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Thread: how successful is hipflask defence with no witnesses?

  1. #11
    Jo Smith is offline Member
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    Default Re: how successful is hipflask defence with no witnesses?

    [QUOTE=price1367;116577]You have had 3 people comment on your alleged circumstances, and we are all skeptical that this would hold up in court so perhaps this is telling you something...... Whilst obviously not good, agreed and take the view points on board.

    Obviously if summons does arrive I will seek legal advice in the first instance prior to entering a plea at court.

    I agree £1500 for a "guilty" plea wouldn't necessarily be worth it, as there is no way around a ban in this case, however I am concerned if “Newton Hearing.”(not heard of this term prior so thank-you!) wasn't accepted not only 23-28 month ban,which also means loss of employment but also community service (which in the circumstance I'd prefer opposed to a fine) would be a concern. Likewise if not guilty plea entered and subsequently convicted with aggravating features not only car accident but kids in my car would this push it into the custodial consideration bracket?

    I believe the £5k includes specialists reports etc but would need to clarify if I went this route.

    Can one not plead not guilty and if convicted then plea mitigation? eg first defend and if that fails, then mitigate on a newton hearing basis as well as other mitigation eg loss of job which is also a financial punishment to the family and not me individually etc.kids to taxi round, first offence etc and ask for the course too?

    Could I look to defend myself, or do I need a licence to practice, not that I'd be any good but think if adjourned for trail, chances of police and witnesses turning up ect coupled with hip flak defence and technicality questions such as the time not appearing on my copy , the MDAM?? form not filled out and signed for by me ect. edge my bets or if representing myself am I best pleading guilty? I guess there's 11 month difference between the lowest of the second bracket and 28 on the top of third bracket.


  2. #12
    price1367 is offline TTC Group Associate Director
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    Default Re: how successful is hipflask defence with no witnesses?

    Simple bit first, you can defend yourself, you do not have to be ‘licenced’. But that should only be for a guilty plea. It is not a practical option to run a not guilty without a lit of knowledge of the law around drink driving in general, and ‘hip flask’ Defences in particular.
    you can plead not guilty and then, if found guilty, submit mitigation as to the circumstances. There is no bar on this, but you have to think of the practicalities. The magistrates are human, they hear another human say they didn’t drink drive. They hear the other human take an oath and swear that they drank 3 litres of strong cider in 10 minutes. They find him guilty, in other words they feel that they have been lied to. Then the solicitor asks the magistrates to think kind thoughts about the other human because..... hardship, job loss? , maybe..... remorse? NO, timely guilty plea? NO..... so it can be done, but the effect is greatly diminished and they are certainly not going to go down a sentencing bracket where there has been an accident, kids in the car and no admission.
    solicitors fees usually do not include any experts reports, and usually have VAT added to them at the end so beware of ‘fee creep’. If you feel you have a good case, it is worth spending money on a quality defence if the solicitor has a proven track record - ask for proof!
    On the subject of a Community Sentence, the court now considers a community order in the 17-22 month bracket as well, although it is les likely. The rules were revised a year ago or so.
    You are right to wait to see if you get a summons, no point in spending money now just in case it does not proceed. If you do get a summons then you can ask for disclosure of the prosecution case before the hearing. This should be served 7 days ahead but in reality is not sometimes not done until the day of the first hearing. You should ask for advance disclosure to include any video evidence that the prosecution will rely on. In court you can ask if you can enter no plea at this hearing, because you have only just received the evidence, or a formal not guilty plea whilst you review the evidence, when you could change your plea before the next hearing if necessary.
    You can do all this yourself, without a solicitor. Then look at the video evidence that the witness apparently recorded. Better still, get a friend - a good honest friend - to look at it and tell you how it makes you look and sound. Not just someone who will give you loads of sympathy and not an honest opinion. Then you decide what to do.
    Look, I don’t know what happened, not do the other 2 people who have commented. Neither does your solicitor, he / she will just act on your instructions. People do drink after an accident and sometimes it is not the truth that comes out, it is which version of events is more credible.
    I am just trying to put things into perspective for you as to how things can go, and a large part of that is down to you. There is what you said on the night, but then there is what is admitted or not in court that really counts because that is what the magistrates see for themselves.

    i have read through the notes on this again and do think that the guilty, but with a Newton Hearing on the level of alcohol to take it down a bracket does sound attractive, particularly if there is a video that indicates that you were impaired to a degree at the scene. On the other hand, you can say “well I know I had not drunk before I drove, my story might not be credible but I will spend whatever is necessary to put in a quality defence for my own peace of mind, and if I lose well at least I was true to what really happened....”

