Failed to provide specimen in England

[regretfull89]

Hello

I've failed to provide a specimen/specimens. Was dropped off at my van which i use to sleep in for work got in it then reversed into a wall, i was sick and scared and clearly very upset and had fallen asleep, My whole life revolves round the use of this vehicle as i am from Scotland and work all over England in some of the most rural areas which means accommodation is very hard to find at last minute. I've never felt so ashamed. Police came and arrested me i was quite drunk and really scared with everything that was happening i think id passed out.

I can prove that i had no rear reverse lights, through Facebook asking for advice so hopefully that can be backed up that it wasn't through visual impairment through alcohol there was also no damage to anything other than my vehicle.

The accident happened right next to the campsite i was staying at. I simply was trying to move my vehicle off the road to get in to the campsite as i was feeling really sh*t.

I've also been feeling really tired depressed and anxious recently about my life recently I've been living rough in a very small van for two years to try and save whatever money i earn, The type of job i'm in is really hard to find work so I've been working 11 nights on 3 days off and having to drive all the way home to Scotland within the 3 days as well as see my girlfriend which i now no longer have due to a recent break up I've been on nights the past year so I've been exhausted mentally and physically.

At the station i failed to blow hard enough into the tube i was an emotional wreck.

Please advice is needed

 

[price1367]

When a drink driver moves a vehicle such a short distance that there was minimal risk to the public then a defence of "de Minimis" can be put forward to not disqualify. This normally involves a matter of yards, which is all you seem to have done.
However, in your case there are 2 problems with this.
Firstly you only reversed a matter of yards, but intended to drive into the campsite. A campsite, unless there is some physical barrier to prevent entry, is a public place and you can be guilty of drink driving there as well, so taking your INTENDED journey into account, De Minimis may well have failed.
Secondly, minimal distance in your case is academic, because your last sentence messes it up..... You didn't provide a sample! All the police now have to show is that they Reasonably believed that you were the driver, and that you failed, without reasonable cause, to provide an evidential sample of breath - case closed, obligatory disqualification. The length of the ban varies between 12-36 months according to the level of intoxication the police can demonstrate and the reason put forward for the failure to supply.
The ban can be reduced by up to 25% if you complete a drink drive rehabilitation course, and you will have to undertake a medical at the end of the ban as failing to supply makes you a "High Risk Offender"

 

[Mclanelli]

The distance you moved the vehicle is irrelevant. As is your brake light issue.


You haven't been charged with drink driving, you have been charged with failure to provide a specimen. So unless you can prove that you had reasonable cause not have done so, then you will be convicted.

The minimum sentence that you will receive is a twelve month disqualification.

What you have to bear in mind, is that you hit a wall, which is an aggravating factor. There could have been someone stood next to that wall, and that is what the magistrates have to take into account.

The fact that you knew the brake lights were defective but drove the vehicle regardless, could also be an issue in the eyes of the magistrates. So you are better off not mentioning that, if it is not already in your statement. If that is read out in court, it will be seen as another aggravating factor.

You could come away with a 12 month ban minus 25% with the benefit of the drink drive awareness course. Or you could be looking at around 20 months with said course discount. Its hard to say really, but the higher end is 36 months, but you wont get that.

You need to be straight with the court, and don't feed them a sob story. Put your hands up and admit the offence, and tell them that you panicked. Show some humility and I doubt you will receive anything higher than 18 months.

The variation with sentencing for this offence often come down to the individuals attitude in court, and your willingness to put up your hands

I hope you get a result.

Regards
M

 

[Mclanelli]

I missed a couple of points on my last message.

You stated that you passed out, and that you were physically sick. I am assuming that this was due to the alcohol intake, and not a medically related issue?

The reason that I ask is because if these two factors were due to alcohol intake, and this information is described in the police statement, then it is likely that the prosecution will imply that you were severely impaired at the time of arrest, due to the alcohol levels consumed.

