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  1. Drink Driving – Identification & Forensic Evidence

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    Drink & Drug Driving

    • Breath test procedure

    • Identification

    • Forensic evidence

    A positive breath test, forensic evidence and a positive ID. Any chance of success? 

    My client was charged with three offences: driving with excess alcohol, failing to stop after an accident and failing to report an accident. My client’s car crashed into another vehicle. An eye witness apparently saw my client get out from the driver’s seat and run off. The witness called the police. My client was then arrested by the police about 15 minutes later in the location. He was breath tested and was over the limit.

    My client had some cuts and bruising to his face, consistent with an air bag explosion. The police spoke to the eye witness who gave a description of my client. The police seized the car in order to test the airbag for DNA. The logic, of course, is that if the DNA matched my client then it would prove he was the driver at the time of the crash.

    The police had a strong case. They had a positive breath test. They had an eye witness. They had forensic evidence. The police and CPS believed it was an open and shut case.

    I represented this client from start to finish. You can’t imagine the surprise expressed by the CPS at the first court hearing when my client pleaded not guilty to all charges. The CPS solicitor looked at me like I was as mad as my client!

    However, one thing I have learnt over the years is that it is vital to properly test the evidence. Just because the police or the CPS believe they have the evidence, it does not mean they have. Unless you accept the evidence and plead guilty, the CPS must prove the case based on accurate and reliable evidence to a standard beyond reasonable doubt.

    When the police and CPS believe they have the right person, especially in circumstances such as in this case, I often find that the police and CPS fail to do what they should. My defence comprised three main elements:

    • Accuracy of the breath test
    • Identification of the driver
    • Reliability of the forensic evidence

    Let me briefly take you through each element of my defence.

    ACCURACY OF THE BREATH TEST PROCEDURE 

    Most solicitors fail to properly challenge breath test evidence (probably because most solicitors are not experts on drink-drive law). There is a belief that if a positive breath sample has been obtained then there is nothing to challenge. This is not the way I work. I always challenge every aspect of the breath test procedure – and you’ll be surprised just how often I find mistakes with the evidence.

    Most people believe (including most solicitors) that if an intoxilyser printout has been obtained (from the breath test device) showing a reading over the limit then there is nothing to challenge. The printout must be right. Right?

    • Wrong. The printout, by itself cannot be used on its own in evidence.

    In every case, whilst completing a breath test, the police should complete a very detailed pro-forma known as the MGDDA document. This stands for Manual Guidance Drink Driving form A. It is about 25 pages long (A4 size) and details every aspect of the breath test procedure including all necessary questions, answers, warnings and requirements. There is a separate document, the MGDDB, for use when a blood or urine specimen is taken. The MGDDC document details any hospital procedure. The MGDDD document details any technical defence, such as a post driving consumption defence, where back calculations of alcohol should be made (and often fail to be completed correctly) by the police.

    The printout showing the result of the breath test should be attached to one of the pages within the MGDDA document. The printout will usually be signed by the completing officer and you, the motorist. The MGDDA document will be signed by the officer and any witness. Like the situation with an intoxilyser printout, the police and CPS believe that the MGDDA document can be used in evidence, as an exhibit. In every case I have dealt with the MGDDA (which includes the printout) is referred to within the Advance Disclosure (documents handed over at the first court hearing) as an exhibit. See the first entry on the “List of  Exhibits” in my client’s case:

    MGDDA Exhibit

    In actual fact, the MGDDA document and the breath test printout are not exhibits and cannot be presented in evidence as exhibits.

    Take a look at the guidance for CPS lawyers, taken from the CPS’s own website:

    Admissibility of the National Drink Pro Forma - Form MG.DD

    In the event of a not guilty plea to a summary drink/drive offence you should try to obtain a formal admission under Section 10 of the Criminal Justice Act 1967 as to the contents of the Form. Such an admission must include the name of the defendant, the date and place of the offence and the results of the breath test or of the laboratory test. If such an admission cannot be secured then the officers conducting or witnessing the sampling procedure will normally have to be called to give evidence in person.

    The Form MG DD contains assertions of fact, it is a document made out of court and is inadmissible under the hearsay rule. Section 9 of the Criminal Justice Act 1967 only permits that the evidence contained in a witness statement is admissible were the maker of it in the witness box. If the officer who filled out the Form were in the witness box he could not produce the Form in chief as an exhibit, though he could refer to it as a memory refreshing document. The production in evidence of that Form attached to a short Section 9 CJA statement will not render the content admissible.

