DJLINNEN
Member
With hastings blew 51 the only attempt due to chest pains, blood come back 79
Admiral Insurance Drink and Drugs policy
- Thread starter Depressed Dad
- Start date
Depressed Dad
Established Member
Hastings don't provide cover under the policy.
It's not clear if they wait for the case to go to court first or if they just settle with the third party. Admiral wording is clearer.
They'll be using the breath result to invoke the 'No cover'
Maybe a good lawyer can persuade a court that the blood results only should count.
It's not clear if they wait for the case to go to court first or if they just settle with the third party. Admiral wording is clearer.
They'll be using the breath result to invoke the 'No cover'
Maybe a good lawyer can persuade a court that the blood results only should count.
DJLINNEN
Member
Yeah I thought as much, just ton of stress with the waiting game for court date and all the paperwork from insurance coming at a later date. Appreciate the reply
BigTom
Established Member
As far as the law is concerned, you are not a drink driver. Your bloods came back below the limit, therefore you should not have had your insurance cancelled for being a drink driver. The roadside breath machine is not evidential as it is not fully calibrated, therefore Hastings cancelling your insurance was surely a breach of contract, as technically you had done nothing wrong. Did you tell them the breath reading as they should not have found this out from elsewhere?
I would get your legal representative to go back to them and request they cancel their reclaim of costs based on you legally not having done anything wrong in respect of their drink driving policy.
DJLINNEN
Member
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DJLINNEN
Member
Yeah was my own fault never been in a situation as serious as I'm in before potentially looking at few year custodial, so thought I'd be straight but hoping at end of day fact that bloods state I'm under and that there was only the one reading took, been honest about everything all the way through. Just a waiting game now to see what happens, stress is driving me crazy had all this hanging over my head since July still no court date.
price1367
TTC Group
That is not necessarily the case,
this is what Hastings policy says:
You’re not covered if an accident happens while you or anyone entitled to drive under your current Certificate of Motor Insurance:
• Is found to be over the prescribed limit for alcohol in the country where the incident happens
• Is driving while unfit through alcohol, drugs or other substances, whether prescribed or not
• Doesn’t provide a sample of breath, blood or urine when required to do so, without lawful reason.
point two says ‘driving whilst unfit through drink.....’
you are right that the 51 breath reading at the roadside is not proof, but proof in criminal law. Also 79 in blood was provided several hours alter.
It still may be the case that the police will consider a back calculation to prove what the reading would have been at the time of the accident.
All that relates to criminal law, where the facts have to be proved “beyond reasonable doubt.” but the claim for the costs of the accident are based on civil law, where decisions are based on “on the balance of probabilities”.
It is quite possible for someone to be found not guilty in a criminal court and then have the case proved against them in a civil court on the same ‘facts’.
Depressed Dad
Established Member
The problem here is the exclusion clause in the policy.
No cover is provided if you are over the prescribed limit. No mention of having to be convicted.
The roadside breath test is presumably enough for Hastings. It’s over the 35mg limit.
If I was the OP I would look carefully at what he has admitted on this forum.
Civil cases are determined on the balance of probability. You’ll need a good lawyer.
Depressed Dad
Established Member
price1367
TTC Group
We may both be wrong of course!
I thing these exclusions are very harsh on motorists, but it cannot be that someone can take out insurance and it will cover them no matter how stupidly they behave.
Insurance covers the unexpected. They will refuse cover for the car being stolen if it has been left unlocked, because it is likely that it will be stolen and you should take reasonable precautions to prevent your loss.
The exclusions should be made clear, but to be fair, the ones I have read are in “what we do not cover”. And that is something that everyone should read When they take out a policy.
I thing these exclusions are very harsh on motorists, but it cannot be that someone can take out insurance and it will cover them no matter how stupidly they behave.
Insurance covers the unexpected. They will refuse cover for the car being stolen if it has been left unlocked, because it is likely that it will be stolen and you should take reasonable precautions to prevent your loss.
The exclusions should be made clear, but to be fair, the ones I have read are in “what we do not cover”. And that is something that everyone should read When they take out a policy.
Depressed Dad
Established Member
I agree with you on many points.
I think the exclusion clause used by several insurers is harsh. It should depend on a criminal conviction. It should be consistent across all insurers but I appreciate they may need some competitive differences.
Most RTCs are not accidents. Someone is at fault.
Using a phone whilst driving is a deliberate act just as much as having a drink.
A careless or dangerous driving conviction without alcohol involved?
Majority of drivers don’t read policy T&Cs.
How many named drivers do?
Most find out the hard way. You only know how good an insurer, or the policy is when you make a claim. It’s a rarity.
Maybe compulsory insurance needs to be sold differently. In Australia I think it’s covered in the road tax.
I said it all before, numerous times.
BigTom
Established Member
I think the key words are 'over the prescribed limit'. To be over the prescribed limit you have to be given a recognised calibrated test, the roadside test is an indication (maybe very accurate but still only an indication) and that is why it is not admissible. They took an evidential blood test and this came back as under the limit. If the OP had been to court and they said to the magistrates that he was under the limit but the ebay breathalyser they used suggested he was over, he would be acquitted - same thing. The insurance company cannot dictate law, they have to abide by it. As far as the law is concerned, as it stands, there is no proof he was over the prescribed limit and therefore they were wrong to cancel the insurance for a breach of terms.
They could argue that on the balance of probabilities he was over the limit, or at least unfit through drink, but I still feel that this is worth legal council pursuing.
