On Bail

[price1367]

Bonnie001
This article by a solicitor sets out what I have been trying to say to you, in a logical sequence, have a read to see if it is clear to you. You will see that he says (rightly) that the 'hip flask defence' as post incident drinking has commonly been referred to, is a case for a solicitor and is commonly advanced, but seldomly successful. He is talking about cases in Scotland, but in this defence the argument is equally valid for the English court....
http://www.pressbox.co.uk/detailed/Legal/The_Hip_Flask_Defence_-Post_Incident_Drinking_266399.html

He does not go into, though, the need for some evidence that the post incident drinking DID take place. That would still have to be tested in court, so the case would be unlikely to be discontinued without a trial.

 

[Twotonted]

If the post had been read, he would see that Bonnie001 says that he did drink just over half a bottle of wine after getting home, but he is still in the mire. Why?
Because, since 1988, when the Police find you, post incident, they can breath test you, up to many hours later. The below legislation, in plain English terms says: "When the police require you to provide a breath test when you are, or have been the driver of a motor vehicle on a road or public place, the amount of alcohol in your body then is presumed to be what was in your body when you are driving. If your DEFENCE is; "I have been drinking since I drove" then it is for YOU to satisfy the court that you have been drinking since, AND that the amount you drank made the difference to you being over the legal limit. Without witnesses, that is difficult to prove, and would need a technical expert to give evidence on your behalf (Circa £800 cost) plus, if you lose, the cost of the technical expert called by the prosecution to rebut the defence you put forward.
On a personal note, I feel that this legislation is draconian and can leave people in a very difficult position. That is why I have used my expertise in the past to advise Solicitors on the merits of their "technical defence" in these circumstances, prior to them spending clients money on an expert for court.

This is what the law says in legal language:
Use of specimens in proceedings for an offence under section 4 or 5 of the Road Traffic Act.

(1)​

This section and section 16 of this Act apply in respect of proceedings for an offence under [F1section 3A, 4 or 5 of the Road Traffic Act 1988 (driving offences connected with drink or drugs)]; and expressions used in this section and section 16 of this Act have the same meaning as in [F2sections 3A to 10] of that Act.

(2)​

Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by [F3or taken from]the accused shall, in all cases [F4(including cases where the specimen was not provided [F5or taken]in connection with the alleged offence)], be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.

[F6(3)​

That assumption shall not be made if the accused proves—

(a)​

that he consumed alcohol before he provided the specimen [F7or had it taken from him] and—

(i)​

in relation to an offence under section 3A, after the time of the alleged offence, and

(ii)​

otherwise, after he had ceased to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and

(b)​

that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, would not have been such as to impair his ability to drive properly.]

http://www.legislation.gov.uk/ukpga/1988/53/section/15

As to the "Citation needed" , All the police have to show, as above, is that you are, or have been, the driver of a motor vehicle on a road and, if they suspect alcohol in your body (not even that after an accident) they can require you to provide a breath test. If you refuse, then you lose your possible defence that you have been drinking because the failing to supply offence is complete. It is immaterial if you have been drinking afterwards because you are not being charged with being "over the limit", but with "refusing a breath test."

This is what the law says in legal language:





Power to administer preliminary tests

(1)​

If any of subsections (2) to (5) applies a constable may require a person to co-operate with any one or more preliminary tests administered to the person by that constable or another constable.

(2)​

This subsection applies if a constable reasonably suspects that the person—

(a)​

is driving, is attempting to drive or is in charge of a motor vehicle on a road or other public place, and

(b)​

has alcohol or a drug in his body or is under the influence of a drug.

(3)​

This subsection applies if a constable reasonably suspects that the person—

(a)​

has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having alcohol or a drug in his body or while unfit to drive because of a drug, and

(b)​

still has alcohol or a drug in his body or is still under the influence of a drug.

(4)​

This subsection applies if a constable reasonably suspects that the person—

(a)​

is or has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place, and

(b)​

has committed a traffic offence while the vehicle was in motion.

(5)​

This subsection applies if—

(a)​

an accident occurs owing to the presence of a motor vehicle on a road or other public place, and

(b)​

a constable reasonably believes that the person was driving, attempting to drive or in charge of the vehicle at the time of the accident.

(6)​

A person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test in pursuance of a requirement imposedunder this section.

I have been quietly following this thread with interest.
Am I correct in assuming that a person who never drinks and drives could be prosecuted for drink driving?
If someone had a grudge against you and reported you for drink driving even though you haven't been drinking,
you then drive home, drink some wine and a Police officer calls at your house and you fail the breath test.
The Police will assume that you had been drinking and driving based upon the evidence of the person who
reported you despite that person not having any proof.
If my interpretation is correct then it's similar to being convicted of murder when the person who has allegedly been
murdered is still alive.

