Help Trial date :s police procedure wrong and back calculation

Convicted Driver Insurance

Poppy123

New Member
Hi,

Can anyone out there relate to my case...

I had a RTA a few months ago, no one else was involved but me and I wasn't hurt. Thankfully my friend was driving behind me and stopped.
I had no phone battery and my friend no signal so we went to my friends to report it just in case the police drove past and saw a car on the side on the road and to let them know I was ok. The police came to my friends and breathalysed me, I blew 35 but then arrested me and took me to the station where I blew 32 and questioned me and took my mobile off me. They did a back calculation that came back at 45.
I have been for my court hearing (plea not guilty) and the prosecution are still taking it to trial even though the police procedure was wrong (which they also admitted) as I wasn't offered a blood or urine sample, as the law states I should of been offered a blood/urine sample if there was going to be a back calculation. I am annoyed I wasn't offered this as I know I would of been well under the limit. However now I am in limbo for another few months....Any advice or similar situation??
 
Poppy123 said:
Hi,

Can anyone out there relate to my case...

I had a RTA a few months ago, no one else was involved but me and I wasn't hurt. Thankfully my friend was driving behind me and stopped.
I had no phone battery and my friend no signal so we went to my friends to report it just in case the police drove past and saw a car on the side on the road and to let them know I was ok. The police came to my friends and breathalysed me, I blew 35 but then arrested me and took me to the station where I blew 32 and questioned me and took my mobile off me. They did a back calculation that came back at 45.
I have been for my court hearing (plea not guilty) and the prosecution are still taking it to trial even though the police procedure was wrong (which they also admitted) as I wasn't offered a blood or urine sample, as the law states I should of been offered a blood/urine sample if there was going to be a back calculation. I am annoyed I wasn't offered this as I know I would of been well under the limit. However now I am in limbo for another few months....Any advice or similar situation??
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Hi poppy i,m not a solicitor or anything but it all sounds a bit of a balls up if you ask me. The legal limit is 35 as we all know so you wasn,t over the limit and 32 obviously is under so i don,t see a charge there. if you were 35-41 normally you have the option of a blood or urine test which seems you wasn,t offered. How did they do a back calculation and come up with 45 sounds like a back guess to me i,m not 100% sure but i believe a back calculation has to be done on a blood test i,m sure Price will be along soon to advise matbe post on the solicitors forum as they will be more clued up. Have they formally charged you with drink driving or for the RTA is strange i must admit
 
poppy123,
i am on holiday abroad at the moment, so do not have my law books to hand.
The police only have to offer you a blood or using sample if your reading is between 40 and 50. Below 40 there is no requirement to offer the blood / urine option, but the MGDD/A form that the police use does say that if the suspect requests one under 40 then the request should be acceded to. (This would be silly to ask for, because under 40 would be not prosecuted)
pit is a separate issue about the police doing a beck calculation. This can be done on breath OR blood samples. The police will have interviewed you and asked about what you ate and drank, and details of your height and weight. From that the Forensic Science Service will have performed a back calculation to indicate what your reading would have been at the time of the accident.
If you look at this link, you will see the CPS guidance on back calculations and you will see that they should apply a test of "public interest" before they proceed. As the accident was just your car, and just you injured, I would be surprised if the public interest standard was met. If, however, there had been serious injury to someone else, that it would be.
(Do you have previous for drink driving, which could also affect their thinking)
http://www.cps.gov.uk/legal/p_to_r/road_traffic_offences_drink_driving/#a03
 
At the hearing they admitted I should have been offered a blood or urine sample due to my reading and the back calculation. No previous driving offences and a clean license. It was a freezing foggy night on a road with no street lights, it could of been a lot worse but no one was hurt at all and I reported it.
 
Poppy,
there may have been some change in procedure that I am not aware of (as I said, I am abroad so cannot look at my law books) but the Police could have decided to do a back calculation several weeks later, so obviously the offer of a blood sample could not be possible because of the time difference. That is why I say that there is no obligation on the police to offer you a blood sample. I do not get back until the 10th March and will be able to research it better.
Based on what you say, I am very surprised that the prosecution is going ahead, but really the unusual part is that the police even did a back calculation anyway. Some forces, like Staffordshire, will routinely have a back calculation carried out when a blood sample comes back under whereas other forces do not bother.
i still think a letter to CPS asking them to look at the public interest test would be in order. As you have time before your trial, you could ask Sean, the solicitor on here what his view is on the legality of he back calculations without offering blood / urine, and I will gladly look it up for you when I get back.
 
