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  3. 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

  4. RV

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  5. Drink Driving – Your First Court Hearing

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    What will happen at your first court hearing?

    If you have been charged with drink driving, you may think that your only option is to plead guilty. Blowing over the limit does not mean that a guilty plea must be entered.


     

    • A common mistake made by those charged with a drink driving offence is to accept the evidence for ‘face value’. Consider the following:
    • You may receive a correctly completed MGDDA document from the CPS. Does this mean that the form was completed contemporaneously at the time of the evidential procedure, particularly if you can’t remember it? Could it have been completed afterwards?
    • You may have received a printout from the police detailing the breath readings you provided. How do you know the data is accurate? Was the machine correctly calibrated?
    • An officer’s witness statement may say that you failed to provide a specimen without reasonable excuse. How can we be certain the mouthpiece wasn’t defective? Do you know for certain that you don’t have a defence?
    • The Case Summary, usually provided on the first court date, may say that the procedure was conducted correctly, inline with the MGDDA document. You can plead guilty based on this information if you wish, but a Case Summary is not evidence. How do you know the evidence exists? 

    Can I ‘go it alone’?

    It is unlikely that you will receive legal aid for a drink driving / failing to provide case. This means that you are having to pay privately for representation. Is it advisable to attend the first court hearing alone to save money?

    In short, no. Whilst this is an option, it is never advisable to attend a drink driving court hearing without a specialist solicitor. There are a number of reasons for this:

    • Check the evidence. A specialist solicitor can consider the evidence provided at the first court hearing in detail. If there is fault with the evidence against you, your solicitor can place pressure on the CPS to drop the case.
    • Safeguard your position. A prosecutor may take advantage of an ‘unrepresented defendant’. Your solicitor must understand the law relating to drink driving procedure, disclosure and, if required, be in a position to ‘out-manoeuvre’ the prosecutor with a technical legal argument. Our solicitors only deal with motoring offences.
    • The early identification of issues. Before setting a date for trial, the court will require the defence to identify the ‘issues in dispute’. Generally, these are the facts of the prosecution’s case that we don’t agree with. There is a real danger that a ‘lay’ person would overlook an important issue or simply fail to raise one. If this were to happen, the court may refuse to set a date for trial (meaning you may have to return to court for a ‘case management hearing’).
    • Building the foundations. Once the foundations of your defence are established, it can be very difficult for the CPS to ‘disprove’ them. We must always take a calculated, strategic and balanced approach to case management. If we raise too many issues with the prosecution’s case, we risk being criticised for partaking in a ‘fishing expedition’. On the other hand, if we fail to identify an issue we then seek to rely on, the court may prevent us from doing so. This is a decision best left to a specialist.
    • Witnesses. The only way the CPS can prove its case is with the use of evidence. Evidence is usually introduced by way of a witness statement. On the first court date the defence will be expected to confirm what witness statements we can ‘agree’ and what witness statements we contest. If we contest a statement, the person who produced it will be required to attend trial to give live evidence. If we agree it, the statement can simply be read out (and its contents cannot be challenged). This will always be a fundamental part of our overall defence strategy and, if dealt with correctly, can cause the CPS huge difficulties. Time limits will also apply to witness statements.
    • Court directions. The court will likely set a number of important directions following a not-guilty plea. For example, if your defence involves medical evidence or post driving consumption, the court may direct that expert evidence be served within 28 days. Court directions can be a useful tool to the defence, exposing the prosecution’s pressurepoints and giving us greater leverage when they inevitably fail to comply. Your solicitor should always apply for the most appropriate directions.

    Will you see the evidence against you before the first court hearing?

    As unfair as it sounds, you are not entitled to see any of the evidence against you until the first court date. In fact, even on the first court date, you’ll probably only see about 20% of it. The CPS will then expect you to plead guilty based on this ‘evidence’!

    Due to the complexities surrounding a drink driving case, there is a considerable amount of documentary evidence that will exist (usually in excess of 150 pages).

    In a drink driving breath (or failing to provide) case, I would usually expect the evidence to include:

    • MG4 Charge Sheet
    • MG5 Case Summary
    • The MGDDA document
    • CCTV of the breath test procedure
    • Witness statements from all CPS witnesses
    • Breath test printout (in breath cases only)
    • Calibration data/records
    • Training certificate
    • Pocket Notebook entries
    • A PNC Record (showing previous convictions)

      If your case involves blood or urine, you can also add the following to the list above:

    • The MGDDB document
    • The HO/RT/5 Form (in blood cases only)
    • The MG22(b) Streamlined Forensic Toxicology Report
    • Continuity Statements
    • Analytical Data Pack

    However, in most cases, the CPS will only disclose:

    • MG4 Charge Shee
    • MG5 Case Summary
    • PNC Record

    The only realistic way of gaining access to all the evidence in the case is by entering a notguilty plea on the first court date. The CPS should then provide the evidence within 28 days. In 90% of drink driving cases that M.A.J. Law challenge, the CPS will fail to serve the evidence within this time frame. We can then raise technical legal arguments and relevant case law in an attempt to secure your acquittal.

