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  2. The ‘Hip Flask’ Defence – Post Driving Consumption

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    Our team of specialist solicitors have spent years fine-tuning post driving consumption defences to ensure that we give client’s the best chance of avoiding drink driving convictions. It is this attention to detail that has allowed us to develop into the country’s leading, family-run motoring defence practice.

    What is the “hip flask” defence?

    • If you consume alcohol after driving a vehicle, and it was this amount that placed you over the prescribed limit, you can raise the ‘hip flask’ defence. If successful, you would not be convicted.

    For those who do not wish to read the full booklet, we have summarised the most important aspects of the defence below. If you have been charged with drink driving, we would strongly advise that you contact our team of specialist solicitors, who will be able to outline your options and discuss a defence strategy unique to your case.

    What you need to know

    • Post Driving Consumption is a full statutory defence to an allegation of drink driving. If successful, the court will not convict you.
    • The burden of proof falls on you to establish – on a balance of probabilities – that you consumed alcohol after driving and before the test. You must also show that it was this alcohol that placed you over the legal limit.
    • You may need to instruct an expert witness to produce a BAC calculation (blood alcohol concentration). M.A.J. Law work closely with independent expert witnesses, toxicologists and forensic scientists who can provide evidence to strengthen your defence.
    • You may not be charged straight away. Those who raise this defence will often be bailed back to the police station. This is a crucial period of time that needs to be properly considered.
    • If the defence is not successful, we could enter a ‘basis of plea’, often resulting in a substantially reduced period of disqualification. To find out more about a ‘basis of plea’, please contact a member of our team.

    Post Driving Consumption – Introduction

    The police are only entitled to rely on the evidential breath test results at the police station. The roadside result is non-evidential. But the police station breath test will often take place over an hour after your arrest. This means that the level of alcohol in your body at the time of your test is unlikely to be the same as it was when you drove the vehicle, it may even be higher. So how do the police prove that you were over the limit at the time your drove?

    Section 15 of the Road Traffic Offenders Act 1988 creates a legal presumption that the level of alcohol found in the evidential sample at the police station was the same as it was at the time of driving. In other words, the police don’t have to prove that the level of alcohol in your body exceeded the prescribed limit at the time you drove, only that it exceeded the prescribed limit at the time of the evidential test!

    This sounds extremely unfair, but prevents the police having to conduct a BAC calculation in every case to try and determine the exact level of alcohol at the time of driving, as this would be time-consuming and extremely expensive!

    However, this statutory presumption will not apply if the accused can prove:

    • that he consumed alcohol after he had ceased to drive, and;
    • that had he not done so the proportion of alcohol in his breath would not have exceeded the prescribed limit
    1. that he consumed alcohol before he provided the specimen

      This part of the test is factual. It is for the defendant to establish, on a balance of probabilities, that he consumed alcohol after driving but before the evidential test. The most common scenario is where the defendant consumes alcohol in an attempt to calm his nerves following a road traffic collision – but there is no restriction or criteria for this defence. Providing we can present a convincing and plausible explanation as to why alcohol was consumed, this test should not cause too much difficulty.

    2. that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit

      This part of the test usually involves expert evidence. The courts have decided that the burden of proof is on the defendant to prove that the post-driving consumption of alcohol had been responsible for placing him over the limit.

      M.A.J. Law work closely with expert witnesses and forensic toxicologists who are authorised to produce reports for use in court. The purpose of the report is to determine whether the defendant’s breath test results are consistent with the recollected alcohol intake. It is not enough to prove that you would have been under the legal limit at the time you drove, you must also prove that the breath result was consistent with the entire alcohol intake.

    Have you been bailed back to the police station?

    There is a tendency for people on police bail to wait and see if they’ll be charged by the police before instructing a solicitor. This is never advisable because the police can bail you to court as soon as they’ve decided to charge you. In some cases – the following day. This leaves little time to prepare for the hearing or identify the potential defence strategy. M.A.J. Law offer a ‘stand-by’ service, allowing us to act on a provisional basis and ensure that we’re fully prepared if the worst does happen

    The MGDDD document – Technical Defence Enquiry

    The most common reason for police bail in ‘hip flask’ cases is to give the police an opportunity to conduct a back calculation. As mentioned previously, the legal presumption (that the level of alcohol in your breath was the same as it was when you drove) will not apply if the defendant can prove post driving consumption.

    Providing you actually told the police that you had drank alcohol after driving, an MGDDD document should have been completed with you, usually in an interview. This booklet aims to document your entire food and drink intake over the 24 hours leading up to the test. You will know if the police carried out this procedure because they will have asked you for your weight, age and height etc… (the police may even have scales in the interview room!). This information is then handed to an expert who will produce a BAC calculation report. If the report is favourable (in that it supports your alcohol consumption account), the police may be persuaded not to charge you (but in most cases will do anyway). If the report is unfavourable, the police will charge you.