    The only way in which the information contained on a Form MG DD can be produced in documentary form as admissible evidence is if that information is extracted from the form and incorporated into a Section 9 CJA statement made by the officer.

    The first paragraph reminds the CPS lawyer to try and get an admission from you. If you admit to something the CPS does not have to prove it! In my view, never admit to anything as far as the MGDDA form goes. You’d be amazed at the mistakes that can be made by the police.

    Read the second paragraph. Then read it again. It’s important. Most CPS lawyers don’t seem to realise that the MGDDA document (or the MGDDB/C/D) is inadmissible hearsay. That’s correct – inadmissible hearsay. In other words, it cannot be used in evidence.

    But if you agree the MGDDA in an admission, then it can. General rule – don’t agree!

    As far as the exhibit issue is concerned, note also the second paragraph. It states: “If the officer who filled out the Form were in the witness box he could not produce the Form in chief as an exhibit”. In other words, the MGDDA document is not an exhibit – whether or not the person completing it is in court!

    Even if the officer writes a witness statement referring to the MGDDA document as an exhibit, it still cannot be used as an exhibit!

    The only way the content of the MGDDA document can be used in written evidence is if the content is incorporated into a witness statement. In other words, the witness statement from the officer should contain all the information on the MGDDA document.

    If you have been charged with drink driving, check your MGDDA form and witness statement. I bet that the statement from the officer (even if you have one!) does not contain the information from the MGDDA document.

    A quick word of warning. Use a solicitor that knows what they are doing. You do not want to rush off to the CPS and point out its mistakes or ask for a properly completed witness statement prior to the trial date. Remember, they have to prove the case against you. If they have not got the evidence, they have not got a conviction.

    I recently represented a different client on a drink-driving charge. I explained to the CPS solicitor at trial that she could not use the MGDDA or printout in evidence. She did not believe me and thought I was joking. She had intended to simply hand over the documents to the Magistrates to read. She insisted they were exhibits and could therefore be exhibited into evidence. After showing her the legal guidance on the CPS website the penny finally dropped. “Oh” she said, “I can’t believe I’ve be using these forms as exhibits for 5 years and no one has ever told me I can’t”. Amazing, but true.

    If you have been charged with drink driving and do not remember a MGDDA form being completed with you, the police may have breached the procedure. There are some 20-30 questions that you should have been asked before the police go on to warn you that you do not have to give a breath specimen at all. The police should inform you of what happens if you fail to give such a specimen (known as the statutory warning). Quite simply, if the police failed to warn you of what happens if you fail to provide a specimen then you should not be convicted, even if you went on to provide a specimen.

    Note the actual section from the MGDDA document in my client’s case:

    A12

    BREATH TEST REQUIREMENT

    Time

    hours on ............../............../....................... (date)

    “I require you to provide two specimens of breath for analysis by means of an approved device. The specimen with the lower proportion of alcohol may be used as evidence and the other will be disregarded. I warn you that failure to provide either of these specimens will render you liable to prosecution.” “Do you agree to provide two specimens of breath for analysis ?”

    If my client had accepted that this warning was provided to him, he would, in effect, be helping the police to convict him (because the police would not then have to prove this aspect of the offence). However, my client stated that this warning was not provided and so I raised this as an issue in the case. Once this point was raised as an issue it would then be for the CPS to prove it was given. This is an important strategic step. The CPS would need all relevant police officers to attend court at a trial in order to give evidence and be cross-examined. If the police fail to attend court (you’d be surprised how often police fail to attend court) then the CPS would not be able to prove the statutory warning was given.

    From a strategic point of view, I would also usually request access to the CCTV taken from the breath test room. If the police fail to keep the CCTV (and often they do) then it may be possible to have the case thrown out of court for what is known as an abuse of process. Even if the CCTV is provided it may show that the breath test procedure was not completed correctly.

    IDENTIFICATION OF THE VEHICLE DRIVER

    Not only did the CPS have to prove that my client was over the limit, it had to prove that my client was driving the car whilst over the limit. This is why the police always prefer it if they stop a vehicle whilst the driver is still in the driver’s seat – it is easier to prove who was driving and that any alcohol in the body must have been consumed before driving.

