KNOW YOUR RIGHTS
An example of the offence may be if you go to a well- known Swedish furniture store and overload your car to the extent that it prevents you from getting out of the door. In those circumstances it may be argued that the overloading would prevent escape in an emergency (this is a genuine case that we had a few years ago - the driver was convicted and received three points on his licence).
If you don’t accept the fixed penalty notice within 28 days, then the matter will progress to the Magistrates’ Court and you may be asked to attend for a court hearing. If you are sentenced at the Magistrates’ Court for failing to wear a seatbelt, the fines and costs will increase.
FEB ARTICLE: CLARIFICATION
We were asked a very interesting question about one of our case studies from last month.
For those who may not have seen it, we handled a case recently where our client had been charged with driving whilst unfit through drink after a collision with a bus stop. When the police arrived at the scene and breathalysed him, he was above the drink drive limit. But importantly, by the time he was arrested and taken to the station he had dropped under the legal limit. Yet the police still charged him.
The question we were asked was: “can the police prosecute someone when they are under the limit? And if so, why bother with the test at the station at all?”
It’s a very good question and there is no easy answer. But the key is the offence that he was charged with.
There are a couple of different offences of drink driving.
1) The first is driving a vehicle with alcohol above the prescribed limit (driving with excess alcohol). This is the most common offence you will see for drink driving, and compromises probably 99% of prosecutions. In order to prosecute the police must be able to prove that a person was driving a vehicle in a public place whilst above the limit (i.e. they must have an evidential reading at the police station or from the hospital that is above the legal limit).
2) The second, which is a lot rarer, is called “driving a vehicle whilst unfit through drink”. This is what our client was charged with. It is a lot harder to prove, because regardless of the reading, the
PHTM MARCH 2023
police must prove that they were (a) unfit to drive; and (b) that the unfitness was caused through drink. Because it’s much harder to prove the police tend not to prosecute for this offence unless they absolutely have to (e.g. if the person was over at the roadside but under by the time they got to the station, like our client).
So, in our client’s case the police couldn’t charge him with driving above the limit, but they still suspected him of being unfit through alcohol so they prosecuted him with being unfit.
Ultimately, the police can charge with whatever they want. The question is whether those charges would stick in court.
They sought to prove that the collision he had, together with his demeanour, was proof that he was unfit through alcohol. However,
throughout the
dealings with the officer the client had made reference to the fact that they had been tired and at one point, the officer even stated that the client fell into a deep sleep. And because of that, the police could not prove that his unfitness to drive was caused by alcohol and not through his tiredness, so they dropped the charge.
As an aside, in this case there could have been another option open to the police – to do a ‘back calculation’. This is where the police have got a reading under the limit at the station (which may be some hours after a collision) and then instruct an expert toxicologist to work backwards to calculate the alcohol level in the driver’s body at the point of driving. If they successfully do so, then they can also charge with the first offence of driving whilst above the limit.
However, these aren’t overly straightforward as they have to take into account height, weight, sex, alcohol consumed after driving, medication and other factors. Generally, because of the complexities and costs involved with expert toxicologists, the police don’t often go down this route.
If you need advice on motoring matters then please email
e.patterson@
pattersonlaw.co.uk or call us on 01626 359800 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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