In this case the bench for sentencing is raised. It is very unlikely that you would only receive a 12 month disqualification were severe impairment was implied, and accepted by the courts.

The fact that the caravan site was a populated area with the likelihood of children being present, is another factor which the magistrates will have to consider.

You really need to read the police statement and see what descriptions are contained.

I have listed below a copy of the sentencing guidelines and here is the link: http://www.drinkdriving.org/drink_driving_sentencing_guidelines.php


M

Examples of nature of activity	Starting point	Range	Disqualification	Disqual. 2nd offence in 10 years
Defendant refused test when had honestly held but unreasonable excuse	Band C Fine	Band C Fine	12 - 16 months	36 - 40 months
Deliberate refusal or deliberate failure	Low level community order	Band C Fine to high level community order	17 - 28 months	36 - 52 months
Deliberate refusal or deliberate failure where evidence of serious impairment	12 weeks custody	High level community order to 26 weeks custody	29 - 36 months	36 - 60 months

 

[regretfull89]

I've had my first phone call today with alcohol arrest referral scheme. I was told i was found slumped in the seat upset and had been sick. The campsite I'm staying on is currently closed. Its a woman and her husband who owns the campsite they have kindly let us stay there whilst end of season so it's just me and another colleague on site.

They probably will say i was drunk at the time. The van was parked just off the campsite on quiet road layby.

Do you think i could go to jail for this? I've not had one proper sleep in almost a week now. I also have a very low tolerance to alcohol pretty much every time i drink (which is rare due to d&a testing at work) i am sick.

I missed a couple of points on my last message.
You stated that you passed out, and that you were physically sick. I am assuming that this was due to the alcohol intake, and not a medically related issue?

The reason that I ask is because if these two factors were due to alcohol intake, and this information is described in the police statement, then it is likely that the prosecution will imply that you were severely impaired at the time of arrest, due to the alcohol levels consumed.

In this case the bench for sentencing is raised. It is very unlikely that you would only receive a 12 month disqualification were severe impairment was implied, and accepted by the courts.

The fact that the caravan site was a populated area with the likelihood of children being present, is another factor which the magistrates will have to consider.

You really need to read the police statement and see what descriptions are contained.

I have listed below a copy of the sentencing guidelines and here is the link: http://www.drinkdriving.org/drink_driving_sentencing_guidelines.php


M

Examples of nature of activity	Starting point	Range	Disqualification	Disqual. 2nd offence in 10 years
Defendant refused test when had honestly held but unreasonable excuse	Band C Fine	Band C Fine	12 - 16 months	36 - 40 months
Deliberate refusal or deliberate failure	Low level community order	Band C Fine to high level community order	17 - 28 months	36 - 52 months
Deliberate refusal or deliberate failure where evidence of serious impairment	12 weeks custody	High level community order to 26 weeks custody	29 - 36 months	36 - 60 months

 

[regretfull89]

Hello Again

The campsite is closed to public. The owner has kindly let me and one other colleague stay there. The wall i reversed into was on a country road layby not on the campsite itself.

Do you think i could go to jail for this? I'm really worried now.

I had my first session with alcohol referral scheme today. In the statement it said that i was found slumped in the vehicle and had been sick and was upset. I refused roadside and at the station.

I must also say i will be pleading guilty. I am looking for a plea of mitigation taking into account without my licence my job is over, I've recently been promoted and put through tickets to drive plant.

 

[regretfull89]

Also do you think i can get a hold of a police statement? or can a solicitor do this for me?

 

[price1367]

The police statements and any other evidence is normally only released if you enter a not guilty plea, but there are costs involved with entering a NG plea.
The best thing you can do (and you do not need a solicitor for this) is to write giving your personal details, together with the date and time of your detention, asking to be supplied with a copy of your custody record. This will show the reason for your arrest, as explained by the arresting officer, and details of your demeanour and what you said about your health when booked into custody.
you can also ask to be supplied with a copy of the video relating to your time in detention, but if you were in a bad way it might not make pleasant watching. Someone at the police station has to view and edit the tape, because they have to remove images of other persons in custody who may appear on camera at the same time. If that person felt it was "interesting" because of how bad you looked, that could prompt the police to introduce it as evidence of how impaired you were. Because of that, I would be inclined to settle for the custody record.
you can submit character references to try to reduce the sentence, and evidence that you will lose your job (and sleeping place) but that will not affect the fact that you will be disqualified, just limit the length. You will do well to be in the middle sentencing bracket from what you have outlined, unless significant impairment is shown by the video ...... And then you get the top range.

