Drink driving. Do I have to accept what the prosecution say?

Nick Ives

Senior Paralegal,Mary Monson Solicitors

The stigma around drink driving is a relatively modern thing. Many people reading this article will remember their family members hopping in the car and driving to the pub for a few pints before driving back home without a second thought - even more so if you grew up in the country. The landscape has changed, road safety is now a serious business and anyone caught putting other people's lives at risk through seemingly reckless behaviour is likely to be shamed and their licence revoked. This makes it all the more important that anyone charged with this offence seeks advice from specialist drink driving solicitors to help them understand the basics so they can make informed decisions.

The Law

Most people who are charged with drink driving offences are charged under the offence of Driving or attempting to drive ‘with excess alcohol' in blood, breath or urine. To prove the case, the prosecution must provide a printout from an approved breath testing device.

There are two stages of technology in detection and evidence gathering for these offences. The first is the roadside breath test, which is used for officers to decide if they have grounds for arrest or not. The device used is usually a portable breathalyzer. The device will give an indication of whether the test is a pass, fail, or if no reading can be given.

It may also give an indication of the level of alcohol in the breath, although the roadside devices are not recognized by UK Courts as giving a reading that can lead to a conviction. This evidence has to be obtained at the police station, either by a reading from a fixed position breathalyzer in the police station, or by blood or urine sample.

The officer supervising the breath test must give clear instructions beforehand as to how to use the equipment, and give a statutory warning that failure to supply the specimen of breath will result in prosecution.

Blood and Urine Tests in Drink Driving Cases

There is a common misconception that people have the right to request a blood or urine test at the police station. This is not the case. An officer can request a blood test when:

• There is no breathalyzer available at the station

• The breathalyzer is providing inaccurate or inconclusive readings

• On medical grounds

The only time where the blood/urine test is automatically preferred over the breathalyzer is where the client is injured in an accident and is being treated at the hospital. It is common, but not required, that where someone has blood or urine taken they are also provided with a sample to conduct their own independent analysis. Government guidance states that the sample handled by the police should be sent to the lab within 1 week of being taken - this is an important point as blood is an active substance and change over time and if mishandled or not dealt with in good time it could cast doubt on the lab results.

Sentences

For a conviction of driving with excess alcohol the sentencing that the law dictates is tough and inflexible. An absolute minimum of 12 months is required by law. Such sentences are rare and there should be no assumption on the part of the specialist drink driving solicitors. that the minimum length is inevitable.

Magistrates considering a sentence will consider the Sentencing Guidelines, which give guidance for longer bans, community orders, or prison. These are, however, merely guidelines, and for all except very high readings, a well-prepared mitigation from the drink driving solicitors can often bring the sentence down. In many cases, the court will consider an awareness course to reduce the ban by a quarter but this must be requested and is not granted freely.

Where readings are anywhere near 100mg in breath, or if the client has a previous conviction for the same offence, it is absolutely necessary to have legal representation from a specialist drink driving solicitor. Custody is often avoidable if the right steps are taken before the client's appearance at court.

Mitigation

Judges have the option of leniency for most offences, and a well-argued guilty plea can often reduce a ban by a year or more. Magistrates are not lawyers and are subject to the same motivations as most people when making decisions about how to deal with people. Take the example of someone whose career and family life are left in tatters, or cares for a disabled relative who will have mobility problems if they cannot be driven around. Such situations, sensitively presented, can amount to good reason to reduce the length of a ban.

Defences

Defences are limited but include the 'hip flask' defence - this is where someone charged with drink driving states that they drank after they had driven and been breathalysed. It is a defence that often requires the specialist drink driving solicitors will have to obtain scientific evidence from an independent expert to help rebut the assumption that the client was over the limit at the time of driving.

The defence can also question the equipment used by the officers but the courts will be mindful that there have to be good grounds to suspect the equipment was faulty or poorly maintained before allowing any arguments to be presented. The leading authority in this is the case of Cracknell vs Willis which allows the client the possibility of introducing indirect evidence that the equipment used might be faulty - essentially the client can introduce their own evidence of how much they drank before being stopped which casts doubt on the readings. It is then down to the prosecution to show that the machines were properly maintained and functional. The truth is that the prosecution and the police are typically inexperienced in proving the veracity of their own devices which is the reason why many of these cases succeed when challenged.

Special Reasons

'Special Reasons' is a legal principle that gives discretion to a judge to not disqualify a driver where, even though the defendant is guilty in law, an exceptional mitigating circumstance exists which means that no ban should be imposed.

Examples of Special Reasons arguments might include:

• Driving someone to hospital during a medical emergency while over the alcohol limit

• Driving to rescue a person from danger and speeding to get there

• Driving whilst over the limit after your drinks have been unknowingly spiked or laced

For the first and second examples above, the driver must usually feel that there is a genuine exceptional situation which cannot be solved by other means. So if someone else could have driven the ill person in the first example, then Special Reasons are less likely to be accepted, and a ban could follow.

With laced or spiked drinks, it must be shown that if the drinks had not been laced, the defendant would have been under the limit. In nearly all cases, this has to be proven with medical evidence from an expert in alcohol calculations.

A court will not allow a Special Reasons argument to succeed where the fact that the defendant was driving was not proportionate to the need to break the law. The court will also bear in mind, among other things, the driving conditions, the state of the vehicle being driven, the length of the journey, and, in alcohol cases, whether a sober person at the scene would have recommended driving. In non-emergency cases, or in situations where the Special Reason involves some type of mistake or error in understanding, the reasonableness of that mistake will be tested thoroughly by the prosecution and examined closely by the magistrates.

Nick Ives

Senior Paralegal,Mary Monson Solicitors