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how successful is hipflask defence with no witnesses?

#1
Hi all after bit of advice on the hop flask defence. Basically I was involved in a very minor rtc, the other party made me uncomfortable, I felt vulnerable, I'd given them my details, they also started filming me on their mobile and accusing me of smelling of alcohol, so they said they're calling police and I was told to wait, which I did for a bit but as I had my 9 year Son with me, nearly 9pm and I was in shock a bit as I had 2 kids with me at the time of the rtc, anyway I decided to leave and drove the short distance home.

Once home, to calm me down, I drank nearly 3 liters of 7.5% cider, ten minuets later police turned up, in my house, asked if I'd been drinking in last 30 mins which I said I had, so we waited 20/30- mins, then I was bretherlized and failed. The arresting officer said I was already slurring my words when he arrived and I was looking through him (I have had feedback at job interviews that I do this) At the station I blew 91 and 95 respectively in the space of a minuet or so, I was held overnight and interviewed around mid day with the duty solicitor. I went through my account, the arresting officer took the bottle that I had drank from as evidence, though didn't bag it up or anything. I was eventually released under investigation.

I'm not been investigated for any other offence as I had stopped and gave details, and insured.

Since my release, I now understand the law states you're deemed to be driving as per breath test and it's down to the individual to prove based on balance of probability (rather than reasonable doubt) that alcohol was consumed after driving. I expect the back calculation to be a bit short by six units, but one I did state the bottle wasn't quite full and two the reading was shown to be increasing and only one sample provided.

I have a couple questions:


  1. how does one prove based on the balance of probability ie more than 51% that alcohol was consumed after driving when no witnesses?
  2. I understand that the police allow a margin of error in back calculation of around 6 units, if the report broadly supports my version of events , what are the chances of cps proceeding to prosecute?
  3. Who judges the % of probability - is this before or during court? would the cps have to be satisfied, based on reasonable doubt that they'd secure a conviction? Or could cps bring charges and I'd have try and prove in court based on balance of probability that I drank after driving?
  4. My print out doesn't display the time the breath sample was taken, would this amount to a technical defence?
  5. whilst I was asked some questions about what I had eaten/drank ect at interview no forms were completed with me and I didn't have to sign anything, again, would this also amount to a technical defence?
  6. if prosecuted what are my chances of being acquitted based on my account?
  7. If I self funded for solicitor/barrister (I won't qualify for legal aid) and was acquitted is their a central fund/would losing party have pay for my defence costs?
  8. If the mobile video footage wasn't favorable is it admissible as evidence? Likewise if favorable would they have to disclose it?
  9. would the arresting office be used as a witness against me and his body camera footage? Likewise in interview they did say the arresting officer recalls seeing my vehicle around the area and no comment given about my driving standards, would they have to disclose this in cross examination at magistrates court?

Thanks
 
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AlanT73

Active member
#2
Hi. There are plenty of people on here who will be able to answer the questions of a more legal and technical nature but at first sight I think your main issue is going to be backing up the pure logistics of the hipflask defence (regardless of any independent witnesses).

1. I appreciate that you had your young son with you but if the 3rd party claimed maliciously that you smelt of alcohol and was calling the police, the obvious thing to do would be to wait and prove your innocence because clearly, the police would come to your home and breathalyse you there if you left the scene.

2. I think it would be very difficult to convince anyone that you managed to drink 5 pints of 7.5% cider within the space of 10 minutes. A few swigs of spirits maybe but 5 pints in such a short space of time is highly implausible.

3. Knowing that the police are going to be coming to your door because they believe you may be a drink driver, why would it seem in any way sensible to drink ANY alcohol let alone a claim of 5 pints of strong cider?

As for the readings I think the claim that the level is increasing is erroneous. The ACTUAL levels couldn't rise by 4 in the space of the few seconds between readings. The Home Office approved machines still have a margin of error and unless the 2 readings were wildly different they would be seen as within the margin of error and the lowest reading is always taken to give someone the benefit of the doubt.

I don't believe there is any central fund to reimburse someone's legal fees who is acquitted on a technicality. They would probably just be grateful that they kept their licence.

If indeed you are innocent of drink driving then I absolutely hope that you manage to prove that this is the case but on balance I think proving your hip flask defence as you have stated it is going to be difficult.
 