 

[Mclanelli]

Also do you think i can get a hold of a police statement? or can a solicitor do this for me?

Yes, either yourself or your solicitor can obtain a copy of the statement from the courts, prior to your actual court date.

I am assuming that you haven't had your court date confirmed yet?

In relation to your previous question, no. I don't believe this offence has reached the custodial threshold for sentencing, given the circumstances which you have described.

I am not familiar with the alcohol referral scheme. I am assuming that the quote regarding how the police found you was taken from their (police) statement. It could suggest that they are going to imply serious or sever impairment in the statement, but you wont know until you check it over.

Your solicitor will mitigate on your behalf, and I believe you should be entitled to a duty solicitor for such a charge. You can phone the magistrates and ask them for confirmation of this. Alternatively, you should contact a criminal law firm in your area, and they will confirm this for you.

Regards
M

 

[Mclanelli]

The police statements and any other evidence is normally only released if you enter a not guilty plea, but there are costs involved with that.
the best thing you can do (and you do not need a solicitor for this) is to write giving your personal details, together with the date and time of your detention, asking to be supplied with a copy of your custody record. This will show the reason for your arrest, as explained by the arresting officer, and details of your demeanour and what you said about your health when booked into custody.
you can also ask to be supplied with a copy of the video relating to your time in detention, but if you were in a bad way it might not make pleasant watching. Someone at the police station has to view and edit the tape, because they have to remove images of other persons in custody who may appear on camera at the same time. If that person felt it was "interesting" because of how bad you looked, that could prompt the police to introduce it as evidence of how impaired you were. Because of that, I would be inclined to settle for the custody record.

I'm sorry Price, but your advice on obtaining a copy of a police statement is incorrect.

When you arrive at court you will given a envelope containing a copy of the police statement. This is an identical copy of what the prosecution team receives. You are able to obtain a copy of this document prior to your court date. There is no cost involved in this process.

You are entitled to see any evidence against you before entering a plea in any criminal proceeding. It is in the prosecutions interest to make you aware of the evidence against you.

Regards
M

 

[regretfull89]

Spoke to a solicitors today. Its going to cost 900+vat they ensured my that i would have a barrister present with me at court. They have strong positive feedback rating so I'm going to go with them. I have a court case too.

At the end of the day what is done is done. I'm more worried about jail or unpaid work.

How do the courts work out how much to fine you? My wages go up and down like a yoyo as I'm zero hours without guaranteed set hours.

 

[Mclanelli]

You should be entitled to a duty solicitor for this offence. It should be free, or partly subsidised.

For a guilty plea there is no point in spending that much money.

Address the magistrates yourself. Apologise for being brought before them. Explain briefly what happened, and what impact the ban is going to have on your life, and then thank them for their time.

That's all you need to do.

The fines vary depending on the punishment. Community punishments will be considered for this offence, but you will be required to undergo a pre sentence report first, in order to access your suitability. Curfews and alcohol programmes are also available to the courts for sentencing on this offence.

£1000 is a lot of money for someone to simply explain what happened. It's not a defence. It's a two minute overview of the facts that you have provided.

In fact a magistrates bench can take more pitty on someone who is representing themselves.

It depends on how confident you are at speaking in public. But they aren't looking for an Oscar style performance.