    Of course, in this case my client was arrested some 15 minutes after he was alleged to have been driving. The police did not see my client drive the car, but they did have a witness who apparently saw my client exit the car and run away. Whether or not my client was drunk at the time he was stopped did not, by itself, create an offence. It was necessary for the police to prove he was also the driver.

    The police took a detailed statement from the witness who described the driver. Most people would be able to guess what the police should have done next; hold an identification parade. This is much simpler to arrange since most ID parades are completed by video. What should happen is the defendant is photographed looking forward and to each side. He then chooses several other video images of people who look similar. All images are put in a computer ‘line up’ and the witness then views the photographs to see if the defendant can be identified.

    The police are well aware of the need for any identification evidence to be collected properly. Consider the following case of R v Forbes 2000:

    Identification case - Forbes

    Code D, of the police Codes of Practice, which all police should know backwards, states:

    You do not have to be a chief inspector of police to understand that an ID parade was not only required, it would also have greatly assisted the police and the prosecution if the witness identified my client.

    So, have a guess what the police failed to do. Yes, that’s correct. No ID parade.

    Without eye witness evidence, the only way the police could prove my client was the driver was by DNA forensic evidence (see below).

    RELIABILITY OF FORENSIC EVIDENCE

    In a case such as this, I would expect the police to seize and forensically examine the clothing from the alleged driver as well as the air bag. A mobile telephone may also contain important data. Let’s consider this in more detail.

    If my client had been the driver then his clothes would contain powder from the air bag explosion. It would be simple to test his jeans, shirt or jacket for such powder. The police did seize his clothes so I expected the police to check for air bag residue.

    The air bag would also be expected to contain DNA from my client such as saliva, blood or skin, assuming he was the diver. The air bag would have been likely to have made contact with his face, usually causing bruises, scratches or even cuts to the skin. The police did take photographs of my client – which did show bruises and a cut.

    The police also seized my client’s mobile phone. It would be expected that anyone who had just been involved in a car crash and then ran away would be likely to call someone for help or even try to arrange an alibi. By analysing telephone records the police would be able to see if any call had been made around the time of the crash and, importantly, who received the call. The police would then be able to interview that recipient of the call.

    It should also be remembered that forensic evidence can also be used by the defence. For example, if I sent my client’s clothes to be forensically analysed and found no air bag residue, I would then have good evidence that he was not the driver (unless he changed his clothes prior to arrest).

    It is also very important to obtain and properly check any forensic report from the police or CPS. These reports will contain scientific and medical language and are difficult to understand to the untrained eye. You may be surprised at the mistakes that can be uncovered (providing, of course, that your solicitor knows what they are doing).

    I was therefore a surprised to see points 9-11 on the Schedule of Unused Material:

    9 Volume Crime Header SC140045647 Jumper Case Papers CND
    10 Volume Crime Header SC140045648 Jacket Case Papers CND
    11 Volume Crime Header SC140045646 Mobile Phone Case Papers CND

    The Schedule of Unused Material is an important document. It should be provided to you within 28 days of a plea of not guilty being entered at court. However, in almost every case I handle the CPS fails to disclose this document in time. This by itself can cause problems for the CPS as a failure to provide evidence within time may result in the case being thrown out, or to place pressure upon the CPS to drop the case.

    In my client’s case, the Schedule of Unused Material was served very late. The police listed the jumper, jacket and phone. This indicated that the police did not want to use these items as part of the prosecution case. Why?

    From my point of view, it would indicate one of the following:

    • The items were never even tested / analysed.
    • The items were tested / analysed but failed to show anything of benefit to the CPS.

    You will also note the code “CND”. This means “Clearly Non Disclosable”. In other words, the CPS did not want to disclose these items to the defence. Why seize my client’s own property and then refuse to return it to him or even allow the defence to see it?

    A swab test had been taken from my client following arrest so it would be possible for test for DNA from my client on the airbag. As part out my investigatory work, I discovered that the police had sent away the airbag for forensic testing. This meant that the result of the test must be made available – either as used evidence (and therefore disclosable to me) or unused (and should therefore be listed on the Schedule of Unused Material).

    The Schedule of Unused Material did not mention the forensic report so I knew the CPS would want to use the report as part of its case. However, as we got closer to the trial date I realised the CPS had a major problem. If the CPS fails to disclose evidence in time, it is often stopped from using that evidence at the trial.