#3
Thanks AlanT, yes I am innocent and wasn't drink driving. As said as in shock at the time I wasn't really thinking straight. As no injuries and I had stopped and gave details, there was no legal requirement to stay and for all I knew, the guy could be on phone to his mates who could come down and do me in.

I have had issues with binge drinking and have done this, I have spoken to Drs re this prior to this incident and I have used alcohol to relieve stress in the evenings and not when I'm likely to be driving the morning after either, as I need to drive for work. I've nt had any alcohol since the incident and am now taking anti depressants, which seems to be helping a bit.

As I have never been in trouble with the police before, no I wasn't aware they'd come to my house or that the law states if breatherlised it's presumed to be at that level whilst you were driving, unless you can show otherwise.

The police said they're doing back calculations and this will hopefully fall in line with the expected reading of someone having consumed 3l/5 pints at 7.5%. Prior to the incident I had been shopping in Tesco and have the till receipt to back this up.

Given the fact the police did turn up so quickly, I wouldn't have had time to make anything up,also the police said they did see my vehicle but no statement given about the manor of my driving, as I would have been driving normally, there's no way I'd be able to drive normally if I was nearly 3x over. Again I'm not sure if or who judges whether this is 51% more plausible, rather than beyond reasonable doubt, but it is the fact.

In terms of the reading I take the point it may be impossible to raise by 4 in such a short space of time, the point I was trying to make, if it is short, that it was still being absorbed and if another reading had been given at some point later, then it would of been higher. Likewise in my case, from my calculations, I would of expected the reading to be a bit higher and therefore 94 would be more favorable than using the 91 but I understand if charged then it would be based on the lower reading of 91.
 
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AlanT73

Active member
#4
Hi. OK, I can understand why you would want to leave in that case having fulfilled your obligation to exchange details.

I still think it will be difficult to convince the court (if it goes that far) that you managed to consume 5 pints of strong cider in 10 minutes. That is one hell of a rate of drinking that any rugby player would be proud of! It may be proposed that it wouldn't take this volume of alcohol to 'calm down' and make your claim look a bit suspect.

In your first post you clearly state that the reading was shown to be rising but in your second post you say that a later reading would have given a higher value so I'm a bit confused by that. It's small details and inconsistency in the story that the prosecution will be looking to reveal...........

Hopefully you will get some good advice from other members on the technical aspects of your situation.

Good luck and keep us posted on how things progress.
 
#5
AlanT73 has summarised your difficulties very well.
The defence is called “hip flask” and it could be understandible for a person, in shock, to have a swig or two from one.
5 pints of strong cider is hardly a swig ..... or 10!
You will have to persuade the court, on the balance of probability, that you consumed that large amount in 10 minutes (I think you said 8 minutes in the solicitors post about this) to calm down. You would also have to persuade the court that you felt that this was preferable to calming down your son who was in the car and presumably upset as well.
You asked about the video of you at the scene. Yes, this could be given in evidence, and you, on request, would be supplied with a copy of it. Presumably the witnesses will also say that you smelt of intoxicants. Now this doesn’t rule out that you drank alcohol after you got home, but your claim is that you hadn’t drunk anything before you drove, and their evidence may well discredit this. It you are discredited, it makes it even harder for you to persuade the court that your claim to have drunk a large amount of strong cider, ONLY after you got home, is true.
You will not simply get the police technical expert doing a back calculation and the Police dropping the case. It is a defence that YOU put forward, and you will have to get a technical expert to produce a report for you. This costs in the region of £300,rising to £800 if they have to give evidence in court.
If you were to have a trial, and be found not guilty, then the best you could hope for is for your solicitors fees to be granted, but at the Legal Aid rate which is about £95 per hour. You can expect a decent solicitor to cost you £300 per hour. If you do consult a solicitor, make sure it is one with a large amount of experience in Drink Drive cases, which many do not have. They will be optimistic, but there again they are playing with your driving licence and your money.... a solicitor never loses personally.
 
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#6
Personally I think your hipflask defence is ridiculous.. and without witnesses, you've got no hope with that.

If you want to challenge it then I'd suggest instructing a firm that specialises in motoring offences. It's very expensive.. but then again - a drink driving conviction costs 50 grand in the longterm? If you are acquitted then you'll only get a fraction of your costs back.