    A not-guilty plea – what are the risks?

    It’s a question that can play on the mind of any person considering their options. Our team at M.A.J. Law are usually asked one of the following:

    • Will I be worse off if I plead not guilty and I’m then convicted?
    • Will the court not ‘throw the book at me’ for pleading not-guilty?
    • Can I go to prison if I plead not-guilty?
    • Is my mitigation going to be less effective if I’ve pleaded not-guilty?

    We have addressed the questions above in a separate booklet:


     

    The Magistrates’ Court Sentencing Guidelines:

    What you need to know

    Drink driving solicitor court hearings


    In short, the length of disqualification imposed by the court will always remain the same (as it is based on the breath reading provided or, if you failed to provide, your level of impairment at the time of the test). This means that even if you are convicted after a trial (after seeing all the evidence – hopefully!), you will still receive the same length of disqualification as you would if you pleaded guilty on the first court date (before seeing any of the evidence against you). Of course, if we can win the case, then no penalty will be imposed.

    Worried about cost?

    M.A.J. Law specialise in defending drink and drug driving cases. Our solicitors are happy to outline our costs over the phone. We are pleased to confirm that we work on a fixed fee basis, thus ensuring that any legal costs are kept to a minimum. In fact, many of those who contact us to discuss their cases will often express surprise and delight about our fixed fee pricing structure. To find out more, visit our dedicated Pricing Page.

  6. TD

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  7. Spent Convictions for Motoring Offences

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    How long do I need to declare my conviction?

    All convictions will eventually become spent, with the exception of prison sentences over 30 months. Once the conviction becomes spent, you will not need to disclose it to employers, insurers etc. An employer cannot refuse to employ someone (or dismiss someone) because he or she has a spent caution or conviction.

    The Rehabilitation of Offenders Act 1974 allows certain convictions to become ‘spent’ after a specified period of time (the rehabilitation period). Rehabilitation periods for the most minor sentences, (e.g. cautions, disqualifications, fines) begin from the date of conviction. However, for convictions resulting in a community sentence or custodial sentence, the rehabilitation period (or ‘buffer’ period) will start from the end of the entire sentence (not at the point of release from prison).

    The following table sets out the rehabilitation period for sentences that do not have buffer periods. The rehabilitation period starts on the date of conviction:

     

    Sentence Adults (18 & over) Youths (18 & over)
    Fine 12 months 6 months
    License Endorsement 5 years 2.5 years
    Driving disqualification Last day of ban Last day of ban

     

    For example, if an adult was convicted of drink driving and disqualified for 12 months the longest rehabilitation period always applies. This means that the total rehabilitation period would be five years (this period will apply to all driving disqualifications under 5 years).

     

    What happens if I get another caution or conviction before my first conviction becomes spent?

    If you are convicted again for a drink driving offence (or other summary offence), neither rehabilitation period will be affected. The conviction for the earlier offence will become spent at the time originally fixed, and the conviction for the later offence will become spent after the normal period.

     

    Driving conviction codes – how long does a conviction stay on my licence?

    A drink driving conviction will remain on your licence for a period of up to 11 years from the date of conviction. The exact period of disqualification will depend on the individual offence:

     

    Offence Period on license
    DR10 – Drive or attempt to drive with excess alcohol 11 years
    DR40 – In Charge of a vehicle with excess alcohol 4 years
    DG10 – Drive or attempt to drive with drug level above specified limit 11 years
    DR20, DR80 – Drive or attempt to drive while unfit through drink or drugs 11 years
    DR50, DR90 – In charge of a vehicle while unfit through drink or drugs 4 years
    DR30 – Failing to provide a specimen of analysis while driving or attempting to drive a vehicle 11 years
    DR60 – Failing to provide a specimen for analysis while in charge of a vehicle 4 years
    DR70 – Failing to co-operate with a preliminary roadside breath test 4 years

    Need free advice?

    M.A.J. Law offer free no-obligation legal advice over the phone. We never try and ‘sell’ our service or persuade you to instruct us, we simply inform you of all your options and the likely penalty if convicted.

     


    To discuss your options with a member of our team, please call

    0151 422 8020

    or request a call back by visiting our website

    www.drinkdrivingsolicitor.co.uk


     

     

  8. DB

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  9. CC

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