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.

For More Information on How the scheme works and where the courses are held, checkout the Vernon Mansfield website. 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 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 .Drink driving, drunk in charge, failing to stop. We can help provide peace of mind. We guarantee prompt response to your e-mail, texts, phone calls. We use the net, not just to promote our service but to keep in touch with you and to deliver information and results. We have a vast experience in representing people from all walks of life faced with a drink driving charge.

Drink Driving ruins lives- We do not condone it and nor do our clients but we do our best for those who come to us for help. Find out About Us.
Mistake 1- Assuming The Case Is A Loser

When that intoximeter has printed out the reading of more than 35ug your heart sinks as you realise the consequences of the result. It is at this stage that some people just throw in the towel. The police officer may have explained that the roadside test wasn't reliable but nobody is suggesting that THIS machine has got it wrong. You may be left in a cell for the next few hours then handed a slip of paper and told to be in court or face arrest.

However the breath test, the alcohol blood level test, the alcohol urine test and the roadside tests all have potential pitfalls. It may be in the method of use, the procedures not being followed as they should be or it may be simple operator error. Whatever the problem a good defence team needs to find it and exploit it to win the case. Winning or losing a road traffic case comes down to the lawyers determination to investigate every angle and fight every legal argument.

Did you know that the results of a breath test can be challenged. The Log Book detailing all tests that day can be examined by the defence to check for signs of flaws or tampering. The service record for months before and after the test can be examined. Experts can be instructed to check the analysis machine itself and checks can be made reading the police procedures at time of testing. We have even had experience of an entry that had been "tippexed" then changed. We are not advocating a "Fishing expedition" but when our clients challenge the accuracy of a reading then they can expect that no stone will be left unturned.

The cost of defending such a case can be considerable and we can tell you that it will undoubtedly run into thousands of pounds however with so much at stake it can be worth investing that money in your defence.

Think how much could be saved over the term of any ban. Not just the inconvenience of not having a licence but all that depends upon it, job, mortgage, relationships etc. Of course it is more costly to defend a case than to plead guilty at the outset but this is because of all the extra work and court time that will be involved. We are often asked if pleading not guilty will attract a higher sentence if convicted and the answer is no. You are entitled to defend your case but what you must be aware of is that the court will not punish you for taking a case to trial but they will reward you for tendering an early plea. That reward does not mean that they will reduce a mandatory minimum period of ban but may mean that the fine imposed is less than it would have been.

Hire the best and in our view that means getting a specialist lawyer on board as soon as possible.

Mistake 2- Assuming The Police Always Get It Right

* the correct sample procedure was not followed.

* the results indicate that the device was not properly calibrated

* your breath sample was interrupted e.g. sickness

* you had something in your mouth, such as chewing gum, tobacco etc.

* you were on a special diet.

* you have diabetes, asthma, other relevant medical condition.

* you have ill fitting dentures.

* you had close contact in a confined space with paint or solvents.

* you have to take medicine on a regular basis.

* an alcohol antiseptic was used when blood was drawn.

* an alcohol antiseptic was used by you when washing

By not contesting the evidence you don't get to question the arresting officers. You will not be entitled to say that you accept that the results are partially correct but that they do not accurately reflect what you had to drink. You would therefore accept whatever the reading was and accept that all procedures were followed properly.

Plead not guilty and a trial is set where the defence will get the chance to interview the police officers and examine the physical productions ALL before you attend court. You will then have the opportunity to attack the results on the grounds that the technical rules weren't followed. If your lawyer considers that all procedures were followed and that there is no technical defence then the lawyer can have the case brought forward to tender a guilty plea and secure any sentence reduction for an early plea.
Mistake 3-Assuming The Breath Analysis Machine Is Infallible

Wrong. I can't think of a machine that hasn't broken down sometime! All the defence require to do is show the Sheriff that there is room for a "reasonable doubt" regarding the reliability of the machine and your licence is saved.

Laymen and even lawyers are sometimes guilty of failing to read the piece of legislation that the case relates too. The law in relation to drink driving cases, of course requires to be fully understood however all the statutes and the regulations governing the use of technical equipment requires to be read and understood. The lawyer needs to know what is and what is not admissible evidence-This is not always easy and again experience tends to be the key to success.

Those that don't know the laws and regulations don't realise that violations of the rules introduce into evidence matters that can be suppressed from the trial on the grounds of fairness to the accused.

Since the intoximeter devices are "type approved" there is now a statutory presumption that they are reliable and that they work properly. Therefore to defend such a case you need to get copies of the various logs, maintenance records, printout of sample taken etc. This is not easy as the Crown will refuse to provide these documents if they consider that this is a "Fishing expedition" where the defence are just looking for some kind of get out!

My own view is that we should be entitled to obtain all such documents, even if it were a so called "fishing expedition" since this is how we the public have any chance of establishing that the correct procedures and proper working equipment has been used. Sadly, it has been known for lawyers and unrepresented parties to just have the complaint and the arrest report, this again emphasises the need for an experienced court solicitor to be instructed from the outset.
Mistake 4- Not Objecting To Evidence

If you do not know the law in relation to what and how evidence is should be led, how can you possibly tender a proper and timeous objection? If you don't get this right you can easily be convicted before you realise the error of your ways.