There are strict procedures that the police need to follow when taking evidential samples (in your case the breath test). If these procedures aren't carried out correctly, or shortcuts are taken, or maybe the machine isn't calibrated correctly etc, then the evidence is deemed inadmissible and there's a good chance of an acquittal. There was a case recently of a guy charged with failing to provide a sample. It was deemed he was physically incapable of blowing into the machine... because he was too drunk :confused: There are all sorts of technical defences that a specialist would look into.

That hipflask defence is a non-starter. Not enough time, too much alcohol consumed, no witnesses, a very strange time/reason for drinking etc

This is just my opinion, but I suspect a magistrate will have a similar one.. but their opinion matters!
 
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#7
Thanks all some valid points just want to clarify a few points;

The police said in interview they'd arrived 8 minuets after the call, I said it felt longer than this they were stood on the doorstep for some time and my in-law was actually first to speak to me shortly followed by the police. I'd be interested to see the actual timeline and could be more like 15 minuets.

Coincidentally, I am an ex rugby player (second row) as I have said, when I do get the opportunity, on a bad day, I do binge drink and once I start I can't stop myself. Both before and after the incident I have been to doctors and said it's what I do drink when I drink. On the day in question I hadn't eaten anything or drank very little and as I have built up some tolerance I therefore need to drink more to feel similar effect.

In terms of the reading two breath samples were given in a very short space of time a minuet or so, first at 91 and second at 94, when I've done back calculations for the volume and % drank, it seems a little short, now I did state the bottle wasn't quite full and my other argument is, if a further reading had been taken once more time had past and therefore more alcohol absorbed then the breath reading would be more inline with expected results, or doesn't it work like that?

I ensured my Son was well both at the roadside and at home and thought best just get him settled by doing what he'd normal does when back home and put the tv on made sure he was ok then went to kitchen and drank.

There was no other reason for me to have drank especially knowing I was picking the kids up and had been shopping in supermarket prior to collecting.

The police said they saw me driving no statement made about how I was driving again could I suggest I was driving normally and therefore strengthens my case? Likewise if the video isn't edited/cut then I believe they would have filmed me driving away which again would show me driving normally. I suspect the officer won't recall and the video be edited to show what they want it to.

My understanding from the back calculation procedure from the duty solicitor is they only do them for the most serious drink drive offences and not as a matter of routine but I guess they have a duty to gather evidence both for and against me.
Also the officer at interviewed suggested it did hinge on the back calculation and if supports my account there be no case to answer, if ooh it's way out this discredits my argument and be likely to be charged.

Finally at interview wtp alleged I had no lights on, yet when I spoke to them they commented that my lights look dim, again their word against mine.

I was quoted something like £2500 for a premium guilty plea package and £5k for a not guilty plea and defence. I need to look at my motor insurance see if covers defence costs. As yet to be charged can I take out before the event insurance or even after the event?
 
#8
Could your InLaw be a witness to you drinking after you got back? You say that he/ she was in the house when the police arrived.
i think that you will find that legal protection cover excludes cases where you are under the influence of alcohol and you will not get retrospective cover, otherwise no one would bother with cover until after they needed it.
the £5000 for a not guilty seems OK, providing they have experience in cases like this, but the £2500 for a “premium quality guilty plea” seems steep, it should be no more than £1000. For a simple guilty plea, people on my courses often report paying £300-£500. A premium quality guilty plea will still see you banned for quite a while so what are you getting that it “premium”?
 
#9
My father in law greeted the police on the door step, then he came in whilst the police waited outside, and no he didn't see me drink, he then took my Son to his house, out the way prior to the police entering who then came in to the kitchen, where I was still stood like a rabbit in head lights...

The standard guilty please is about £1500 inc vat I believe the difference being with the premium you get a barrister representation along with more time to help prepare.

The motor legal policy is an before the event policy and is therefore cheaper (as chances are you won't need it) than an after the event, where you know you need legal representation and is therefore more expensive than an BTE policy. I really should look at this and whether I can get an bte as I haven't been charged yet and may not do...
 
