Charged with drink driving? A specialist drink driving solicitor explains what to expect

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A specialist drink driving solicitor will tell a client charged with drink driving that the law in this area contains stricter penalties than most other areas of Road Traffic Law. A long ban can be distressing, because of the restriction it places on both someone’s professional and personal life.

The possibility of prison is of course even worse. While custody is possible, it is not the most likely outcome. The courts also have the option of reducing the length of a ban, and in certain circumstances will not disqualify at all(see our page on Special Reasons. There are also some defences).

We advise clients charged with drink driving day in day out, and have particular expertise in these offences, and we have included two case studies below followed by a general guide to the law in this area in theory and in practice, and the penalties, which in some cases can include a short prison sentence.

If you are facing a drink drive prosecution, it is not a situation you have to face alone. We are experts, and it is our job to protect your interests while this is going on.

Case Study 1

Our client was accused of driving with excess alcohol, with a reading of 51 micrograms of alcohol per 100 millilitres of breath. He was involved a minor collision with another car just outside his house. He had come inside, where his wife and a family friend were waiting. He had already had a small amount to drink before the accident, but not enough to be over the limit.

In the house, suffering from minor shock, he drank two brandies to calm his nerves. The police arrived shortly afterwards, he was breathalysed, arrested, and later charged with drink driving.

He instructed us to represent him. Because he had not been over the limit at the time of driving, he had a defence to the charge. This defence is called €œpost-driving consumption€ or also €œthe hip flask defence€.

It was not, however, simply a case of disclosing this defence to the police. This defence had to be supported in court by medical reports. We also called his family as witnesses that he had drunk the brandies after driving. One of our drink driving solicitors represented him in court, and he received the following verdict: not guilty, with a warning from the magistrates to take more care when driving.

Case Study 2

Our client had been for a drink after work with colleagues. She informed us that she had drunk two small glasses of wine, which over the period of time was not enough for her to be over the alcohol limit. She had been pulled over by police and had blown a reading of 60 micrograms of alcohol in breath on an ECIR breath test machine at the police station.

Our drink driving solicitors prepared witness evidence for the court relating to what she had drunk, and cross examined the police officer on the use of the breath test machine. Mistakes had been made, and the case was thrown out by the magistrates. Verdict: not guilty Client’s legal costs awarded by the court.

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The Legal Framework

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 (section 4(1) Road Traffic Act 1988). To prove the case, the prosecution must provide a printout from an approved breath testing device.

The offence of driving whilst unfit through drink or drugs is contained in section 4 Road Traffic Act 1998 (known as RTA 1988). As with driving with excess alcohol, It applies to public places (i.e. places to which the general public have access). This offence is often used where the police suspect drug use where no technology for drug detection is available. Evidence from a doctor who examines the suspect can be enough to convict, but can sometimes be challenged if approached correctly.

There are two stages of technology in detection and evidence gathering for these offences. The first is the road side breath test, which is used for officers to decide if they have grounds for arrest or not. The device used is usually a variation of the Lion Alcometer series of portable breathalyzers. 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 breathalyzers in police stations are usually either the Lion Intoxilyzer 6000 or the Intoximeter ECIR (the latter is used overwhelmingly in London and surrounding areas).

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. Failure to do these things could result in a defence to any prosecution for Failure to Provide a Specimen or Breath.

Blood and Urine Tests in Drink Driving Cases

Under certain circumstances, a blood or urine test is either an option for the arrested person, or is a requirement punishable with a ban if not provided. There are two major reasons why this should happen.

The first is if the breath reading is between 40 and 50 micro-grams per 100 milliliters of blood. The reason that the blood or urine test should be offered in these circumstances is because they are considered to be more accurate than a breath test, which is only considered to be a reflection of the true 80 mg per 100 millilitres limit. Because the alcohol ‘blood to breath ratio’ differs in individuals, somebody who is just over the limit on a breathalyzer may be under the limit for blood, which is the true indicator. Such a person will be technically guilty, but may not be disqualified if testing shows them to have an unusual ratio of alcohol in breath compared to blood levels.

If the police put inappropriate pressure on a person to not exercise their right to have a blood or urine sample, then that can amount to a defence. An officer giving his own opinion that a blood test is a bad idea is not usually enough. The defence must show that the advice was more than just an opinion, but was inappropriate and led the person to decline the blood test. Our drink driving solicitors have had cases of driving with excess alcohol dropped by the prosecution where such inappropriate behaviour has been raised by the client.

It is also worth adding that in blood and urine cases, the handling of the sample and recording of the sample’s handling by the police and expert is often deficient. These cases are very often open to challenge by the defence.

If you are charged with drink driving and convicted, what sentence are you likely to receive?

For a conviction of driving with excess alcohol the sentencing that the law dictates is stringent and inflexible. A absolute minimum of 12 months is required by law. Such sentences are rare and there should be no assumption on the part of the defence that the minimum length is inevitable. 2 year bans are around the average in the current climate for all but the lowest readings.

Magistrates considering sentence will bear in mind the Magistrates Association 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 argument relating to both the offence and the client can often bring the sentence down to a total of not much more than 12 months after an awareness course is completed. In many cases, the court will consider an awareness course to reduce the ban by a quarter.

Where readings are anywhere near 100 in breath, or if the client has a previous conviction, it is absolutely necessary to have legal representation. Custody is often avoidable if the right steps are taken before the client’s appearance at court.

Mitigation

There are different schools of thought relating to drink/drug driving guilty pleas, and what material is relevant to the court. One approach is that there is little point addressing mitigation for drink related offences when apparently clear magistrates guidelines exist.

This is plainly defeatist and of no help to the client. Judges have the option of leniency for most offences, and a well argued guilty plea can often reduce a ban a year or more.

Another apparently more convincing approach is that only mitigating evidence relating to the allegations (ie that the offence is less serious etc) should be brought before the court. This is the conventional wisdom, that facts relating to the offence and not the personal circumstances of the client are relevant to the court. But 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

The classic defences include the hip flask defence (see above), defences of necessity and of ‘laced drinks’ (usually fought under Special Reasonsr provisions).

Special Reasons

Special Reasons is a legal principle codified in the case of Whittall v Kirby which 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. See the section on Special Reasons.