    When challenging the results provided by a prosecution expert, M.A.J. Law will need to consider the exact method of calculation, as well as the figures used to calculate. A prosecution expert will never give an exact figure or result, they often use ranges (as they appreciate that body types and elimination rates vary). If the range used by the expert also falls under the legal limit, we have a very strong argument that the case should fail.

    Click the icon below to read our latest testimonials

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    Or call a member of our team on 01514228020

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  5. Drink Driving Sentencing Guidelines

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    The Magistrates’ Court Sentencing Guidelines

    If you are convicted of a criminal offence in England or Wales, your sentence will depend on a number of factors, including the type, seriousness and circumstances of the crime. It is crucial that your defence solicitor knows the Magistrates’ Court Sentencing Guidelines ‘inside-out’ in order to safeguard your position and ensure that the magistrates impose the most lenient penalty.

    Please be aware that nearly all drink driving offences start in the same way – with a charge and a date for court. This does not make you guilty of the offence. If you have mistakenly assumed that your only option is to plead guilty and accept the mandatory driving ban that applies, please get in touch so that our drink driving solicitors can guide you through your options completely free of charge. Any potential disqualification will not be affected by the timing of a guilty plea. This means that the disqualification will not increase even if you are convicted at a later date.

    When passing sentence, the judge or magistrate will consider:

    • The seriousness of the crime
    • If you have any relevant previous convictions
    • Whether any aggravating or mitigating circumstances exist.

     Drink Driving Sentences

    The magistrates will take into account guidelines issued to them when deciding what penalty to impose. These help to achieve consistency when sentencing. You can find a copy of the Magistrates’ Court Sentencing Guidelines towards the bottom of this booklet. This is the starting point when considering what penalty will be imposed.

    There are two crucial parts to the Magistrates’ Court Sentencing Guidelines that need to be considered. Both parts will be imposed if convicted. These are:

    • The punitive element

    The punitive element of the offence is the fine, community order or custodial sentence. These penalties are affected by the timing of a guilty plea, meaning that you would receive a greater discount if you entered a guilty plea at the earliest opportunity (usually on the first court date before seeing the evidence). This credit is gradually reduced as the case progresses.

    • The ancillary order

    This relates to the disqualification. You may be pleased to hear that an ancillary order is not affected by the timing of a guilty plea. This means that the disqualification will not increase even if convicted at a later date.

    Consider the excerpt below from the Magistrates’ Court Sentencing Guidelines.

    The Council guidelines Reduction in Sentence for a Guilty Plea, revised 2007, states that the punitive elements of the sentence should be reduced to recognise an offender’s guilty plea. The reduction has no impact on the sentencing guidelines in relation to ancillary orders, including disqualification. The level of the reduction should reflect the stage at which the offender indicated a willingness to admit guilty and will be gauged on a sliding scale, ranging from a recommended one third (where the guilty plea was entered at the first reasonable opportunity), reducing to a recommended one quarter (where a trial date has been set) and to a recommended one tench (for a guilty plea at the ‘door of the court’ or after the trial has begun). There is a presumption that the recommended reduction will be given unless there are good reasons for a lower amount.

    M.A.J. Law have defended countless drink driving cases over the years. Our solicitors believe that there is no real benefit in pleading guilty at the first court hearing. Consider for yourself what you have to gain or lose. If you plead guilty at the first hearing you will receive a immediate lengthy disqualification. This is likely to remain the same whenever you decide to plead guilty (if at all). The Sentencing Council, above, state that any reduction for a guilty plea does not apply to a disqualification.

    As to the level of fine, this is based on income. The fine rarely exceeds £600.00. Even if your plea of guilty was entered at such a late date that you only received a 10% discount, this would save you around £150.00. Not much of a benefit if you are then banned for a substantial period.

    Our team believe that anyone facing a long ban (or worse) should never plead guilty before attending court for a trial. By attending court for a trial you force the CPS to prepare its case for court and arrange witnesses to attend court to give evidence (including the officer conducting the breath test). Time and time again the CPS will fail to attend court with key prosecution witnesses. No witness means no evidence.

    Aggravating or mitigating circumstances

    Your sentence may also be affected by the existence of any ‘aggravating’ or ‘mitigating’ circumstances. An aggravating circumstance is something that makes a crime more serious. For example, in a drink driving case, an aggravating factor might include:

    • A collision
    • Not having an insurance policy in place at the time
    • Having a child in the vehicle
    • Driving otherwise than in accordance with a licence
    • Evidence of poor driving
    • A police chase.