Poppy,
i cannot help myself, even though I am on holiday....!
i have looked up the current procedure for breath tests where the reading is under 40 and this is what it says:

  1. The statutory option applies to any result below 51μg/100ml, even those below the prescribed limit. If thereading is below 40μg it will not normally be necessary for the officer to offer the option, (although if thesubject asks for it the request must be granted). However, the reading cannot be adduced in evidence unlessthe officer has offered the option and therefore this must be offered if a back-calculation is being consideredor it is proposed to use the reading as evidence to support proceedings for impairment.
  2. (ii) Consider back calculation in serious cases. Reference should be made to the Alcohol Technical DefenceForm MG DD/D D1 Notes and the note at A31 and the form completed and submitted to the laboratory orother expert if a decision to proceed is taken.
    You will see the use of the words CANNOT be adduced in evidence..... And MUST be offered. It also says consider back calculation in serious cases, and I cannot see that yours is a serious case.
    the above is taken from e MGDD/A form used by the police. You can see the document here:






https://www.gov.uk/government/uploa...ata/file/229616/MGDD_A_Ver_5_2_1_Dec_2012.pdf

I would be inclined to print out the form, highlight what I have shown above, point out that the Prosecution therefore cannot use your reading of 32, and without that it is not possible to perform a back calculation. Also say that now this has been pointed out to them, if they do not discontinue and you are therefore forced to see your own expert advice, they you will seek to recover your costs when you inevitably win at court. if you feel uncomfortable about doing this yourself then you could use a solicitor, but that will cost.
I would add that these back calculations are pretty accurate, so you were driving whilst over the limit, but the flew in police procedure has given you a get out so you are lucky!
 
Thank you sooooo much . I have my forms here & had to keep reading back to make sure nothing about being offered a blood or urine sample has been written. I questioned myself as I was in complete shock at the time of going to the police station, but always knew if offered to give a blood sample & that is what I would of done. Unfortunately I still face court for trial as the prosecution wouldn't drop the case even knowing their procedure is flawed. :/
 
Poppy,
i know you say the prosecution would not drop the case 'on the day' but that is just the CPS representative. I still think you should write as I suggested and ask for a senior decision maker to review the case, pointing out the the clear procedure required if a back calculation for a breath test result under 40. Also point out their own guidance on these circumstances, which is this:
[h=3]Back Calculations - public interest[/h]When considering a request from the police that back calculations be made, or reviewing a case based upon such evidence, (see also back calculations, above in this section) you should consider whether such a prosecution would be in the public interest. Factors to consider in the context of such a case in favour of prosecution might include:

  • where a considerable lapse of time occurred between the incident of driving and the driver's arrest because of the driver's own culpable actions by, for example, absconding from the scene of an accident;
  • where there are clear grounds for believing the driver to be a danger to other road users, such as the possession of previous drink/drive convictions;
  • where there are other aggravating features, such as the fact that the driver was disqualified from driving or serious injury was caused to another person. You can find the document this is from here: http://www.cps.gov.uk/legal/p_to_r/road_traffic_offences_drink_driving/#a13. I have had 14 years experience in police station custody procedure. During that time there were a number of occasions where I remember back calculations being carried out on blood results that came back under 80, and the person had been involved in a serious road traffic collision. I can recollect the odd occasion where someone blew under 40 and a back calculation was done, because they had been involved in a serious injury collision but I cannot recollect a single occasion where someone blew under 40 and there was a back calculation done for a single vehicle non injury collision. If you cannot afford a solicitor, and you feel unsure about doing this yourself, if you send me a PM with your details I will help you draft the letter, but not until after 10th March when I get back on holiday. ((Mrs Price1367 thinks I am emailing family when I respond on here, if I start doing letters I will be in trouble!)
 
Hi price,

Sorry I have been away on holiday myself to de stress :)
I have got a good solicitor to write a letter for me pointing out the flaw and asking them to review the case. This was about 3 weeks ago and still haven't heard anything back. Is this a bad sign? My Court date is soon.

price1367 said:
Poppy,
i know you say the prosecution would not drop the case 'on the day' but that is just the CPS representative. I still think you should write as I suggested and ask for a senior decision maker to review the case, pointing out the the clear procedure required if a back calculation for a breath test result under 40. Also point out their own guidance on these circumstances, which is this:
Back Calculations - public interest

When considering a request from the police that back calculations be made, or reviewing a case based upon such evidence, (see also back calculations, above in this section) you should consider whether such a prosecution would be in the public interest. Factors to consider in the context of such a case in favour of prosecution might include:

  • where a considerable lapse of time occurred between the incident of driving and the driver's arrest because of the driver's own culpable actions by, for example, absconding from the scene of an accident;
  • where there are clear grounds for believing the driver to be a danger to other road users, such as the possession of previous drink/drive convictions;
  • where there are other aggravating features, such as the fact that the driver was disqualified from driving or serious injury was caused to another person. You can find the document this is from here: http://www.cps.gov.uk/legal/p_to_r/road_traffic_offences_drink_driving/#a13. I have had 14 years experience in police station custody procedure. During that time there were a number of occasions where I remember back calculations being carried out on blood results that came back under 80, and the person had been involved in a serious road traffic collision. I can recollect the odd occasion where someone blew under 40 and a back calculation was done, because they had been involved in a serious injury collision but I cannot recollect a single occasion where someone blew under 40 and there was a back calculation done for a single vehicle non injury collision. If you cannot afford a solicitor, and you feel unsure about doing this yourself, if you send me a PM with your details I will help you draft the letter, but not until after 10th March when I get back on holiday. ((Mrs Price1367 thinks I am emailing family when I respond on here, if I start doing letters I will be in trouble!)
Click to expand...
 
I think it is a good sign, it probably means they are having discussions with the police, rather than just dismissing it out of hand.
when is your court date?
 
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