicitors advice, they never lose, success or not, they still send you the bill. Your initial advice that you would only get the minimum ban of 12 months in your circumstances was obviously flawed. It doesn't go on your lack of previous, it goes on your level of Impairment that can be inferred and your intentions in failing to supply. In your case it seems there was clear evidence that you tried to circumvent the drink drive process, the only debate then was your level of impairment. The District Judge came to his conclusion, the appeal court may well come to a different one, but it was never going to be, nor will it be 12-16 months.

i am not sure why you felt that a suspended sentence and a community order prevented you from going on holiday to the USA. The only question that is asked now on the ESTA form is something like: "have you ever been arrested for any offence which involved serious injury to a person, serious damage to property or a significant loss to the Government?" In your case, it appears that you can answer 'no' to that, which makes you eligible for entry to the USA......

 

[c191]

I have 10 weeks prison sentance suspended for 18 months. Curfew tag for 16 weeks, drink drink course and £200 fine.

It's not a matter of costs I'm concerned about I make quite a reasonable salary of £50,000 a year. I'd happily pay a £2000 fine and take this suspended sentance off my name and curfew.
I think the district judges point of why I was on curfew is due to me being self employed and unpaid work was not sufficient.

The case was prepared as a non guilty plea however I pleaded guilty as soon as the usher said I was in non guilty court.

I have my solicitor reviewing the evidence CCTV etc to see if there is evidence of serious impairment. Hands up, i did deliberately fail to provide by putting the coin in my mouth however if I knew now the outcome I would have provided. People on here crashing with breath in high 100s have lesser sentance than me.

I understand the sentancing guidelines and would just like to be in the bracket down, the ban is 2years 3 months after course which is liveable but the suspended sentance and curfew is causing major anxiety and depression in my life right now!

 

[price1367]

I still say that the case was NOT prepared as a "not guilty plea". Even if you told the police you were going to plead not guilty, the CPS and the court do not start to prepare a case for a not guilty trial until after you have been to court and been asked to enter a plea. Until you have done thT, there is no such thing as a first appearance case being prepared for not guilty.
it may well have been that the District Judge was sitting in a court for not guilty cases, but pleas were changed in those and he therefore had time on his hands, therefore some cases were transferred to him from the other court where magistrates were sitting to fill his time.

The custody video may help to show your demeanour to assess impairment, but there is also what the witnesses say at McDonalds to consider.
on your salary you could well have been fined £2000. I understand that the suspended sentence is a worry to you, but it will only be implemented if you commit a criminal offence, not something like simple speeding or dropping litter. In theory it could be for shoplifting or similar, but a solicitor would argue that it was not related to the original offence for which you were given the suspended sentence and argue that it should not now be changed from suspended to an actual prison sentence. if you behave, a suspended sentence is actually no punishment at all, just the threat of punishment that might happen. If that is replaced with 150-200 hours unpaid work, you will have 20-25 Saturday's tied up with digging gardens or similar, which many would view as genuine punishment!

As I said before, the curfew for 4 months does seem harsh, especially when you look at the suspended sentence as well, along with the maximum ban. An appeal may well reduction the length of the ban a bit, reduce your curfew length but also might increase your fine considerably. As the end of the day the decision is yours on appealing. I am just trying to give an unbiased view on what the outcome might be.

It is POSSIBLE at an appeal for the court to increase the punishment. In your case, if we have a true account of what happened, I very much doubt that this would happen, and some adjustment to the severity would probably be made.

 

[c191]

There was two courts in the magestraes, one was dealing with guilty pleas and other non guilty pleas. I was originally in the none guilty room as my case had been prepared for not guilty. I was then switched to guilty court but as the day went on the court got quieter and I was brought back in to the original none guilty court room. Sentancing council guidelines state on the 3 columns that the sentance is based on first time offender pleading not guilty!

However I assume your right in saying "it may well have been that the District Judge was sitting in a court for not guilty cases, but pleas were changed in those and he therefore had time on his hands, therefore some cases were transferred to him from the other court where magistrates were sitting to fill his time"

Its all what they have as evidence on me and what they will decide as being seriously impaired however they could in theory say anything as there is no definition to what serious impairment is!

I would happily pay band C fine and a 2 year ban however the community order along with suspended sentance is what is the worry here! I know I will not commit another crime within 18 month I just hate to have this against my name. I wish I blew to get a reading as I'm sure the sentance would not have been as sevier based on guidelines. I

Evidence of serious impairment was because of the card reader which was used by the judge however the police were called by staff due to having glazed eyes and slurred speech.

I think I will have to wait until the evidence is reviewed by my solicitor and see what they can justify as serious impairment.

Ideally I'd like to remove the curfew as it really surves no purpose, and remove the suspended prison sentance. Increase my fine to what they see appropriate but I trust this is probably not something that can be negotiated.