#10
You have had 3 people comment on your alleged circumstances, and we are all sceptical that this would hold up in court so perhaps this is telling you something......
with a reading of 91, you would be looking at a ban of 23-28 months, so you are looking at your fee for mitigation possibly saving you 5 months ban at best - assuming you would have got the worst if unrepresented and the best with representation. I can’t see that this is worth £2500, or even £1500. Contrast this with simply asking for a drink drive course yourself at court, which will reduce your ban by up to 25% for a fee of £175.
at the end of the day it will be a value decision for you to make. See if you are charged, If you want to pursue pleading not guilty then it will cost you more that the £5000, with specialist report costs being on top of the solicitors fee. You would only get a small amount of that back in costs, and you can hardly submit mitigation to reduce the sentence when you have denied that you committed the offence. With there being an accident and the not guilty plea, you would very likely get the top end of the 28 months.
There could be merit in using a solicitor for a guilty plea but with a “Newton Hearing.” This is where you admit that you were drink driving but dispute some of the facts. The dispute being that you drank some alcohol after you drove, but you cannot show that this made the difference to you being over the limit. If this was accepted, your solicitor could then invite the court to sentence you in the next bracket down, which is 17-22 months. It simply means that the magistrates have to accept that you consumed SOME alcohol after you got home, raising your reading, which is plausible, rather than you basing your whole defence on you drinking 3 litres of strong cider in 10 minutes, which isn’t.
That could be worth spending money on, but £2500 to put forward mitigation for a straight guilty plea does not make sense as the return that you could get from having a barrister does not justify it.
 
#11
You have had 3 people comment on your alleged circumstances, and we are all skeptical that this would hold up in court so perhaps this is telling you something...... Whilst obviously not good, agreed and take the view points on board.

Obviously if summons does arrive I will seek legal advice in the first instance prior to entering a plea at court.

I agree £1500 for a "guilty" plea wouldn't necessarily be worth it, as there is no way around a ban in this case, however I am concerned if “Newton Hearing.”(not heard of this term prior so thank-you!) wasn't accepted not only 23-28 month ban,which also means loss of employment but also community service (which in the circumstance I'd prefer opposed to a fine) would be a concern. Likewise if not guilty plea entered and subsequently convicted with aggravating features not only car accident but kids in my car would this push it into the custodial consideration bracket?

I believe the £5k includes specialists reports etc but would need to clarify if I went this route.

Can one not plead not guilty and if convicted then plea mitigation? eg first defend and if that fails, then mitigate on a newton hearing basis as well as other mitigation eg loss of job which is also a financial punishment to the family and not me individually etc.kids to taxi round, first offence etc and ask for the course too?

Could I look to defend myself, or do I need a licence to practice, not that I'd be any good but think if adjourned for trail, chances of police and witnesses turning up ect coupled with hip flak defence and technicality questions such as the time not appearing on my copy , the MDAM?? form not filled out and signed for by me ect. edge my bets or if representing myself am I best pleading guilty? I guess there's 11 month difference between the lowest of the second bracket and 28 on the top of third bracket.
 
#12
Simple bit first, you can defend yourself, you do not have to be ‘licenced’. But that should only be for a guilty plea. It is not a practical option to run a not guilty without a lit of knowledge of the law around drink driving in general, and ‘hip flask’ Defences in particular.
you can plead not guilty and then, if found guilty, submit mitigation as to the circumstances. There is no bar on this, but you have to think of the practicalities. The magistrates are human, they hear another human say they didn’t drink drive. They hear the other human take an oath and swear that they drank 3 litres of strong cider in 10 minutes. They find him guilty, in other words they feel that they have been lied to. Then the solicitor asks the magistrates to think kind thoughts about the other human because..... hardship, job loss? , maybe..... remorse? NO, timely guilty plea? NO..... so it can be done, but the effect is greatly diminished and they are certainly not going to go down a sentencing bracket where there has been an accident, kids in the car and no admission.
solicitors fees usually do not include any experts reports, and usually have VAT added to them at the end so beware of ‘fee creep’. If you feel you have a good case, it is worth spending money on a quality defence if the solicitor has a proven track record - ask for proof!
On the subject of a Community Sentence, the court now considers a community order in the 17-22 month bracket as well, although it is les likely. The rules were revised a year ago or so.
You are right to wait to see if you get a summons, no point in spending money now just in case it does not proceed. If you do get a summons then you can ask for disclosure of the prosecution case before the hearing. This should be served 7 days ahead but in reality is not sometimes not done until the day of the first hearing. You should ask for advance disclosure to include any video evidence that the prosecution will rely on. In court you can ask if you can enter no plea at this hearing, because you have only just received the evidence, or a formal not guilty plea whilst you review the evidence, when you could change your plea before the next hearing if necessary.
You can do all this yourself, without a solicitor. Then look at the video evidence that the witness apparently recorded. Better still, get a friend - a good honest friend - to look at it and tell you how it makes you look and sound. Not just someone who will give you loads of sympathy and not an honest opinion. Then you decide what to do.
Look, I don’t know what happened, not do the other 2 people who have commented. Neither does your solicitor, he / she will just act on your instructions. People do drink after an accident and sometimes it is not the truth that comes out, it is which version of events is more credible.
I am just trying to put things into perspective for you as to how things can go, and a large part of that is down to you. There is what you said on the night, but then there is what is admitted or not in court that really counts because that is what the magistrates see for themselves.