  3. #13
    Jo Smith is offline Member
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    Default Re: how successful is hipflask defence with no witnesses?

    Thanks Price, all makes sense.
    If summons does come through, I just hope I can get the disclosure prior to the court date, as I think it be even harder to enter no plea than plead not guilty - as if not guilty then what have I got to worry about and why do I need to see the case against me before submitting a plea? My only concern with the video, is whether it's been edited/cut and as I was in shock and shaking, what this could be perceived as.

    If I go the Newton hearing way, again this then opens up to some extent a can of worms, in terms what I say what I had drank, where and why prior to driving and then consumed some more. Also if the BAC calculation supports my initial claim, but then I say I had consumed some prior it would then discredit the bac calculation evidence wouldn't it?....

    In both events if the court feels they've been mislead would I then not face a charge of perverting justice and could be liable to life in prison?

  4. #14
    Bravo is offline Member
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    Default Re: how successful is hipflask defence with no witnesses?

    There's no chance of you being charged with perverting the course of justice. Infact, even if you plead not guilty, then there's a good chance you won't even have to give evidence in court.

    Personally I don't think you would be overly punished for being found guilty, rather than pleading guilty. You clearly did drink 'some' alcohol after driving.. so even if no defences are found, maybe there would be room for a plea bargain with the CPS? I've seen some cases where an agreement has been reached where the defendant pleads guilty to driving with 40/ug alcohol (the lowest amount required for prosecution) and then obviously they get the minimum 12 month ban/small fine.

    I would definitely suggest instructing an specialist. By turning up on your own and pleading guilty, there's a lot to lose.. and there could be a lot to gain by actually seeing the evidence against you. There may be very little. It's not unusual for the CPS to bring these 'routine' cases to court with very little substance - because the overwhelming majority of people plead guilty straight away and then that's that. If they are challenged then quite frequently you'll find paperwork haven't been filled out, procedures have been done wrong, discrepancies in witness statements etc etc
    Last edited by Bravo; 01-24-2018 at 06:50 PM.

  5. #15
    price1367 is offline TTC Group Associate Director
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    Default Re: how successful is hipflask defence with no witnesses?

    I agree that you would not be charged with perverting the course of justice, but if you were to plead not guilty on the basis that you drank alcohol after driving, and it put you over the limit, you WOULD have to give evidence about that. The technical defence form would indicate if the claim is credible that the amount drunk would make the difference, but you would HAVE to give the evidence that you did in fact consume the alcohol alleged. This would leave you open to cross examination about the circumstances that I outlined earlier as to how believable your claim is.
    it is the norm that a person does not have to give evidence in their own defence, but in the case of the “hip flask defence” the law presumes that what was in your system when you were breath tested WAS what was in your system when you drove. You therefore need to give evidence about your drinking, so that the technical defence form can then be submitted to support what you claim. Without the evidence of drinking, the technical defence form has no standing.

  6. #16
    Jo Smith is offline Member
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    Default Re: how successful is hipflask defence with no witnesses?

    Convicted Driver Insurance Quotes
    Thanks both.

    If only I had known that the law presumes you drove with what you have in your system at the time. I would of acted differently.

    I was also a bit confused about the bac calculation anyway as I was told A) the decision to prosecute "rides" on what the lab results say and B) The police only do BACs calculation in extreme circumstance, so for them to do it for me in the circumstance to collaborate my version seems odd but I now understand they have to investigate ALL evidence for both for and against me.

    MY enhance DBS still hasn't come back yet either so now concerned whether this is being held up due to the on going investigation.

    I appreciate still early doors, but I have not received anything further yet.

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