    Due to Government funding shortages, redundancies within the CPS, low morale, staff shortages and poor administration, the CPS often only gets round to sending disclosure to the defence a coupe of days before a trial. Yes, you have read that correctly – a couple of days before a trial. Although the CPS usually has several weeks or months to make disclosure of evidence (as it must do in accordance withy the Criminal Procedure Rules and other legislation), it routinely fails to comply with the law!

    Late disclosure does not worry me. I often use this to win cases.
    – Marcus A Johnstone, Solicitor

    This case had gone on for several months. The CPS had failed to provide disclosure of evidence within the required timeframe. You will not from the above that the Schedule of Unused Material was also served late. As far as the expert report is concerned, have a guess when the CPS chose to disclose it to the defence… It was only disclosed on the day of the trial!

    In fact, prior to arriving at court I had not even been informed that an expert report had been obtained.

    The CPS solicitor at court looked very smug when I was handed the report. I was informed by the CPS that, in the CPS’s opinion, it confirmed beyond any shadow of doubt that my client was the driver of the car and, therefore, he should now change his plea to guilty to all charges.

    Contrary to the CPS solicitor’s view, my own belief was that we had now dramatically increased our chances of winning the case! Serving a report so late meant that I could apply to exclude the report entirely. The expert had not attended court personally so there was next to no chance of the report being read in court unless I agreed. Note, even if the expert had attended court I would still have been able to exclude the evidence and stop the expert giving evidence, because of late disclosure.

    Of course, prior to making any decisions I did take time to read the report and discuss it with my client.

    What I found in the report was difficult to believe. Below is a summary of its content.

    • The CPS instructed its own expert scientist to forensically examine the air bag from the car steering wheel. The CPS’s aim was to find saliva or blood from my client on the airbag. This would be strong evidence that my client was the driver of the car at the time of the accident.
    • When I received a copy of the expert report / witness statement I was informed by the CPS that, in the CPS’s opinion, it confirmed beyond any shadow of doubt that my client was the driver of the car and, therefore, he should now change his plea to guilty. However, when I carefully considered the report, I actually wondered if the CPS had read it themselves. Let me point out some of the sections that, in my view, did not particularly help the CPS.

    The opening paragraph stated:

    If this was an abbreviated statement, where was the full statement? It had not been disclosed to the defence. Any expert report that “comprises a limited summary of specific findings” is cause for concern, particularly when we were then informed that the report “does not necessarily cover all items received and / or examinations that have been conducted”.

    Anyone reading this would, I’m sure, be asking the same questions. Has the expert chosen to report only those findings favourable to the CPS? Why produce only a “limited summary”? What is the difference between a “summary” and a “limited summary”? Why not examine all items received? Why not report on all items examined?

    Considering this was just the first paragraph of a report consisting of several pages, you can imagine my delight at settling down to read the remainder!

    The result of any forensic examination was of paramount importance. The expert examined both blood and saliva. The conclusion of the report was that the DNA found on the airbag was from my client.

    However, when I considered the main body of the report in detail I became more concerned as to the accuracy and reliability of the expert’s conclusion. Consider the following wording taken from the report:

     ”A low level mixed DNA” does not sound too convincing, particularly when the report confirmed the DNA came from “at least three individuals”. Even if my client’s DNA was on the airbag, the prosecution evidence is weakened if the airbag also contained DNA from two other people.

    This particular report did not worry me. Even if the report was used in evidence, I felt the court would not agree with the conclusion of the expert.

    After my conference with my client I had a further meeting with the CPS solicitor. She thought that I was about to inform her that we would be changing our plea to guilty. She was surprised when I informed her that she should now drop all charges and, if she did not, I would seek to exclude all her forensic evidence (I briefly explained why). She would then end up with little evidence to prove the identity of the driver – no forensics, no identification parade, no driver!

    Two minutes later and all charged were dropped. The CPS solicitor even printed off a letter confirming the case was dropped (see below). We were awarded costs from Central Funds. The letter I later received from the CPS (see below) didn’t quite acknowledge the mistakes made by the police and the CPS but informed us that the case had been dropped because there was not enough evidence!

    Charges Dropped

    Needless to say, my client was extremely happy.

