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. Failing To Provide Driver Details

This is a complex and serious area of law therefore we offer FREE online advice in relation to such cases. It is very easy to end up in jail charged with attempting t pervert the course of justice. please don't take advice from your mate down the pub who tells you just to "name the wife"

Do I need to tell the police I was driving? Tends to be a common question and the answer is yes. Section 172 of The Road Traffic Act makes a pretty good job of ensuring that the registered keeper does require to give the name of the driver. Get legal advice from a firm that is recommended to you or do some online research and seek out a specialist firm.

You are not expected to be super human and would not be expected to perform some miracle of memory for the police. This situation usually arises when you have received a Notice of Intention to Prosecute within 14 days of an alleged offence. You are REQUIRED to provide information to identify the driver.

What if I just say my wife or work colleague was driving?, I hear you ask. DON'T!

This is called attempting to pervert the course of justice and people go to jail for it. EVEN 1st offenders.

But how would the police ever know? If you say someone else was driving the police are entitled to ask you for proof that, the person using your vehicle was insured to drive your vehicle. They may also have a photograph from the speed detection device that shows who was driving. If the photograph shows you then you should be VERY concerned. If you want to read more about the right of silence point just check the leading case of

O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM

Get a lawyer as soon as you believe you have been flashed or if have been stopped by the police, get advice early they may still be able to save your licence from points. In a perfectly legal way!

S172 procedure

What is it, what it means, how it affects you?

Offences requiring notification of prosecution.

Under Section 1 of the Road Traffic Offenders Act 1988 there are various road traffic offences which require the police to give you notice of the fact that you may be prosecuted. These offences include:

Dangerous Driving

Careless & Inconsiderate driving

Leaving a vehicle in a dangerous place

Dangerous cycling

Careless & Inconsiderate cycling

Failing to conform with the indication of a police officer when directing traffic

Failing to comply with a traffic sign

Exceeding temporary speed restrictions imposed by s 14 of the Road Traffic Regulation Act 1984

Exceeding speed restrictions on a special road

Exceeding temporary speed limit imposed by order

Speeding offences generally

Methods of notice of possible prosecution given.

As far as alerting persons to any alleged offence, notice can be given by different means. It can be done by way of a summons served on the offender within 14 days of commission of the offence or by a notice of intended prosecution (NIP). The NIP can either be given verbally at the time of the incident or in writing (i.e. if you get a ticket from a speed camera) and must be received within 14 days of the offence (or dispatched so that it would reach the driver within the 14 days within the ordinary course of the post). Service of a notice at the last known address of the accused will suffice for good service. No notice is required if a full or provisional fixed penalty notice has been given or fixed (under the Provisions of the Road Traffic Offenders Act 1988) or if there is an accident involving the vehicle in question (of which the driver is aware).

Notice of Intended Prosecution.

So what exactly is a written NIP? In essence it is a document that specifies the nature of the offence and the time and place it is alleged to have been committed. It requires the keeper to provide the police with the name of the person who was driving the vehicle at the time of the alleged motoring offence. Providing this information is a legal obligation under Section 172 of the Road Traffic Act 1988 (RTA). If the keeper is uncertain who was driving their vehicle they may still guilty of an offence unless they either provide the name of the driver or a list of possible drivers. Failure to provide the relevant information may result in prosecution and the punishment could be worse than for the speeding offence. Certain exceptions do apply however where it can be shown that the keeper did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was (S172.4).

When it is best not to provide details of the driver

Essentially, if you do not inform the authorities who was driving you cannot be prosecuted for the offence. In effect this means that you can only be prosecuted for NOT informing the authorities who was driving your vehicle, an offence which attracts a maximum penalty of 6 points and £1000 fine. With that in mind an instance where it may be in the keepers best interest to abstain from supplying any details to the police (and essentially contravene s172) would be where the keeper of the vehicle committed a dangerous driving offence by, for example, driving at speeds in excess of 100mph. Dangerous driving offences carry much harsher penalties, namely a minimum 12 month driving ban and up to 6 months imprisonment, and as a result it may be wiser in these type of cases to opt for the less onerous penalties incurred for a s172 contravention.

NIP and Limited Companies

A NIP can also be issued to limited companies and the requirement of disclosure is is also obligatory. The Road Traffic Act 1991 Section 21 (2) requires the keeper of the vehicle to identify the driver. Subsection (3) makes it an offence for the keeper to fail to comply. Subsection (4) provides a defence if the Keeper shows that he did not know who the driver was and could not have found out by using "reasonable diligence". However under Subsection (6) the company must prove that as well as not being able to identify the driver using 'reasonable diligence' it must show that it did not keep a record of who was driving the vehicle and that the failure to keep such records was reasonable. This is an onerous test to pass as it is generally fairly easy for a company to have a system in place which identifies the driver of a company vehicle at any given time, for example a log book kept in the vehicle which allows any drivers to enter the details of his or her journey. If the company did have such a system but it didn't work on a particular occasion that might suffice as a defence.

Management Personal Responsibility

As far as management responsibility is concerned subsection (5) of the act says that where a director or senior manager of the company caused or connived with the failure to identify the driver, that person is also guilty. Most contraventions involving company vehicles result in the company being fined however there are instances where directors can also have points endorsed on their licence. In relation to s172, in general most police forces prosecute the company and not the Directors for failing to identify the driver as this leads to a conviction and fine without any effort. Additionally it may not be in the best interest of the court to prosecute Directors (solely to get points put on a licence).

General Speeding Penalties

As far as penalties for general speeding are concerned, if a guilty plea is submitted early on there is normally a fixed penalty of 3 points and a £60 fine. Fines on conviction are worked out in terms of your weekly wage after tax and national insurance. Depending on the severity of the speeding offence these fines can range from 25 to 175% of your net wage and are subject to a maximum fine of £1,000 if the offence is committed on roads other than a motorway and £2,500 if the offence occurs on a motorway. Points on conviction range from 3-6 while disqualification periods range from zero up to 56 days. Compulsory re-testing is another penalty the courts can impose in certain cases. In particular circumstances, driving at speeds lower than the legal limit may also result in prosecution for other offences, for example dangerous driving or driving without due care and attention when the speed is inappropriate and inherently unsafe.

Right to Silence

In relation to the controversial 'right to silence' argument, the ECHR verdict in (o'halloran and francis) enable the British Government to continue to force motorists to incriminate themselves using S172 of the Road Traffic Act, which is almost always the only evidence of the driver's identity in speed camera cases