 

[price1367]

Twotonted,
i can see where you are coming from.
The whole basis of British law is the "you are innocent until proven guilty."
However, when it comes to drink dive law, you can be guilty unless you prove your innocence. The law presumes that what is in your system when you are breath tested IS what was in your system when you drove the car. If you do not satisfy the court that this is wrong, then you are guilty. The reason for this change in the law is the number of people who rushed home to have just one drink and they got away with it, even if they were drunk when they drove.
As to your analogy with murder, that is not quite right.
It used to be the case that you could not be convicted of murder without a body. The law was then changed to say that you could be convicted of murder if the court was satisfied that the person, beyond reasonable doubt, was dead, and that you were responsible for the death. So you could be convicted of murder without a death, if that test was passed. If the alleged victim then turned up alive, the conviction would be overturned.

 

[true]

i was arrested at home after a tip off, I had been out for a works do and admited drinking 1 pint lager 1 bottle of lager and 1 glass of wine over 4 hour period i had been at home for 1 hour when police arrived i blew 56 at home and 50 at station where blood was then taken, i had 2 x 275 ml glasses of wine at home prior to police visit, the officer took the glass and empty bottle. i have been bailed for 6 weeks. i was told they would back calculate and assess blood. no previous convictions. Please advise my chances.

This may sound daft, but to come and arrest you an hour later, do the police actually have any evidence that you had been driving the vehicle? Seems a bit wishy washy to me, if they caught you behind the wheel fair enough. The only thing I would suggest is to not cooperate at all as it seems you have generously given them all the evidence they need.

All they have from what I can tell is hard evidence that you blew over the DD limit when the officer attended the scene, that doesn't make you a drink driver. Anyone could have been in your vehicle!

 

[price1367]

True,
what the police have to have is a reasonable belief that you were the driver. This would have come from the person who reported Bonnie001.
the problem with not giving a sample in these circumstances is that the offence of failing to supply is complete. For that offence, they have to reasonably believe that you had been driving a motor vehicle, and you failed to provide a sample. Bo elements are there.
if you do provide a sample, you then have the defence open to you that you have been drinking at home, or that you were not driving. In theory, even if you proved you were not driving, you could be convicted of failing to provide, so long as the police passed the 'reasonably believed to be the driver' test.
I know this seems strange, I thing it is strange, but I give advice within what the law is, not what I think it SHOULD be!

 

[ukboxer]

I know this seems strange, I think it is strange, but I give advice within what the law is, not what I think it SHOULD be!

This is a great statement to make and applies to many threads here.

Personally I think someone who is accused of drink driving and there is reasonable doubt (such as in this case) it is unfair that the onus is on the accused to prove innocence where that proof may be very hard to prove.

However, whether we agree with the law or not, the law is what it is and advice given must comply with that law.

There will be people who are found guilty that are innocent. Unfortunately our law system is not perfect but there is little point in ranting on here about injustice (not necessarily directed at this thread).

As ive said before, our drink driving laws have significantly reduced deaths and injuries on the roads.

 

[BONNIE001]

I have just noticed on my charge sheet 2 possible errors, if any light could be shed on this please :-

1) i am accussed of driving my vehicle on 21/12/13 according to the charge sheet,
i was actually driving on 20/12/14 and was at home before midnight, police did not conduct
first hand held breath test until 01.15 am on 21/12/13.

2) because they did not know the route i took home ( hauled out of bed) on the charge sheet it
gives my home address which is not a public highway but the car is parked on private land.


are these legitimate accusations or incorrect statements on my charge sheet?

 

[ukboxer]

I have just noticed on my charge sheet 2 possible errors, if any light could be shed on this please :-

1) i am accussed of driving my vehicle on 21/12/13 according to the charge sheet,
i was actually driving on 20/12/14 and was at home before midnight, police did not conduct
first hand held breath test until 01.15 am on 21/12/13.

2) because they did not know the route i took home ( hauled out of bed) on the charge sheet it
gives my home address which is not a public highway but the car is parked on private land.


are these legitimate accusations or incorrect statements on my charge sheet?

1. I should imagine this would be corrected in court if necessary.

2. As you were arrested at your address I dont see a problem with that.

You could always post on the Solicitors section for a professional opinion however, I think you are clutching at straws to be honest.

 

[price1367]

Errors such as a wrong date (easily done, you have put the wrong date in your question....!) or even an incorrect location, are not grounds to be found not guilty. The court would be entitled to find you guilty of the substantial facts, ie that you drove a motor vehicle,on a road whilst over the legal limit.
i once gave evidence in a case where a man was found asleep in a car on an industrial estate. He admitted driving it there that morning and was the limit. His solicitor said that it could not be proved which road he drove on, we had charged him with driving on xxx lane, the solicitor said that there was also yyy road that he could have driven on. The court legal advisor said that the magistrates were entitled to find his client guilty of the material fact that he drove on a road whilst over the legal limit, despite it not being the road named in the charge. Much bluster from the solicitor, case adjourned for a few minutes for advice to be sought, contrite solicitor then agreeing that the legal advisor was correct....

 

[BONNIE001]

Hi Price, regarding all our previous correspondence and your latest new thread regarding the law change, am I correct in saying it would
be an absolute no - brainer to plead guilty ( even though I feel I am not ) as a not guilty plea would buy me time to be applicable under the new law change?