    The CPS did not like losing this case. Unfortunately the CPS sometimes (most times!) conducts its cases with blinkers on – CPS lawyers believe they have the right person and try to bully people into pleading guilty. The CPS hate it when they have to prove a case based on evidence! This is why I always make them prove every aspect of the case.

    As I often say to clients: what have you got to lose?

    I have dealt with hundreds, if not thousands, of motoring cases over the years. Once a case is dropped by the CPS, it’s over. Finished. However, in this case I received a little surprise.

  2. Drug Driving Case Victory – Avoid a Ban

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    In a recent case, M.A.J. Law successfully represented a young man charged with drug driving. It was an interesting case because so many obstacles were thrown in the defendant’s way by the police and the CPS. Our defence was also made more difficult because our client accepted smoking cannabis before driving!

    It was alleged that our client had been driving with a concentration of 6.1µg of cannabis per litre of blood; a reading that is over 3 times the legal limit (the limit being 2µg).

    Our Defence

    Our client was pulled over by the police and was witnessed by the police as the driver of the car. He was also on a public road. The police believed that our client may be under the influence of drink or drugs. He was given an alcohol breath test which he passed. The police then considered that he was under the influence of some drug and he was placed in the back of the police car whilst the police searched his vehicle. The police believed he may have further drugs in his car as they claimed to have smelt cannabis. His car was searched and a quantity of cannabis was found. He was arrested and taken to the police station.

    What the police did not realise was that our client had a small quantity of cannabis hidden in his pocket. Whilst he was sat in the police car he ate the cannabis, presumably because he did not want to be caught in possession of cannabis (a class B drug). This, of course, also enabled us to raise the defence of post driving consumption. In effect our defence was that our client was only over the drug drive limit because of the cannabis he consumed after driving. Had he not eaten the cannabis then he would have been under the limit of 2µg.

    Our case was made more difficult by the fact that our client had admitted to the police that he had smoked cannabis some 3 hours prior to driving. He was interviewed at the police station without a solicitor being present and before we became involved with the case. We therefore had to show that the drugs consumed prior to driving would have produced a level in his blood that was under 2µg.

    The Burden of Proof

    As with any criminal case, the prosecution must prove guilt ‘beyond reasonable doubt’. In our client’s case, the Crown Prosecution Service (CPS) believed that the result of the blood test reflected the level of drugs in our client’s body at the time of driving, even though the blood specimen was not taken until some two hours after driving.

    The Legal Presumption

    With drink drive cases, there is an assumption made in law that the level of alcohol found in a breath, blood or urine specimen (taken at the police station) is the same as the amount in that person’s body at the time of driving. In reality this is rarely the true position because alcohol in the body (as with drugs) varies over time and is eventually eliminated. This assumption does not apply if the defence can raise some evidence of alcohol being consumed after driving but before the specimen was taken.

    With drug drive cases, the prosecution position is made more difficult because the assumption does not apply. This means that the CPS cannot rely on the blood result as proof of the true drug reading at the time of driving. The CPS should ideally have evidence of the drug in the motorist’s body at the time of driving but, of course, this is not possible because under the new law only a blood specimen can be used as evidence, and the blood must be taken by a medical person at a police station or hospital. It is a fact, therefore, that every blood sample will be taken at some point after driving. The longer the time gap, the less credible the prosecution’s evidence.

    This makes it more difficult to prove a case beyond reasonable doubt when it is claimed the drug was consumed after driving. As expected, the CPS took the view that our client had not consumed any cannabis after driving and was simply making it up to try and put a defence together.

    Expert Evidence

    In order to assist our case we obtained an expert report to calculate the levels of cannabis in our client’s blood before and after driving. Based on the amount of cannabis smoked before driving, this report confirmed that our client would have been under the limit. In addition, this report confirmed that the amount consumed after driving was responsible for placing him over the limit.

    Drug Driving expert evidence

    The expert concludes that the amount of cannabis consumed after our client had ceased to drive could have accounted for the evidential blood result provided by the prosecution.

    Credibility

    The difficulty for any defence solicitor in such a case is convincing the court that the drug was consumed after driving. The CPS was of the view that nothing was consumed after he was stopped by the police and therefore all the cannabis in his blood must have been as a result of the drug smoked before he dove. The CPS also pointed to the fact that the MGDDA document made no reference to our client consuming drugs post driving.

