KNOW YOUR RIGHTS
side of licensing hours it depends entirely on whether the owner invites the patrons to leave vehicles overnight or generally the local public use the car park, or whether the owner locks up for the night and re- stricts access.
4. WITH EXCESS ALCOHOL / WHILST UNFIT
The final element is that the subject was either above the limit or unfit to drive.
The legal limits are: • 35g of alcohol per 100 ml of breath • 81 mg of alcohol per 100 ml of blood • 108 mg of alcohol per litre of urine
Breath is taken from an evidential machine at the police station. The roadside devices used by police officers are only screening devices giv- ing an indication as to whether the subject is above or below the limit.
The primary request must always be of breath but in certain circum- stances the police can move to a secondary liquid specimen of either blood or urine.
The procedures for requiring breath, blood or urine are complicated. There are various warnings that must be given and procedures that must be followed to ensure that the specimens are taken correctly. There are thousands of mistakes that could potentially happen, some of them are completely irrelevant and others may be fatal to the pros- ecution case. Our advice is always to seek specialist legal advice.
If, for any reason, the prosecution cannot prove that the person is above the limit, for example if the accuracy of the of the reading cannot be guaranteed, there is an alternate charge of “being unfit to drive”.
Here the exact reading doesn’t matter but instead the prosecution has to show that the person generally is unfit to drive through drink. Usu- ally they do this by carrying out impairment tests either at the roadside or the police station, which may include the subject walking in a straight line, counting to 30 in their head and touching the tip of their nose with their index finger. The charge however is quite rare as in most cases the police will have a specimen.
DEFENCES / SPECIAL REASONS
Where the Prosecution can prove each element of the offence the next point to consider is whether the defendant has a defence or a special reason available to them. Below we look at the five most common:
1. Post driving alcohol consumption - this is commonly known as a “hip flask” defence and is where the defendant drank alcohol after they stopped driving. To prove it the defendant has to show:
a) that they consumed alcohol after they stopped driving; and b) that it was only because of the alcohol after driving they were above the limit (i.e. they would not have been above the limit anyway).
It is strongly advised to get as much evidence as possible including photographs of any alcohol consumed after driving, witness state- ments from any person that would have seen alcohol being drunk after driving and certainly an expert report calculating the figures to prove that without the additional alcohol the person would not have been above the limit (unless it is obvious – for example a per- son consumed no alcohol at all before driving and five doubles af- terwards).
2. Laced drinks - this is an argument where the defendent argues that his drinks were laced with alcohol without his knowledge. To prove this defence, the defendant must show that:
JULY 2020
1) How far the vehicle was driven (usually a few yards); 2) In what manner it was driven; 3) The state of the vehicle; 4) Whether the driver intended to go further; 5) The road and traffic conditions at the time; 6) Whether there was a possibility of danger by coming into contact with other road users or pedestrians;
7) What the reason was for the car being driven.
There are however other defences available to defendants that may not be in the above list. If you have any questions about a drink-driving offence, whether you have been charged or you are under investiga- tion, whether you consider that you may have a defence or you believe there may have been a procedural error, always seek legal advice.
The offences are complicated and require specialist legal advice.
If you need any advice on motoring matters please email:
e.patterson@
pattersonlaw.co.uk or call 01626 359 800 for FREE LEGAL ADVICE. For regular updates on road traffic law follow us on:
facebook.com/PattersonLawMotoringSolicitors or
twitter.com/Patterson_law_
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a) his drinks were laced b) that he did not known or suspect that his drinks were laced; and c) without the laced alcohol, the defendant would not have been above the limit.
Similar to the above, it is strongly advised to get as much evidence as possible - certainly a witness statement from the person who laced the drinks or at least statements from other people who can give evidence that the drinks were laced. An expert report is almost certainly required here as well to prove that it was only the laced alcohol that caused the defendant to be above the limit (again, unless it is obvious).
3. Emergency / Medical condition - where there was an urgent medical situation and driving was the only option. Here the court will have a look at the medical situation itself, whether it was a life or death situ- ation and also whether driving was necessary – i.e. whether alternate means of transport were exhausted and driving was the only option.
4. Fear of safety - where the defendant is in genuine fear of safety. It does not necessarily have to be proved to be a genuine situation of life or death, or of serious risk to injury, just what the defendant per- ceived. So there have been cases in the past where the defendant has effectively got the wrong end of the stick yet at the time gen- uinely believe they were in a serious situation and there was an im- mediate threat to life. But again, the court will have a look at the circumstances, whether driving was necessary and whether alter- nate means of escape had been exhausted or were not appropriate in the circumstances.
Another point to consider is that you must only drive as far as neces- sary. So, the subject drives a couple of hundred metres to escape the immediate threat it may be considered reasonable. But it may not be considered reasonable if the defendant then drives a further two miles home when it would have been just as safe to stop the vehicle and walk.
5. Shortness of distance - where the defendant only drove a very short distance and for a very good reason, the courts have the discretion to find special reasons not to disqualify or to reduce the minimum period of 12 months down to a lesser period of disqualification.
The leading case here would be Chatters –v- Burke [1986], in which it was held that there are seven criteria that must be considered. They are:
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