Arrested for drink driving 40mg roadside and at police station, car had broken down.

[Gonzo71]

Hi,

My partner had had 2 small glasses of wine and was driving home when the car broke down on a dual carriageway. She called the recovery company and the police, put her hazard lights on.

The police arrived first and helped move the car out of the lane onto the side and asked her to sit in the police car while waiting for the recovery team. The Officer thought he could smell alcohol and asked her to provide a breath analysis which gave a reading of 40mg at about 5pm.

She was taken to the station for a second reading which showed 43mg and 40mg at 6pm. She is due in court in 3 weeks.

Given that she had driven the car but it was broken down when the police arrived and that the breathalyser and station tests gave the same reading an hour apart is there room for error? Also can she be charged with driving when she wasn’t driving? (Obviously she had driven to the point of breakdown but wasn’t stoped by the police)

I’m aware that readings of 39mg are discounted by the police and the fact that she wasn’t stopped by them and due to the vehicle being broken down couldn’t be driven it seems that a 12 month ban and fine (or 9 month ban with drink driving course) and fine seem to be disproportionate. She called the police regarding the break down as a responsible action, didn’t feel intoxicated and wouldn’t have done so, or driven if she did feel intoxicated.

Any advice greatfully received.

 

[SeanJoyceStephensons]

Drink driving is a strict liability offence and the circumstances under which your partner was breathalysed and subsequently charged are not material to the charge itself. The law presumes that the level of alcohol in breath at the time of the evidential test is taken to be the level at the time of driving. If you partner admitted to driving to the scene then that is sufficient for the charge to be made out.

In respect of the breathalyser results, it is not unusual for the roadside result to be the same or similar to the result obtained at the station, even where a significant amount of time has passed. This can be as a result of various factors. However, ultimately the police can only rely on the breathalyser result obtained at the station because this is the most accurate result.

The fact that your partner contacted the police herself could be used in mitigation but the fact that your partner did not feel intoxicated is again immaterial to the charge given that the offence is one of strict liability.

There are a number of factors which can be advanced in mitigation in attempt to persuade the Magistrates to impose the lowest sentence possible but unfortunately none of the factors you have referred to are material to the charge itself and will not amount to a defence.

Please contact our team should you wish to discuss options for representation, on 0333 009 5541.

 

[Gonzo71]

Drink driving is a strict liability offence and the circumstances under which your partner was breathalysed and subsequently charged are not material to the charge itself. The law presumes that the level of alcohol in breath at the time of the evidential test is taken to be the level at the time of driving. If you partner admitted to driving to the scene then that is sufficient for the charge to be made out.

In respect of the breathalyser results, it is not unusual for the roadside result to be the same or similar to the result obtained at the station, even where a significant amount of time has passed. This can be as a result of various factors. However, ultimately the police can only rely on the breathalyser result obtained at the station because this is the most accurate result.

The fact that your partner contacted the police herself could be used in mitigation but the fact that your partner did not feel intoxicated is again immaterial to the charge given that the offence is one of strict liability.

There are a number of factors which can be advanced in mitigation in attempt to persuade the Magistrates to impose the lowest sentence possible but unfortunately none of the factors you have referred to are material to the charge itself and will not amount to a defence.

Please contact our team should you wish to discuss options for representation, on 0333 009 5541.

Many thanks for taking the time to answer this post and I appreciate your frankness and honesty.