Make sure you consult with an experienced road traffic lawyer .

Always ask a lawyer if you are unsure about any of the advice and information provided here.

Your solicitor will require to ask the court at time of sentence to consider making a drink drive rehabilitation reduction. Many Sheriffs do not accede to this request without a full and detailed explanation as to why. Some think that it should only be allowed where the drink drive limit has only just been exceeded others consider that it is only appropriate where there is a drink problem. Each Sheriff has to be approached with the benefit of experience and understanding when making a suggestion that you should be placed on the scheme. It can reduce your disqualification period by 25% but the Sheriff can exercise his discretion and allow a shorter period of reduction. Again a situation where an experienced road traffic lawyer can make a big difference to the outcome.

The course fee is £130 (£95 if on benefits). Upon conviction your solicitor must intimate to the court that you agree to attend a Drink Drive Rehabilitation course and the court will consider a reduction of your period of disqualification. The solicitor has to know when it is appropriate to recommend such a reduction.

The Drink Drive Rehabilitation Scheme has been thoroughly tested and is regarded by many Sheriffs and Magistrates throughout Scotland as a proven method to reduce the re-offend rate. It is an ideal disposal for the offence of Drink Driving, to be used in conjunction with a disqualification period, plus a fine, community service, probation order or custodial sentence, as the severity of the offence dictates.

Once the verdict and penalty have been announced, the Court must decide whether the offender is suitable for the Scheme. Most Courts, conscious of current 'Human Rights' legislation, refer all drink drive offenders for training.

Making a Referral Order involves the following:

* assessing suitability
* offering the course to the offender
* the offender accepts or declines
* the Hearing ends
* if the offender accepts, the completed Referral Order is forwarded to the training provider

The guidelines to the Scheme list several factors which affect suitability:

* a place is available on an approved course. We can recommend VMCL(VMCL are approved training providers and guarantee to train all offenders referred to them under the Scheme, making it unnecessary for the Court to check availability)
* the offender is at least 17 years old
* the offer has been explained to the offender in ordinary language

Once an offer has been made to the offender, the Court should state:

* the amount of reduction in the disqualification period the offender will receive for completing the course
* the date on which the reduced ban ends
* the date by which the course must be completed

The offender must agree to the offer of attending the course before an Order is made. Inclusion in the Scheme is voluntary; there is no penalty for choosing not to be included.

After the Hearing, the Court's administration section creates the Referral Order. The Order is signed by an Officer of the Court and a copy forwarded to the training provider.

You attend as required and upon successful completion of the course you will be entitled to a reduction in your period of disqualification.Post Incident Drinking Defence

Drink/drivers should be aware that there is a legal presumption taken from section 15(2) Road Traffic Offenders Act 1988 that the proportion of alcohol in a drivers breath, blood or urine at the time of the alleged offence was not less than in the specimen.

This means that the defence require to establish the defence if the driver claims that he/she had been drinking after the incident but prior to giving a sample. Check section 15(3) - if the driver establishes the matters set out at section 15(3) on a balance of probabilities then the defence is made out and must be rebutted by the Crown case. This type of defence is common in practise but uncommon in success. It is often referred to as "The hip flask defence" coming from the term used in a case where the accused claimed that after a crash he had taken a few drinks from his hip flask to calm his nerves. Sheriffs tend to take the view nowadays that anyone who has been involved in a road traffic accident will expect to be tested and would be extremely unwise to consume any more alcohol in these circumstances. It is therefore VERY difficult to establish such a defence.

It is not impossible but will usually require the evidence of an independent forensic toxicologist who can provide a detailed report that will hopefully support the accuseds' explanation of the amount of alcohol consumed and when.

The defence must call scientific evidence on the point unless it is obvious to a layperson that the post offence consumption of alcohol explained the excess. Never assume that it would be obvious, you would generally always be wise to seek out a report and to forward a copy of same to the Crown well in advance of the trial to have it agreed wherever possible. Reports normally cost in the region of £250+Vat to prepare however if you require your expert to come to court to give evidence this can be very expensive. It will depend upon the time taken for the witness to be called and to give evidence.

If a driver provides a specimen a long time after the driving offence and this proves to be below the limit the forensic experts acting for the Crown may provide a report indicating that at time of offence the blood alcohol was over the limit and therefore the driver may still be prosecuted. This is not something that happens very often probably due to the evidential issues and difficulties n presenting the case in a fair manner.

The Expert evidence on post incident drrinking

The expert will provide a report setting out his presumptions and the mathematical calculations used in coming to any conclusion.

