DVLA Coronavirus (COVID-19) update: DVLA are now processing paper applications, however these will take longer to process as the DVLA are working with reduced staff to meet social distancing requirements. If your application requires medical information or examinations there are likely to be delays also.
Click here for more information
.

Convicted Driver Insurance

Compare quotes from leading drink driver insurance specialists in the UK

Get Quotes

Hip Flask in the time of covid...

Bob2020

New member
Hello, I’m new to this site, facing the choice of plea ahead of a possible ‘post incident’, or ‘hip flask’ defence. I’m grateful to others who have posted on this topic and I have tried to read all the entries on the forum for this. I understand this is a difficult case to prove, especially without witnesses and that a BAC forensic report is essential. I’ve read a number of times that if I plead ‘not guilty’ then it comes down to the defendants ‘credibility’. So my question for the forum is really what parts of my circumstances I should emphasise in order to convince the magistrates, on the ‘balance of probabilities’ that I am telling the truth. Similarly, which parts appear to cast doubt on my version of events? Are there other things that would be helpful that I may have missed? The events in brief are:

In early March after drinking the night before (1/3 of a 70l bottle of 37.5 proof vodka finished at 11pm), I left my house at 7:40 to drive the 10 or so miles to my daughters house to care for her. She was off school because of the Covid restrictions and I was planning to work from her home, while looking after her. I felt very ill that morning (I suspected Covid) and became distressed because I knew that, if I turned up at my daughter’s home with symptoms, her mother would use this, understandably, as a reason to stop me seeing her and would likely move my daughter to another town, miles away, where her partner lives. I had a panic attack (I have a history of anxiety and depression which is documented and for which I receive medication). After driving a short while I turned the car around, pulled into a car park and texted my ex-partner that I was ill and would not be coming. This was around 7:50. My daughter is 15 and has Asperger’s so it is not possible to leave her alone during the day.

The ‘car park’ was opposite a path that leads to my home over a park, and unwisely I decided to drink a small bottle of lower strength vodka (37.5l of 37.5 proof) with the intention of leaving my car and walking home since I would not need the car again. The area is not a safe area and I was conscious the car park would be a safer place for the car and also conceal me from drinking, in case any neighbours or others saw me. Unfortunately the car park was in fact not a public car park, but a school car park and just happened to be empty at that time because of Covid. After I started drinking, I became vaguely aware that something was wrong as I noticed at least one person looking directly at me and the car. By that time I knew I couldn’t move the car because I had taken the alcohol. My distress increased as again I did not know what to do. I stopped drinking and dozed off, slumped across the passenger and drivers seats, but with the keys still in the ignition and engine off.

About 8:30 I was woken by a police-man. His statement shows that I was drunk and at about 8:45 he arrested me. Like most first time offenders on this site I was unaware of the law in this case. i.e. the law presumes the amount of alcohol in your blood at the time you are tested is the amount that would have been in your blood the last time you drove. A witness at the school says she saw me drive into the car park at 7:55. The witness, a teacher, says she also saw me driving (I must have passed her before turning round to park). She makes no comment in her statement about my driving.

I declined a breath test at the road side and other breath tests at the station for medical reasons which they accepted, and eventually gave a blood sample at 11:55. This showed 224 ug/l. I was interviewed twice, once for my version of what happened and once to complete a MGDD/D form which I believe allows the calculation of BAC levels over time given personal details. I was then released ‘under investigation’. I was breathalysed several times after the blood test as the police wanted a negative result before releasing me.

A long time passed during which time I had assumed that the MGDD/D supported my version of events and hence they decided not to proceed. However, I received a notice of prosecution in early September. After a false start I have a plea hearing in early October. As I believe I made a number of mistakes, under unusual and difficult circumstances, rather than committing a crime, my strong inclination is to plead not guilty. However, I understand the financial penalties of a not guilty plea are such that this is a tricky decision. From reading the advice posted by lawyers on this site, for which many thanks, I understand that, assuming I get a BAC forensic report which supports my version of events, does the case as outlined above seem credible? What aspects lend it credibility and hence should be emphasised, and which do not and would need to be contested.

I have the prosecution case file but do not have the interview recordings, nor the completed MGDD/D form nor the custody record. I have asked the prosecution/police for all of these. The case file does not mention any other evidence apart from body cam footage and a picture of an ‘open’ box of wine that was under the seat on the passenger side. The empty bottle of vodka was still in the back of the car when I picked it up, but has now been thrown away. They do not mention any CCTV evidence which might show me driving and my driving ability at the time. So my second question is, given I agree with the majority of the police case about timings, locations etc., can I be sure there isn’t other evidence which might either support or undermine my version of events.