M

 

[price1367]

I agree that it is sometimes the case that CPS hand over their case summary on attendance at court for drink driving. This is a requirement for some types of offences but not for others.
Here is the CPS guidance on disclosure:

[h=2]Principle[/h]A defendant charged with an offence that can be tried in the magistrates' court is entitled to receive details of the prosecution case before:

• deciding whether to elect trial at Crown Court;
• deciding whether to consent to summary trial; or
• being put to plea, if s/he is under 18

The provision of these initial details is regulated by Part 10 of the Criminal Procedure Rules 2010.

[h=2]Guidance[/h][h=3]Review[/h]The prosecutor must review the case and make an informed decision about whether each witness statement is to constitute used or unused material and what is to be served on the defendant.
Service of the statement of a witness (or part of it) as initial details of the prosecution case will restrict the ability of the prosecution not to call a witness at a summary trial of an either way offence.
The reviewer needs to record clear instructions as to what material should be provided. The initial details package should then be prepared in accordance with the reviewer's instructions.
Particular care is needed with material in digital format to ensure that that irrelevant or unnecessary information is not served. A single DVD containing (for example) telephone billing information, cell site analysis or CCTV material may contain a very large amount of material, ranging from the irrelevant to the highly sensitive.
The early service of unused material is dealt with in the Disclosure Manual elsewhere in Legal Guidance.

Top of page
[h=3]Details to be supplied[/h]The Rules require the service only of that evidence upon which the prosecution proposes to rely.
Rule 10.3 requires that initial details of the prosecution case must include:

• a summary of the evidence on which that case will be based; or
• any statement, document or extract setting out facts or other matters on which that case will be based; or
• any combination of such a summary, statement, document or extract; and
• the defendant's previous convictions.

The right to a fair trial under Article 6 of the ECHR (Archbold 16-57) does not require that prosecution witness statements in summary proceedings have to be disclosed to the defence before trial: R v Stratford JJ., ex p. Imbert [1999] 2 Cr.App.R. 276, DC.

http://www.cps.gov.uk/legal/a_to_c/advance_information


You will see from the first part that disclosure is only a requirement in indictable offences or offences triable either way or when the defendant is under 18.

Drink driving is a summary only offence (It can only be tried in a Magistrates court) so this requirement does not apply. It does not mean that CPS will not offer to give the summary, but they cannot be compelled.

In some areas, the police only supply an offence summary and the MGDDA forms (the forms completed by the officers when doing the breath test procedure) and detailed statements may only be prepared if a not guilty plea is entered, to save unecessary paperwork when most defendants plead guilty anyway.. Consequently what CPS might DECIDE to disclose in a drink driving offence, rather than having an obligation to provide in cases with alternative methods of trial, will not be the full evidence available until a not guilty plea is entered and other evidence is then gathered for service 7 days prior to trial.
My mention of the cost was in relation to the cost of the not guilty plea, not the cost of obtaining prosecution evidence which is free.The usual costs claimed by CPS are £85 for a guilty plea, but £620 for a not guilty plea. There is also, up to 24th December (when it is being scrapped) court costs of £150 for a guilty plea or £520 for a not guilty trial.

Mclanelli's advice on a solicitor and court is correct and sound. £1000 is much better spent on your fine and associated costs. I would add that the duty solicitor at court IS free, there cannot be a charge, but, whilst he will be available for advice prior to your case, he only MAY speak up for you at court. If the case is viewed as carrying a significant custodial risk, then he can claim for his time in speaking up for you. If there is no significant risk of custody then you have to depend on his time availability and his willingness to spend time in court where he cannot recover any money through legal aid. (They get paid a flat fee for being there for the day by the Legal Aid Board)

As to the fine, the guidance for drink driving is a Band C, which is a starting point of 1.5 times your weekly disposeable income, with a spread of 1.25 to 1.75 times. Your disposeable income is determined by getting you to fill in a "means test" form at court where you show your income and fixed outgoings. in the case of casual work, they will ask for something like the average of 3 months wages. I would suggest producing confirmation from your employer that you will be out of work when you cannot drive. Courts can, but do not always, then base your income at the lowest level they are allowed to (which I believe has just been increased to £120 per week) and fine you accordingly.

