Help and advice with Excess Alcohol offences

So, you or someone you know needs some help in relation to drink driving law. This website is designed to help you through the minefield of information you need to know. It is written by lawyers who have spent their careers dealing with excess alcohol cases but believe that access to information is not something which you receive after a massive financial outlay. The site is entirely free and included in the list of links at the bottom of the page is a link to the Driving Defences.com website where you can gain more free information by telephoning the on call solicitors. Please note whilst there is a lot of factual information, some of the information in this site is the opinion of lawyers who deal with these matters on a day to day basis. The writers do not condone alcohol related driving offences but as defence solicitors we do believe that every person accused of a crime is entitled to good legal representation.

Roadside testing

The roadside test is often confused as the deciding factor as to whether to arrest a person and take them to the police station or not. In real life situations the officer’s opinion is enough to allow the officer to arrest you. Some officers will use a roadside breath test to determine whether or not you are intoxicated but they can also ignore the results of the test or can simply decide not to give you a roadside test.

As the current law stands you cannot be convicted of driving with excess alcohol simply through using a roadside test but this may change in the near future.

Failure to provide a roadside breath test can lead to a charge in itself under Section 6 of the Road Traffic Act 1988 (known as RTA 1988). It carries a penalty of 4 points or a discretionary disqualification and a fine of up to £1000.

Driving with Excess Alcohol

Most people who are charged with drink related driving offences are charged with driving or attempting to drive after consuming so much alcohol that the proportion of it in his or her breath, blood or urine exceeds the prescribed limit under section 5 Road Traffic Act 1988.

It is always important to remember that if you have found yourself in a custody suite to recall and record as much detail of what has been done and said as possible. If the custody staff and intoxiliser operator have not completed the procedure correctly it may lead to the court not proceeding with the conviction.

Most straight forward excess alcohol convictions follow the arrested person providing a sample of breath on a government approved device. The breathalysers in police stations are usually either the Lion Intoxilyzer 6000 or the Intoximeter ECIR. Once the sample has been provided, if it is above the legal limit of 35migrogrammes (mgs) the Crown will be seeking a conviction under section 5 RTA 1988. If the reading is under 40mgs the Crown Prosecution Service will usually not proceed with the charge.

Blood and Urine

If the reading is 50mgs or below the Intoxilyzer operator will, if following the procedure correctly, explain that you have the right to have your specimen replaced with blood or urine. The officer should not do anything to persuade or dissuade you in this decision. If you do decide to have the specimen replaced then it will be for the officer to decide whether the replacement be of blood or urine.

If the officer decides to take blood he will then call a doctor or health care professional to take the specimen. Your consent must always be sought and given. This specimen should be split into two and you must be offered your own sample to be examined by your own toxicologist. The other sample should be sealed and then sent to the police toxicologist. Typically you will be bailed to re-attend at a date when the sample has been examined. The legal limit in blood is 80mgs. Two samples taken at the same time are often not exactly the same. Moreover when the samples are examined, to account for a margin of error a further 6mgs is deducted from the reading. If this remains at over 80mgs the police will proceed with a charge. The Crown Prosecution Service will usually proceed with a charge even if it is only 81mgs.

If the officer decides to take a urine specimen then you should be taken by a same gender officer to a room to provide a sample of urine. The officer should use an approved testing kit and the first sample provided should be discarded. You will be asked to provide a second sample which is the sample that will be used for analysis. As with blood, this sample should be split in two and you must be offered your own sample to be examined by your own toxicologist. The other sample should be sealed and then sent to the police toxicologist. Typically you will be bailed to re-attend at a date when the sample has been examined. The legal limit in urine is 107mgs.

It should be noted that in certain circumstances such as lack of a suitable Intoxilyzer machine or medical reasons the officer can skip the use of the Intoxilyzer machine and go straight to the option of blood or urine.

Attempting to Drive

Whilst convictions for attempting to drive are rare it is definitely a valid prosecution if the Crown can show that you were attempting to drive a vehicle. If you are sat in a vehicle which has not moved which is in gear and has the handbrake off, a charge under Section 4 RTA 1988 would not be unreasonable.

Driving whilst unfit through drink and drugs

The offence of driving whilst unfit through drink or drugs is contained in section 4 Road Traffic Act 1998. This offence is used where the police suspect drug use or alcohol intoxication but have no samples to rely upon for a conviction. Evidence from a doctor who examines the suspect can be enough to convict and sometimes convictions are sought from the evidence of a police officer but as this evidence is only opinion it can be challenged.

Drunk in charge

The offence of drunk in charge is an offence which is very easy to commit but has a statutory defence which is very strong. If you are in or near to your vehicle whilst intoxicated you are in charge of the vehicle whilst intoxicated and therefore could face a prosecution. Factors such as presence of keys and the engine running all have a bearing upon a case such as this, but the real key to defending a case is intention to drive. If you can show that despite being in charge of the vehicle at no point were you intending to drive, then the statutory defence should apply. You will need to convince the court of your lack of intention and you will need to show when it was your intention to drive next. An expert will be required to carry out a calculation to show that at the time you were intending to drive next you would not be intoxicated and if this is proven to the satisfaction of the court a not guilty verdict should be returned.

Fail to provide a specimen

Fail to provide a specimen is only one offence but can be committed by failing to provide a specimen of breath, blood or urine. At no stage will the officer or the Crown need to prove that you drove the vehicle.