In the mean time fyi a report has been ordered for back calculation purposes costing £ 220 plus vat.

 

[price1367]

This change to the Rehabilitation of Offenders Act will be retrospective, so there is no advantage in your conviction being before of after 10th March. This means it applies to any conviction before, or after, that date. The conviction will be spent in the same time frame.
the £220 plus VAT is pretty reasonable. (Relatively speaking!)

 

[BONNIE001]

As always, thank you.

This is what the law says in legal language:
Use of specimens in proceedings for an offence under section 4 or 5 of the Road Traffic Act.

(1)​

This section and section 16 of this Act apply in respect of proceedings for an offence under [F1section 3A, 4 or 5 of the Road Traffic Act 1988 (driving offences connected with drink or drugs)]; and expressions used in this section and section 16 of this Act have the same meaning as in [F2sections 3A to 10] of that Act.

(2)​

Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by [F3or taken from]the accused shall, in all cases [F4(including cases where the specimen was not provided [F5or taken]in connection with the alleged offence)], be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.

[F6(3)​

That assumption shall not be made if the accused proves—

(a)​

that he consumed alcohol before he provided the specimen [F7or had it taken from him] and—



you quoted the above and I was just seeking clarification, the wording states F7 " or had it taken from him" which you recall it was.

does that not mean the section that states I have proved i.e. the accused proves innocence merely by the removal of the evidence?



I am not challenging or splitting hairs I am purely a layman trying to break down the information so it makes sense.

​

 

[price1367]

Bonnie001,
the part that you queried:
(a)that he consumed alcohol before he provided the specimen [F7or had it taken from him] and—
simply means the specimen that you provided (meaning a breath test) or had it taken from you (meaning a blood sample which taken rather than provided)




you chopped off the end of the quote on what the law says, because after "and" , it goes on to say:

(a)that he consumed alcohol before he provided the specimen [F7or had it taken from him] and—(i)in relation to an offence under section 3A, after the time of the alleged offence, and
(ii)otherwise, after he had ceased to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and
(b)that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, would not have been such as to impair his ability to drive properly.]



So you do not just have to show that you consumed alcohol, you also have to satisfy the court that it made the difference to you being over the legal limit or not. That is why you really need more that the experts report, because the best that the report can say is: IF Mr 'X' is telling the truth about drinking 'y' amount of alcohol at home after getting home, then that amount put him over the legal limit. It might, conversely, say that you would have been over the legal limit anyway, or that what is claimed to have been drunk at home is 'inconsistent with the readings that were produced' in other words, the account cannot be true.
Time will tell..... When do you expect the report to be completed by?

 

[BONNIE001]

I have not been given an exact date other than approximately 2 weeks, however my initial court date is next Tuesday, therfore if not
received by then i will have no option but to plead not guilty, then change the plea at a later date if the report does not endorse my
position.

 

[price1367]

If you explain to the court that you are awaiting the result of the experts report, yes, they will grant an ajournment.

 

[BONNIE001]

To clarify, does that mean i will still have to make a plea or will it be ajourned anyway?

If so how long does the ajournment usually last?

thanks.

 

[price1367]

I would ask for an adjournment as you are unable to enter a plea until the result of the experts report is received, and give them the timeframe. If they say they want a plea regardless, you would have to say Not Guilty. I would expect them to adjourn it for 4 to 6 weeks.

 

[BONNIE001]

Been to court and pleaded not guilty now awaiting report and return to court. I was served advanced information pack and dismayed, no one saw me either drinking or driving just a chap smelt alcohol on me and thought i might drive! (only statement other than mine and police)

question is - it states when the police officer came round and got me out of bed i rinsed my mouth out with mouthwash before going down which he
acknowledged and waited 5 minutes for breath test which it states in statement, however I have just read on this site the police MUST wait 20 minutes?

q2- also now this has all come to court, I told somebody at work as I thought it was going to come out anyway, this person said " this is absolutely ridiculous I sat opposite you all night, you drank hardly anything all night, and I am willing to tell police"

Do I ask that person to go to the police or attend court as my witness on return to court?

 

[price1367]

I find it very strange that the police would go round to someone's house and get the mot of bed on the basis that someone had the smell of alcohol on their breath and they "might drive". Wouldn't that have applied to everyone at the do?
Did the police statement acknowledge that you said you had drunk 2 glasses of wine at home since driving? That will help show that it was not something that you made up later.
Your friend at work will not help much, I think. It was a works do, I doubt he would be able to say that he sat opposite you for 4 hours, and went to the toilet at the same time and to the bar at the same time. Plus was he with you before you went out that night, and can say that you did not have a couple of glasses of wine then? He would have to have a day off work to give evidence, and I think he would not be able to answer the questions I have just posed to take your case forward at all.
SO, the report! That is what it will hinge on.

 

[BONNIE001]

Price, i am happy to e-mail you copies of key facts and statement witnesses to show you everything, don't know if this is
ok, but do trust you.

Is this possible?