 

[regretfull89]

I was wanting to use a solicitor to present a plea of mitigation which i don't think a duty solicitor can do with such little time.
I also want to put in an early guilty plea in hope for a lesser sentence. I understand writing an apology letter could go in my favor too but I'm useless at writing letters and my grammar is shockingly bad. Do you just show up on the day with the letter? I don't know how this works? Could you explain how i go about ensuring that the judge reads the letter before the case?

 

[price1367]

There was a good summary of what you should say in Mclanelli's reply a couple of posts ago, and note what was said at the end: "they aren't looking for an Oscar style performance."
they hear slick presentations from solicitors day in day out, often the same words just shuffled into a different order so someone standing there saying in their own words how the offence came about, the impact that a driving ban will have on you, how sorry you are for what you did and taking up the valuable courts time is likely to have as good, if not a better impact on the magistrates. It is a 2 minute thing. Write down what you want to say, or get someone to write it down for you in your own words. Grammar does not matter, honestly. The magistrates will not read any letter before your case starts. An early guilty plea can have an impact on your fine, but the court does not give a discount on the ban.

When you get to court, ask to speak to the duty solicitor. Hopefully you will get a short meeting with him (or her of course) to explain your circumstances and that you want to plead guilty. They will give you a bit of advice and tell you if they are going to be able to go into court to speak for you. They will probably just take your notes and polish them a bit. Remember, although you only get a short meeting, they will have dealt with many cases effort, and mitigation comes naturally to them.
if the court is very busy, and the duty solicitor is going to be tied up with other more significant criminal matters (that they can earn money from) then they may just give advice and say they are not able to actually be present in court. If that happens, you go into court when you are called, the offence is put to you, and you say "guilty." the CPS outline the case and you are then asked if there is anything you want to say.
You can then:
1. Tell the court in your own words how it came about briefly,
or
2. read out what you have prepared,
or
3. hand in what you have prepared.
In that order of preference...... You should, in one of those ways:
Explain why you didn't provide a sample, express regret, tell them the impact that the ban will have on your life (and from what you have said it is big) and hand in any character references or perhaps a letter confirming you will be out of a job because of losing your licence.
The magistrates will then consider your punishment. You will have been given a means test form when you arrive, asking for your financial details. They will use that to decide your fine, as detailed before. The length of your ban will be be determined by which "bracket" you fall into of why they feel you didn't provide a sample and the level of intoxification you were under.
I should add that the prosecution may well suggest that everything about your behaviour that night showed how drunk you were. Listen to how they present the "facts" to the magistrates, they when you have your say, you can put your slant on the events. Drunkenness can be confused with panic and fatigue so you could stress how tired you were and desperate because your vehicle (which is your home and livelihood most of he time) had crashed...... Just word something like that (if true) yourself.
You could also add that you have heard about an education course that might help you understand where you went wrong. (I mentioned the Drink Drive Rehabilitation Course before. This, if completed, will reduce your ban by up to 25%. It has to be offered, and accepted, on the day in court - but you do not HAVE to complete it, just serve your full ban. The important thing is the offer and acceptance on the day, it cannot be requested later. If you check with the duty solicitor, he will tell you if your particular court routinely offer the course to drink drivers. If they do, don't mention it yourself, they will offer it when they tell you the length of the ban.
In some areas the offer rate is 97%, in others it is only 50% !

 

[Mclanelli]

If you are only entitled to a free consultation before going into court, the duty solicitors usually offer the option of paying an additional fee for them to actually speak to the magistrates on your behalf. The fee is usually between £200 to £350. So you would then get a full representation.

The advantage of a duty solicitor (besides the cost saving) is that they are in front of the same magistrates and prosecutors day in day out. You could get a better result than with a solicitor from out of town.

Make sure that you sign in an hour earlier than the time stated on your summons. The earlier you are in the court, the better it usually goes. Make sure you wear a tie and a collar, or a suit.

Good luck.

M