To be successful you really need to provide the expert with as much accurate information as possible otherwise there will always be an element of guesswork about the process and this will work against you. Although the defence ONLY requires to be made out in the Balance of probabilities you will find that this is still a high standard. It is worth instructing a specialist law firm to assist with this whole process but however you proceed there will be a set amount of information that your expert requires. It can be worth calling the forensic department of your local University to see if they have an expert available and then ask them to fax you a list of they require. They sometimes have a form that you can use to provide the required information
Basic Information Required

* Full detail of any food consumed from six hours before the
* offence.
* Weight, height, build, age and sex
* Known medical condition (Acid reflux, irritable bowel etc)
* Medication taken regularly, or within 6 hours prior to drinking;
* Type and quantity of alcohol consumed before the offence and, if possible, the times at which the units of alcohol were consumed. Brand names ok and provide the actual containers that the drink was consumed from eg Glass marked with the measure taken.
* the same information concerning any alcohol that you consumed after the offence but before you gave the specimen for the test.

Failing to provide.

This is a complex area of law and there are a great many cases that have assisted us in the definition of what is and is not a "reasonable excuse". It is not a reasonable excuse to state that you did not give a sample because you wanted your lawyer to be present. Nor is it a reasonable excuse to refuse to provide a specimen of breath or other sample simply because you had not been the driver.

The main successful area of reasonable excuse has tended to be cases where there is a genuine medical problem such as Asthma or real phobia of needles etc. Medical evidence of such a phobia or condition will require to be obtained and examined. Simply because you are asthmatic will not preclude you from providing a sample. The court will require full details about your condition and how it would affect your ability to provide a sample. Expert evidence may be required in relation to your psychological state as this could also have had a bearing on whether or not you could commit this offence.

Once such a defence is raised, the onus is upon the Crown to prove beyond a reasonable doubt that it has failed and that you are therefore guilty of the offence.

Failing to provide a sample is a very interesting area of defence and we have had a great deal of success in defending such cases. We do not wish to publicise just how we have been successful as this is a competitive area of the law and we all guard our knowledge jealously. If you want the benefit of our success in this area pleas e call or provide us with some of your case details online.
Procedure for blood or urine samples

An area of some confusion as the motorist tends to believe that they have a choice about what type of sample is given and how and where it should be given. You will find that the police officer requesting the sample can decide what type of sample is to be used. Sections 7, 8 and 9 of the Road Traffic Act 1988 set out procedures which must be followed by the police when laboratory samples of blood or urine are taken. Sometimes police officers fail to follow the strict guidelines that are laid out in the forms that they use as an aide memoir when following the procedure and then he defence have an opportunity to win their case!

The admissibility of those specimens in excess alcohol cases depends upon the procedures being followed strictly. The procedures are set out in this manner to secure a fair and just process that is beyond reproach.

As a suspected driver you are legally obliged to provide a sample where an officer has reasonable grounds to suspect that you have driven a vehicle whilst under the influence of drink or drugs. Do not refuse to give a sample because you were not driving or you were not driking- Bad idea to refuse as this is a separate offence. Let the lawyers sort out the presentation of the defence at court. It is best for you to cooperate fully with the testing process and procedures and simply note carefully what is being said to you and what is going on.

Before a sample is taken the driver needs to be told:

* The reason why breath cannot be used as a sample;
* That the officer will decide that the sample will be Blood or Urine and what it will be.
* Tell you that if you refuse then this is a separate offence. I tend to think they should also tell you that you will most likely be disqualified from driving or holding a licence if you fail to provide.
* If they want to take blood they require to ask about medical conditions or any reason to refuse such a specimen. (The police casualty surgeon is called out to take a sample of blood from you)

Section 8(2) of the Road Traffic Act, a driver may choose to replace a breath specimen by supplying a lab sample in the following circumstances

* Where the specimen of breath exceeds the statutory limit; but does not exceed 50 microgrammes of alcohol in 100 millilitres of breath

The police officer then require to inform you

* You are entitled to have this specimen replaced by a specimen of blood or urine; but it will be for the police officer to decide whether the replacement specimen is to be of blood or urine.

* He has to check if the driver has any medical reasons why a sample of blood cannot or should not be taken from him.

There are sometimes failings in this process and we find that we can successfully defend motorists in such cases where the police have failed in the procedure required of them.

The test of whether the officers failure has caused a fundamental breach of procedure that cannot be cured is usually a matter for the Sheriff however in circumstances where the police officer has failed to check if you have any medical condition that precludes you from giving such a sample we can safely say that we should win that point and save your driving licence.
Blood or urine samples when at hospital

Sometimes samples are taken from a driver when he/she is in the process of receiving treatment following a road traffic accident. Again this is an area of law where the prosecution require to be careful about the methods used to ensure fairness and admissibility of evidence.

The reporting police officer should ASK the driver if there is any reason that he/she cannot provide a sample of blood for analysis. Sometimes this whole process is just handed over to the police casualty surgeon or to a Doctor who is in attendance for another treatment reason. One has to consider if proper legal cautions have been provided and if all proper procedure followed.There is often room for error in the procedure and this area therefore requires careful consideration of a specialist road traffic lawyer.
The Breath Testing Equipment

The Intoximeter EC/IR, the Camic Datamaster or the Lion Intoxylizer are used throughout the Uk we understand from experience that the Intoximeter EC/IR is now the most widely used piece of equipment for breath testing in Scotland.