Finally, I would add that like most people I am a man of very modest means and would like if possible to defend my self in this case as I believe no-one can articulate the facts, as I see them, better than me. I also believe that if the law is going to apply concepts like ‘Clapham omnibus man’ it should not be so complicated as to prevent such a man defending himself. I realise that no amount of common sense would give me the knowledge necessary to spot ‘procedural mistakes’ in the prosecutions case. Is there a way of getting legal advice on these without representation?
 

price1367

TTC Group
The ‘hip flask’ defence can by used for post driving drinking, but your problem is that you say you were drinking it IN the car. That means that you were still in charge fo the vehicle. It was NOT ‘post incident’.
Have you been summonsed to court for drink DRIVING or for being drunk IN CHARGE of a motor vehicle?
If it is drink driving, your best hope is to say you want to plead not guilty to drink driving but you will admit to being drunk in charge. In theory it is possible for the court to award 10 points rather than a disqualification but from what you outline I think you will be very lucky to get that.
You have asked how credible your explanation is...... I will be honest, you claim you pulled on to a car park just before 8am and drank half a bottle of vodka in a few minutes, before nodding off by 8.30am. If I was a magistrate I would not believe that, and I would not consider points rather than a ban because you also admit to drinking a third of a bottle of vodka the night before and you seem to have a drink problem that should be addressed, .....whilst off the road.
I note that you called it a ‘small bottle of lower strength’ it was a half bottle of vodka only 6% less than full strength. That represents just about the guideline amount of alcohol to drink in a week, in 15 minutes at 8am!
You can pay £300 or so for a technical report, and there are a lot of variables to take into account but from what you say, the mid point for your reading at 8am, allowing for it being correct that you drank the vodka, is 4.5 to 5 units of alcohol in your system when you were witnessed driving at 7.55am. It could be more, or could be less, according to the calculation of your body metabolism, when you last ate etc.The legal limit is 5 units.
If the technical report is not accepted by the prosecution (and in the circumstances you have outlined I suspect it may not be) you would have to call the expert to give evidence in person, and that is likely to cost £800. The prosecution could commission their own expert report for similar cost, and claim that from you as extra costs if you lose. The prosecution Basic costs for a guilty plea is £85, for a not guilty plea it is £640. (But only if you lose) Even if you win, you would not get the technical experts costs back. By pleading not guilty you lose the 1/3rd discount on a fine, and it is hard to persuade the magistrates to ‘be kind to me’ if they find you have not been truthful so mitigation does little to reduce the length of the ban you would face.

Having said all that, the decision is yours.
 

TPR

Active member
Having attempted to run this defence myself I can only really agree with Price. I had an expert witness that concurred with my Hip flask defence, a witness to my claims of post drive consumption and the police also confirmed that they had been with me whilst i drank alcohol after the fact. It made no difference and was still found guilty. It was also an extremely expensive process. If I were to have my time again, i would spend my energy either attempting to convince the CPS that i would plead guilty to an amount under 87.5 and reducing my. I think the burden of proof for a hip flask defence is mighty high. I think many people are blinded by the fact that they may have found a 'loophole' - when in reality it has an extremely low success rate.
 

JamesJ1983

Member
Iv just been through something similar however luckily I wasn't in the car when caught and I had proof I had been home for a small while before the police arrived allowing me time to consume alcohol,

The only bit of advise I want to really give is that I could not have done any of what my case involved alone you need to seek advise from a solicitor before considering this as a defence as if you plead innocent then you will loose the credit you gain from an early plea. Like you say they assume your guilty so without knowing the law its hard to defend your self without dropping your self init, I paid for the solicitor and the bacs test to try and get my case lowered to a bracket I was happy with as I was guilty so didnt want to fight that bit and the solicitor made that possible as the cps I assume didnt need the hassle and time involved for a trial so they agreed to lower the chargers which was the best outcome I could ask for, but without that solicitor I wouldnt have known where to start and what was right and wrong with the polices evidence and accounts of the events,

Good luck with everything and hope you get sorted, took me nearly a year thanks to corona so if you do decide to fight it don't expect a quick turn around at the moment
 
  • Like
Reactions: TPR

Bob2020

New member
Many thanks for the advice so far. Here is an update and a couple of further questions. I am talking to a couple of law firms and I can see you guys are right in terms of representation. I think I'm unlikely to be able to be able to win this case and will focus on getting the CPS to lower the charges. I've been quoted very different amounts so far. One firm said 2.5K for a plea bargain and 5K for trial representation. Another wanted 4K and estimated the final cost to be 12-15K. As such this site is really fantastic, without support its really hard to know how to get the best advice.