If following an attempt to provide a specimen of breath, no samples or only one sample has been provided, the Intoxilyzer operator has a choice whether to restart the process or charge you with the offence of fail to provide. If you have failed to provide a sample without trying or whilst trying, you can defend the case if you can show the court that through a physical or mental disability that you could not provide a sample. You can be found not guilty as you had a “reasonable excuse”. As case law has developed it is now clear that to show this mental or physical inability you need an expert to confirm that your reason is genuine. The most common reasons presented at court are lung problems or problems forming a seal around the mouthpiece.

Failure to provide a specimen of blood is an offence but if a sample of breath has been obtained and you have opted to provide blood you should not be convicted of failure to provide a sample. In this scenario the Prosecution should proceed on the breath reading already obtained. If you have a genuine medical reason for not providing a sample of blood following a requirement then you must convey this fact to the officer. He should then seek a medical opinion as to whether to require a urine specimen or continue with a blood specimen. This is important as it is very unsafe to require you to provide blood if you have a medical reason not to do so. A common reason for failure to provide blood is due to needle phobias. If you refuse on this basis the matter is defendable but an expert assessment as to whether your needle phobia is genuine would be required.

Failure to provide a sample of urine is a very complex matter with a large number of cases surrounding the area. As with all the fail to provide situations failure to provide without a reasonable excuse will most likely lead to a conviction. The complication comes however with the fact that with a urine specimen, time limit of one hour is placed upon the defendant to provide a useable specimen of urine. Sometimes anxiety can be a problem and it can prove difficult to bring this condition under the heading of a reasonable excuse. The area is further complicated by the fact officers are allowed the discretion to increase the time scales but of course that means some people are given an hour and some are given longer which is grossly unfair to those who are given only an hour and then fail. The best advice we can give is to do all you can to comply and keep a note of events and times. Then, if charged, contact a road traffic specialist for advice on your specific set of circumstances.

Post driving consumption

In rare circumstances after having driven a vehicle (and often after a collision) people drink extra alcohol and then are arrested for drink driving. This is often referred to as a “hip flask defence”. As suggested above there are often periods of time where the police are not yet involved with an offence where people continue to drink, often to calm themselves after an incident. If it can be proven to the satisfaction of the court that the alcohol level before the extra alcohol would have been below the legal drink driving limit then a not guilty verdict will be given. Experts opinions are crucial in this type of defence and a record of what was consumed will also be critical.

Hospital procedures

The procedure that the police have to follow at the hospital is very different from that at the police station and is quite complex. There is, of course, no Intoxilyzer machine at the hospital and therefore the procedure involves road side breath kits, blood and urine. Issues of lucidity and consciousness are important, especially in fail to provide cases. Two doctors are involved in the process and consent from the doctor whose care you are under is an essential element. Due to the complexity an expert review of the MG/DD/C (the pro forma completed by the police) would be a starting point in a case such as this.

Duress of circumstances

If driving whilst intoxicated due to a circumstance beyond your control incorporating an element of duress the court may find you not guilty. It should be noted that only in very extreme cases of duress would this defence be available.

Special reasons not to disqualify

Under certain circumstances the courts have a discretion to impose a shorter level of disqualification or no disqualification following a guilty plea or following a guilty verdict of trial. Below is a list of the main headings under which the courts would consider these factors:

Emergency Circumstances

It should be noted that great emphasis is put upon the word “emergency”. It is not enough to simply suggest that you felt the best thing to do in a situation was to drive. There needs to be a real emergency and the courts will give great consideration as to why you could not phone for a taxi, police officer or ambulance.

Laced drinks

If you have consumed more alcohol than you were aware of and as a result have been found to be driving over the limit you are guilty of the offence. However, if you can convince the court that you were unaware of the amount of alcohol you consumed then the court can exercise their discretion. You will need to show the court that you would not have been over the limit if you had consumed an amount of alcohol which was in your knowledge. This is usually done using an expert. It is important that if someone accepts having laced your drinks that they will face serious consequences if they are found not to be telling the truth or if they knew you were intending to drive but increased the amount of alcohol you were consuming regardless. The level of intoxication is going to have a serious effect on this kind of case because there will be a point where a reasonable person would become aware that he or she is too far over the limit to drive, regardless of what they think they have consumed.

Shortness of distance

If whilst intoxicated you move your car a short distance the court can reduce or completely remove any disqualification. There are seven criteria such as road conditions and reason for driving which are relevant as well as the distance travelled. In these situations the distance travelled does need to be very short to achieve a successful outcome.

Mitigation and Sentence

Rather than go through each individual offence we have included the Magistrates Sentencing Guidelines as a link for you to review yourself. We would however emphasise, that mitigation from solicitors and barristers can greatly improve your chances of a lower level of punishment. There is no legal trickery, it is simply the case that if the Magistrates understand the effects of the punishment they are considering, it is possible that you could gain sympathy from the court. There are very few courts that have sympathy for people who are too nervous to explain their own case properly. You should be aware that whilst mitigation can be successful in reducing the level of punishment, aggravating features can greatly increase the level of punishment. Examples of aggravating features are causing injury, being involved in a collision or evidence of the manner of your driving.

Rehabilitation Course

Following a guilty plea or conviction the Court has a discretion to offer the drink driving rehabilitation course. If the court feels that you are someone suitable to attend upon the course a reduction in disqualification can be offered of up to 25%.

Appeals

If convicted on an excess alcohol type offence you have a right to appeal. You must inform the court of your intention to appeal within 21days and you can either appeal the whole decision or the sentence which has been imposed. If an appeal is requested the court has a discretion to suspend the disqualification pending the outcome of appeal.

 

 

We hope this information is of use to you. Please do not hesitate to contact our lawyers if we can be of any further assistance.

Excess Alcohol © 2008