They are all type approved and as such certain presumptions of reliability follow. If the defence wish to challenge the reliability iof such a device they really require to do so long before the trial!

They will require to have checked the instrument, the service log,the calibration process, the details of use on day and any other aspects of use. However they may find that the Crown are reluctant to cooperate with the defence on the basis that the whole issue of challenge is merely a "fishing expedition" for the defence.

Therefore when instructing your lawyer on this issue you must bring up the issue of device reliability if you consider it important eg If the reading seems way to high then you should explain to your lawyer what alcohol if any was consumed and why the machine must be at fault. You may require to obtain a forensic toxicologists report to validate your claim BEFORE the Crown will even allow your solicitor to obtain any details regarding the intoximeter device. If the Crown persist in their refusal to provide disclosure on this issue then other areas are open to the defence in an attempt to secure the access to documents that is required for the proper presentation of your defence. You will require an experienced defence lawyer to pursue these issues with the required vigour for success.
Breath Alcohol Less than 40ugs

In Scotland a Lord Advocate's directive ensures that persons with a reading of 40ug or less will not be prosecuted and in England a driver will not be prosecuted under section 5 with a breath alcohol level of less than 40 ugs. In accordance with the guidelines contained in Home Office Circular 46/1983. Drink Driving In Scotland raises a lot of questions please do not hesitate to call or e mail for advice.

The Hip Flask Defence-Post Incident Drinking

Posted by Graham Walker in Scotland driving, Motoring lawyer, failure to provide, drunk driving Scotland, drunk driving, drink driving Scotland, drink driving, drink drive, drink, dangerous driving scotland
The Road Traffic Act 1988 contains a number of offences connected with drink or drugs, including the offence of driving or being in charge of a vehicle whilst being above the legal limit for alcohol.

A specimen of breath, blood or urine from a driver suspected of any of these offences will normally be taken by the police for use in the case against him.

The effect of section 15 of the Road Traffic Offenders Act 1988 (the RTOA) is that it will be presumed that the level of alcohol in the specimen was at least the same as the level of alcohol in the suspected driver's breath, blood or urine at the time of the alleged offence. i.e Whatever your reading then the court reckon that this was the reading when you were driving or in charge of the vehicle.

However if a driver drank after the alleged offence, then the level of alcohol in the specimen will obviously be higher than the level of alcohol at the time of the alleged offence. This is often referred to as the "Hip Flask Defence ". It comes from the reference of an accused to taking a drink from his hip flask to steady his nerves after a road accident. Nowadays Sheriffs are suspect of this defence and it will take a great deal to persuade one that you were so shocked by an accident that you had to have a drink to calm yourself down. The social climate has changed since the hip flask defence first made its way into the courts of Scotland and most Sheriffs would want to hear a VERY GOOD reason for you taking the decision to drink especially where you would know or reasonably expect the police to become involved in the investigation of an road traffic incident.

In cases where the suspected driver drank alcohol after he stopped driving or being in charge of the vehicle but before the specimen was taken, section 15 of the RTOA provides that it is a defence to show that the post-incident drinking caused the specimen to have a reading which was above the legal limit.

What the defence need to prove

Usually the Crown have to prove your guilt but here we have the situation where we, the defence have to establish your innocence! OK, we do not need to prove it "Beyond a reasonable doubt" but the standard that we require to meet is still a high one.

The defence must show that the post-incident drinking caused the specimen reading to be over the legal limit on a balance of probabilities - that is, a greater than 50% likelihood.

The defence case has to be particularly strong to overcome the presumption in section 15 of the RTOA. The driver's evidence of what he drank must be verified by commissioning a toxicology report from a qualified expert.

We would normally call upon the services of a respected and experienced forensic toxicologist to compile a report based on the facts in your case.

This report will show what the effect of the post-incident drinking had on the specimen reading. The expert will calculate the rate at which the your body processed the alcohol that was consumed. The expert must be provided with accurate information on the following, if a worthwhile report is to be compiled.

· How much you drank after the incident

· The alcohol content of what you had to drink

· The time of the post-incident drinking, and the period over which you drank

· Height, weight, age and sex of accused

If a driver had nothing to drink before the incident (that is, he only drank afterwards), the defence would have to lead evidence of this fact. If a driver drank before the incident and had a post-incident drink, the defence would have to lead evidence that any pre-incident drinking did not put him over the legal limit. The defence should ask the toxicologist to calculate what the specimen reading would have been on the basis of the driver's pre-incident drink.

The prosecution may use an expert toxicology report to show that, even if the post-incident drinking is discounted, the driver would still have been over the limit when he was driving or in charge of the vehicle. Remember, section 15 of the RTOA contains a presumption that the level of alcohol in the specimen was at least the same as the level of alcohol in the driver's breath, blood or urine when he was driving or in charge of the vehicle. It therefore allows for the possibility that the level could have been higher than the level in the specimen.

This is a difficult defence to establish and it requires expertise not just from the toxicologist but from the solicitor conducting the case. A great deal of case law exists in this area and it is a legal minefield for the uninitiated and even for many experienced solicitors .