Mistake 5- Not Personally Checking Out The Arrest Location

The lawyers call this a locus attendance. Many people don't visit the arrest location. This can be crucial. In road traffic offences we often go to the scene with our clients to take relevant photographs, video and draft diagrams. With the advent of Google Maps we now find that printing off some satellite photographs can also assist the case preparation. Police officers are often trained to refer to the "off side" or the "nearside" when describing the vehicle and position in relation to the offence, the accused might say left or right and another witness might say East and West. Thats why we always have Maps, Photographs and diagrams. It makes sense of all the left, right, nearside, offside, middle and don't knows that we will have to deal with at the trial. Drunk in charge cases can sometimes involve a piece of land where the public do not have any right of access but this might only become plain once the area is visited. We tend to video the location for most cases. We had one case where our client was found intoxicated in his vehicle in a private field. The Crown allegation was that our client must have been drunk in charge of his vehicle to get into the field in the first place! What they didn't know was that he had driven his friends to meet a helicopter in this field and when the helicopter returned later that evening (Much the worse for wear) he didn't feel inclined to walk home so he slept in his car, dropped off in the field by a helicopter.

Roadside Tests involving walking a straight line and the like are becoming increasingly used in Scotland. Seeing and knowing the locus allows you to bring better cross examination to court as you can test witnesses on true conditions that existed. e.g. sloping, ill lit roadside that is very busy with traffic.....it may be reasonable not to be walking on the kerb? These things makes it much easier for your lawyer to understand and more importantly the Sheriff to understand your concerns about any roadside test, and, in some cases, point out a physical impossibility to the Sheriff. We had one case where the police officer admitted that he requested our client to walk a straight line inches away from a dual carriageway. Needless to say the Sheriff wasn't too impressed by this and threw the case out.

Mistake 6- Not Questioning Subjective Test Procedures

At the very least, the ACPO Guidelines and the police training document should be studied by you or your lawyer. He or she will then know exactly what questions to ask the arresting officer to see if he completely followed the recommended method. We understand that in England police officers are provided with a pro forma document to follow but in Scotland the police rely upon their training and ACPO guidelines where appropriate.

You see, if the manual's directions weren't completely followed, the test's validity can be attacked. Clearly these manuals only provide a guideline. They are not the law and you may expect any Procurator Fiscal who is worth his salt to point out that they are MERELY guidelines. A good defence lawyer should be able to a lot of the fact that these guideline were written for a very good reason and that was to preserve the best available evidence for the court. If the Crown are now saying that doesn't matter then they are denigrating the responsibility of the judge or Sheriff. Successfully challenging such procedures therefore can win your case sometimes without the need for you to give evidence yourself.

The key to these tests tend to be how objective and reliable they are. Remember that in Scotland they are often of less importance as the officer can often come up with just about any old excuse to claim that he or she had a "reasonable excuse" to stop you and require a breath sample. Presently in Scotland a debate is going on regarding the extension of police powers to allow random stop and test procedures. Frankly, as an experienced criminal court practitioner (Like the Justice Minister!) I am aware that the police can and do stop people when they like. It is all too easy to come up with an excuse at a later stage.

Why bother with the manual or the ACPO guidelines if these are ONLY guidelines? Simple: if you or your lawyer doesn't know the training manual intimately then how can he cross examine effectively? How can he stop vital prosecution evidence from coming out. It is pretty hard to un-ring a bell.
Mistake 7- Not Explaining The Du Plooy Discount

Your lawyer should advise you about the sanctions resulting from a conviction as opposed to an early guilty plea. (The Du Plooy case)

Why are these important?

If you have previously been convicted for drink driving in the past ten years and you choose to go to trial with a very high reading and no real defence then expect incur the wrath of the Sheriff. A good experienced solicitor will always know when it would be appropriate to tender a plea, particularly if you are a border line jail case. It might just mean the difference between your liberty and several months in jail.

And this mistake can happen all to often if your lawyer is rushed or is a duty solicitor with very little time for each client. We have acted as Duty solicitor and we know how tough it is to get through maybe 30 to 40 cases in an afternoon. Recently Duty Solicitors in Glasgow have been dealing with even more than this number meaning that on average each client is likely to have approximately 2-3 minutes with the duty solicitor to prepare a plea in mitigation that could mean the difference between jail or freedom.

Mistake 7 Not Consulting A Specialist

Defence lawyers who are experts in Road Traffic Law say that someone who isn't a specialist should consult one. We have been consulted and have acted for fellow lawyers, police officers, relatives of judges and forensic scientists. Although these people have an intimate knowledge of our judicial system and criminal law in particular they still wanted a specialist.

Gone are the days when people had "a lawyer" someone who dealt with everything from their will to their conveyancing to setting up their business. Today people seek out the experience and know how of specialists because they are aware that in todays' world we are swamped with information and keeping abreast of all areas of law is simply impossible.

When I started out in law I specialised in Criminal Law. I was told by colleagues that there wouldn't be enough work to keep me fed and watered but I stuck with it and nowadays Criminal Law Specialists are all over Scotland.

In 2001 when I set up the first road traffic law website those same people told me road traffic law was too small an area of practise to specialise in. I have found the opposite to be true. It is an area that is constantly evolving and requires a more intimate knowledge of law, evidence and procedure than any other area I have been involved in. The challenges are constant, varied and incredibly interesting.

The benefits to me as a lawyer are that this area of law is well valued by the public and I find that I have seldom received any negative feedback regarding the value for money that we offer. Quite the opposite is true as you can see from our comments page.

If your lawyer is not a specialist in this area, you may not be getting the best advice and you may not have the strongest case.