They could argue that on the balance of probabilities he was over the limit, or at least unfit through drink, but I still feel that this is worth legal council pursuing.
price1367
TTC Group
I disagree, the key words are: “Is driving while unfit through alcohol” which does NOT require an actual reading in breath or blood.
As I said before, the reading of 79 was several hours later, so the reading at the time must have been hight. added to that, the reading the police obtained is “not less than 79” with 6 having been deducted to guarantee its accuracy as a minimum.
Now this is a civil case and it is only on the “balance or probability” then the court could decide to count that as 85.
I do agree that it is well worth getting expert legal advice for this case.
Like anything, circumstances are capable of being interpretated In different ways,, but it is wrong to say that as the roadside breath test of 51 was on a machine that is not guaranteed accurate, and the police result in blood was under the limit for prosecution in a criminal court, (but obtained several hours later) that those facts are insufficient to be held to be significant in a civil court case.
Depressed Dad
Established Member
I want to agree with you but using the 'balance of probability' the odds are stacked against the OP.
The roadside breath tests use calibrated devices. The type approval is Here
The insurers lawyers will argue that blowing 51 on one of these devices is a definite indication of being over the prescribed limit even if the device accuracy is +/- 45%
Also 5 hours later he has scraped through an evidential blood/alcohol test.
Who knows what he said under caution? He certainly said too much elsewhere on here.
The accuracy of the evidential test has an impact on the sentencing for a drink driving charge. The insurer just needs a pass or fail on the exceeding the prescribed limit. It doesn't need the accuracy of an evidential test.
AFAK the police/cps don't prosecute unless you are at least 40mg which makes the clause even more galling. However, people will argue that the policyholder and named drivers are bound by the policy T&Cs which are not dependent on a conviction.
The OP needs good legal advice on whether the roadside test can be discounted.
Depressed Dad
Established Member
I'm slightly behind again. I need to type a lot faster
How can the insurer determine that the driver was unfit to drive through alcohol without at least begin charged with the offence?
It's a subjective test and would surely need a copper or a medic at the roadside to give it credibility.
Alternatively an admission by the driver or a witness to say they were seen drinking several drinks.
price1367
TTC Group
It is possible to look at a persons gender, size and other factors to come to an informed indication of what their reading in blood was at the time of an accident.
If the blood sample was taken 5 hours later, unless they consumed alcohol post accident, then a ball park figure would indicate that the person was about twice the legal limit when the accident happened. This could still be done by the police in this case and then add a charge of drink driving, but as they allege dangerous driving they may not bother, but the insurance company could certainly go down this route and that would be sufficient easily for a civil court.
I am not trying to be negative for the original poster, but if all he is told is “it is unreasonable, the insurance company cannot win a case like this without proof” etc then he will be reassured and not consider what the insurance company case may will be.
If the blood sample was taken 5 hours later, unless they consumed alcohol post accident, then a ball park figure would indicate that the person was about twice the legal limit when the accident happened. This could still be done by the police in this case and then add a charge of drink driving, but as they allege dangerous driving they may not bother, but the insurance company could certainly go down this route and that would be sufficient easily for a civil court.
I am not trying to be negative for the original poster, but if all he is told is “it is unreasonable, the insurance company cannot win a case like this without proof” etc then he will be reassured and not consider what the insurance company case may will be.
Depressed Dad
Established Member
That’s not ALL he is being told. The advice is to get a lawyer. The rest is us pontificating.
I’m suggesting ‘unfit through alcohol’ (a subjective measure) is less likely to stick than using readings from calibrated devices, even if one was taken 5 hours later.
The roadside test was 1.5 times. So not sure where twice the limit comes from. Maybe later at the station but unlikely at the time of the collision.
I don’t think there’s much doubt he was over the prescribed limit at the time of the accident. That’s all the insurer needs.
price1367
TTC Group
The roadside one in only an indication and is certainly not legal proof.
The driver was probably twice the limit on the basis of science, not pontification.
A reading of 79 in blood for a male is about 5 units of alcohol. For a fit healthy male of average size alcohol is eliminated at the rate of about one unit per hour, so 5 hours before the blood sample was taken when the accident occurred, it suggests that he had another 5 units of alcohol in his system so was twice the legal limit.
In a criminal case, this has to be closely scrutinised. In a civil case, if they decide that it is probably right, then they would be able to show that he was affected by alcohol.
a solicitor is a great idea, but the difficulty will be finding one that is good at defending civil cases, but is also well versed in drink driving procedure and what can be inferred from the police and other evidence from witnesses etc.
At least from watching this forum the poster will be able to ask relevant questions of his solicitor.
I think there have been pros and cons for both sides put well on here!
The driver was probably twice the limit on the basis of science, not pontification.
A reading of 79 in blood for a male is about 5 units of alcohol. For a fit healthy male of average size alcohol is eliminated at the rate of about one unit per hour, so 5 hours before the blood sample was taken when the accident occurred, it suggests that he had another 5 units of alcohol in his system so was twice the legal limit.
In a criminal case, this has to be closely scrutinised. In a civil case, if they decide that it is probably right, then they would be able to show that he was affected by alcohol.
a solicitor is a great idea, but the difficulty will be finding one that is good at defending civil cases, but is also well versed in drink driving procedure and what can be inferred from the police and other evidence from witnesses etc.
At least from watching this forum the poster will be able to ask relevant questions of his solicitor.
I think there have been pros and cons for both sides put well on here!
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