i have read through the notes on this again and do think that the guilty, but with a Newton Hearing on the level of alcohol to take it down a bracket does sound attractive, particularly if there is a video that indicates that you were impaired to a degree at the scene. On the other hand, you can say “well I know I had not drunk before I drove, my story might not be credible but I will spend whatever is necessary to put in a quality defence for my own peace of mind, and if I lose well at least I was true to what really happened....”
 
#13
Thanks Price, all makes sense.
If summons does come through, I just hope I can get the disclosure prior to the court date, as I think it be even harder to enter no plea than plead not guilty - as if not guilty then what have I got to worry about and why do I need to see the case against me before submitting a plea? My only concern with the video, is whether it's been edited/cut and as I was in shock and shaking, what this could be perceived as.

If I go the Newton hearing way, again this then opens up to some extent a can of worms, in terms what I say what I had drank, where and why prior to driving and then consumed some more. Also if the BAC calculation supports my initial claim, but then I say I had consumed some prior it would then discredit the bac calculation evidence wouldn't it?....

In both events if the court feels they've been mislead would I then not face a charge of perverting justice and could be liable to life in prison?
 
#14
There's no chance of you being charged with perverting the course of justice. Infact, even if you plead not guilty, then there's a good chance you won't even have to give evidence in court.

Personally I don't think you would be overly punished for being found guilty, rather than pleading guilty. You clearly did drink 'some' alcohol after driving.. so even if no defences are found, maybe there would be room for a plea bargain with the CPS? I've seen some cases where an agreement has been reached where the defendant pleads guilty to driving with 40/ug alcohol (the lowest amount required for prosecution) and then obviously they get the minimum 12 month ban/small fine.

I would definitely suggest instructing an specialist. By turning up on your own and pleading guilty, there's a lot to lose.. and there could be a lot to gain by actually seeing the evidence against you. There may be very little. It's not unusual for the CPS to bring these 'routine' cases to court with very little substance - because the overwhelming majority of people plead guilty straight away and then that's that. If they are challenged then quite frequently you'll find paperwork haven't been filled out, procedures have been done wrong, discrepancies in witness statements etc etc
 
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#15
I agree that you would not be charged with perverting the course of justice, but if you were to plead not guilty on the basis that you drank alcohol after driving, and it put you over the limit, you WOULD have to give evidence about that. The technical defence form would indicate if the claim is credible that the amount drunk would make the difference, but you would HAVE to give the evidence that you did in fact consume the alcohol alleged. This would leave you open to cross examination about the circumstances that I outlined earlier as to how believable your claim is.
it is the norm that a person does not have to give evidence in their own defence, but in the case of the “hip flask defence” the law presumes that what was in your system when you were breath tested WAS what was in your system when you drove. You therefore need to give evidence about your drinking, so that the technical defence form can then be submitted to support what you claim. Without the evidence of drinking, the technical defence form has no standing.
 
#16
Thanks both.

If only I had known that the law presumes you drove with what you have in your system at the time. I would of acted differently.

I was also a bit confused about the bac calculation anyway as I was told A) the decision to prosecute "rides" on what the lab results say and B) The police only do BACs calculation in extreme circumstance, so for them to do it for me in the circumstance to collaborate my version seems odd but I now understand they have to investigate ALL evidence for both for and against me.

MY enhance DBS still hasn't come back yet either so now concerned whether this is being held up due to the on going investigation.

I appreciate still early doors, but I have not received anything further yet.
 
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