    A mitigating circumstance is something that makes a crime less serious. A mitigating factor might include:

    • A clean driver’s licence
    • Evidence of self-rehabilitation (e.g. attendance at AA meetings)
    • No previous convictions
    • Remorse for the offence committed.

    Prison and Community Service

    Prison is always a last resort. Having said that, a solicitor can never guarantee that the court will not impose a custodial sentence. If you think that your case surpasses the custody threshold, the only way to guarantee that you will not go to prison is to avoid a conviction.

    A community order may be more likely. Below are a list of the most common community orders:

    • Unpaid work requirement
    • Activity requirement
    • Programme requirement
    • Prohibited activity requirement
    • Curfew requirement
    • Exclusion requirement
    • Residence requirement
    • Mental health treatment requirement
    • Drug rehabilitation requirement
    • Alcohol treatment requirement
    • Supervision requirement
    • Attendance centre requirement.

    Please note that the court will impose a disqualification alongside your community order. This means that you will have to rely on friends, family or public transport to travel to the specific locations. If you fail to attend an appointment, or turn up late, it is likely you will be brought back in front of the magistrates who will then impose a more severe penalty (such as prison, for example).

    The Drink Drive Rehabilitation Course

    If convicted (even after a trial), you are likely to be offered the opportunity to attend the Drink Driving Rehabilitation Course. This will reduce the period of disqualification by 25% (one quarter). Make sure you book and attend the course by the date specified by the court. The course is voluntary and can cost in the region of £350.00.

    Drink Driving Sentencing Guidelines

    Below are the sentencing guidelines for the most common driving offences:

    Drink Driving / Driving with Excess Alcohol

    Breath alcohol level (mg) Blood alcohol level (ml) Urine alcohol level (ml) Starting point Range Disqualification (first offence) Disqualification (2nd offence in 10 years)
    36 – 59 81 – 137 108 – 183 Band C fine Band C fine 12 – 16 months 36 – 40 months
    60 – 89 138 – 206 184 – 274 Band C fine band C fine 17 – 22 months 36 – 46 months
    90 – 119 207 – 275 275 – 366 Medium level community order Low level community order – high level community order 23 – 28 months 36 – 52 months
    120 – 150 and above 276 – 345 and above 367 – 459 and above 12 weeks custody High level community order to 26 weeks custody 29 – 36 months 36 – 60 months

    Failing to Provide a Specimen for Analysis

    (driving/attempting to drive)

    Examples of nature of activity Starting point Range Disqualification (first offence) Disqualification (2nd offence in 10 years)
    Defendant refused test when had honestly held but unreasonable excuse Band C fine Band C fine 12 – 16 months 36 – 40 months
    Deliberate refusal or deliberate failure Low level community order Band C fine to high level community order 17 – 28 months 36 – 52 months
    Deliberate refusal or deliberate failure where evidence of serious impairment 12 weeks custody High level community order to 26 weeks custody 29 – 36 months 36 – 60 months

    Failing to Provide a Specimen for Analysis

    (in charge of a vehicle)

    Examples of nature of activity Starting point Range
    Defendant refused test when had honestly held but unreasonable excuse Band B fine Band B fine 10 points
    Deliberate refusal or deliberate failure Band C fine Band C fine to medium level community order

    Consider disqualification OR 10 points

    Deliberate refusal or deliberate failure where evidence of serious impairment Medium level community order Low level community order to 6 weeks custody

    Disqualify 6 -12 months

    Unfit Through Drink

    (driving / attempting to drive)

    Examples of nature of activity Starting point Range Disqualification (first offence) Disqualification (2nd offence in 10 years)
    Evidence of moderate level of impairment and no aggravating factors Band C fine Band C fine 12 – 16 months 36 – 40 months
    Evidence of moderate level of impairment and presence of one or more aggravating factors listed below Band C fine Band C fine 17 – 22 months 36 – 46 months
    Evidence of high level of impairment and no aggravating factors Medium level community order Low level community order to high level community order 23 – 28 months 36 – 52 months
    Evidence of high level of impairment and presence of one or more aggravating factors listed below 12 weeks custody High level community order to 26 weeks custody 29 – 36 months 36 – 60 months

    Unfit Through Drink

    (in charge of a vehicle)

    Examples of nature of activity Starting point Range
    Evidence of moderate level of impairment and no aggravating factors Band B fine Band B fine 10 points
    Evidence of moderate level of impairment and presence of one or more aggravating factors listed below Band B fine Band B fine 10 points or consider disqualification
    Evidence of high level of impairment and no aggravating factors Band C fine Band C fine to medium level community order

    10 points or consider disqualification

    Evidence of high level of impairment and presence of one or more aggravating factors listed below High level community order Medium level community order to 12 weeks custody

    Consider disqualification OR 10 points

  6. MH

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  7. AA

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  8. Thomas

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  9. Linda

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  10. Nick

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