Update:

At my appearance two weeks ago I spoke to a duty solicitor and agreed she would ask for an adjournment. Since I was still awaiting information, in particular the MGDD/D form which I think should be used to estimate my BAC level when I was last driving (I..e the pre-post incident level). After a bit of a falter the Magistrates agreed and directed the CPS to send me the evidence, with a two week deadline. They set the date for the next hearing in December. The two weeks has passed and I haven't received anything but I'm hopeful. Generally I found the magistrates were very receptive to ensuring I got the evidence I thought I needed to make a plea and in setting future dates so I could consider it. As an aside, I recommend the book by the Secret Barrister for an insight into the CPS (they're underfunding etc.) and the role of a magistrate (skills, background, training). Its an eye opener and I think will explain why magistrates courts are the way they are.

In terms of questions...

I don't have any evidence about the post incident drinking. No till receipts, witnesses, text messages etc. All I have is the fact that there was alcohol in the car. I wanted to ask about whether evidence about mental states is admissible. I have a strong aversion to drink driving because of an incident in my childhood. I have spoken to psychiatrists about this in the past and told the police about it during interview. Is it worth getting expert testimony from a psychiatrist to about the likelihood of me drink driving given my experience as a child? I suspect not, but wanted to ask just in case and for the benefit of others in my situation.

Secondly, as I understand it there is no formal 'plea bargain' system in the UK, unlike America. So I wanted to ask how it gets done in practice? What's the best way to approach the CPS about such a thing. Is it necessary to have a toxicology report before approaching them? What have other people's experiences been? Under what conditions are they receptive to such an approach etc. Do some law firms specialize in this sort of approach? Are there any risks with the approach?

Finally I think it is important that their witness does not mention my driving quality in her statement. Given my condition when I was arrested, which should be clear from the bodycam footage, it should be clear that there must have been post driving consumption. One of the law firms I've been speaking to said this wasn't admissible - i.e. it cant be mentioned. Is that true?

Many thanks.
 

price1367

TTC Group
There is no formal ‘plea bargain” as you say, but what do you hope to gain if there could be some negotiation? It implies that you would be prepared to plead guilty but to what? In charge rather than driving ? Guilty but to a lower reading?
It would be helpful if you could help focus with what your goal is to help with advice to offer......
 

JamesJ1983

Member
Morning,

Im by no means a legally trained person but to give you an idea of some of the steps I had to go through might help you get to some of the answers you need,

Before actually deciding to appoint my solicitor to fully support me I contacted the local cps number which was the charge sheet given to me in custody I gave them my case number and requested a copy of the evidence they had, that was posted out to me about 3 days later by seeing they had gone a bacs test and the evidence given by a member of the public and cctv that was when I decided on the solicitor route,

At that point thats when we carried out the independent bacs test to give the solicitor a better understanding of how to fight the case,

My first appearance in caught when they asked me how I would plead I was advised to plead guilty but on the grounds the cps retired and reviewed our evidence as there was discrepancies

This was when the judge decided to adjourn and go for the newton hearing trail which would give both our experts and the witnesses as well as me chance to say our piece,

Luckily for me my solicitor kept emailing the cps and there experts until they reached an agreement on the amount I would have had in my system based on figures. I wouldnt call this a plea deal as even though it was in my favour it was going to be a take it or leave it moment, I took it however without his help I could have ended up going to trial and could have messed it up. My solicitor and the prosecutor knew each other im not saying that helped but he was definitely more likely to answer his calls than mine,

Then the day of the court the clerk read out the past statements so the magistrates knew how different it could have been and the they discussed the witness statements so I'm pretty sure they can still be used as you have plead guilty so in essence your saying there true,

As for mental health stuff if you can avoid saying all that I would if I was you as by stating how bad that past experience has put you off drink driving you still chose to drink it in the car and not get out and drink it sat outside the car as I'm pretty sure that would just lead to a very messy conversation if you end up in a newton hearing

Hope some of that helps
 

JamesJ1983

Member
Just an after thought if they have done a bacs test you will need your own to compare against that, if they haven't done one you can use yours as ammunition to prove some of what your saying, so if I was you I would order that now and just look at it as £300 well spent as mine took about 3 weeks to come back and you will need it to know your next steps, be honest on it though as they would work out everything based on what you tell them so you don't want your figures to look made up,

Convicted Driver Insurance

Compare quotes from leading drink driver insurance specialists in the UK

Get Quotes
 
Top