    The CPS was desperate to try and hinder our defence. Throughout the case the CPS had made several mistakes relating to the evidence and we used this to our advantage. The only chance the CPS had of winning this case was to try and convince the court that our client did not consume any drugs after driving. To this end, the CPS wanted to try and stop us using our expert report because it was extremely helpful to the defence. The CPS persuaded the Judge, just two days before the trial, that the expert report should not be allowed into evidence as it was “not relevant”. It is still something of a mystery as to why a Judge would regard an independent expert report as not being relevant to such a case; after all, nobody knew whether one, two or three cannabis joints would result in a reading of more than 2µg. Unfortunately, it is sometimes the case that the Magistrates’ Courts are a little too pro-prosecution!

    The Trial

    At the trial in the Magistrates’ Court, the court would not allow the expert report to be presented into evidence because of the earlier ruling by the Judge. Consequently, there was nothing to show to the court what level of drug would have been produced from the cannabis consumed before or after driving. In addition, and possibly because there was no report, the court stated it did not believe our client consumed cannabis after driving. Consequently he was convicted.

    We felt strongly that both the pre trial ruling and the trial decision was wrong. In our view there was no legal basis for the expert report to be deemed inadmissible, and the ruling that our client had not consumed drugs post driving went against the strength of the evidence. As a result, we lodged an appeal to the Crown Court.

    An appeal takes place at the Crown Court most local to the trial court and is a complete re-hearing of the case. Judges in the Crown Court are also more senior, and more experienced, than Judges in the Magistrates’ Court. In the run-up to the appeal date we spent considerable time reviewing the evidence and preparing our case.

    Marcus Johnstone - Founder

    Marcus Johnstone, who was in charge of this case throughout, instructed a senior barrister to present the appeal. When the appeal took place, the Crown Court Judge decided that our expert report was indeed admissible and even went so far as to call the report ‘helpful’ to the court. During the hearing, our barrister cross-examined the police officers in order to show failures by the police. We also cross-examined the nurse who took the blood specimen and we were able to show failures in procedure.

    The appeal court ruled that as the defence had raised the issue of post driving consumption, the obligation was then placed upon the prosecution to try and prove that the cannabis was not consumed after driving, or, if it was, that our client would nonetheless have been over the limit (because of the cannabis smoked before driving). The CPS had failed to obtain its own expert report to carry out calculations of drug levels based on our client’s stated consumption of cannabis.

    Our client’s version of events was believed by the Judge and we won the appeal. We were also awarded costs from central funds.

    Comments from M.A.J. Law Solicitors

    This was an interesting case because it involved a defence of post driving consumption but where our client had already confirmed to the police that he had consumed cannabis before driving! What the defence had to do was try and establish that the amount consumed before driving would not have been enough to put our client over the limit, therefore the amount consumed after driving was responsible for the excess amount.

    With drink drive cases, it is generally known that 2-3 pints of beer would put the average male at the drink drive limit. However, it is not yet known what amount of cannabis needs to be consumed before an individual reaches the drug drive limit. This is important when defending such cases because any amount of drug consumed after driving may result in the prosecution failing. It is also very difficult for the prosecution to prove the drug was not consumed after driving because it is understandable (and believable by a court) why a motorist would quickly eat any drugs on his person so as to avoid a separate charge of possession or supply.

    With a defence of post driving consumption of alcohol (with drink drive cases), it can be difficult for the defence to show alcohol was in fact consumed after driving unless there was a reasonable amount of time that elapsed before the police arrived. If the police pull a motorist over at the roadside, the CPS will claim there was not enough time to drink anything. Also, the courts wonder, as possession of alcohol is not illegal, what has the motorist got to gain by drinking more alcohol after driving?

    As noted above, this position is different with drug driving. It may take only a second to eat a pill or a bag of cannabis and therefore any motorist could claim to have consumed the drug before the police got to the car. Once the defence of post driving consumption is raised, it is for the CPS to disprove it – something it may find very difficult to do.

    Could you Benefit from Expert Advice?

    If you’d prefer to discuss your drink driving case immediately
    with a specialist solicitor, please call our team on

    0151 422 8020

  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. 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.

  5. Drink Driving and Depression

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    Anxiety and depression affects nearly one if five UK adults1. Unfortunately, mental health and drink driving fall hand-in-hand. For many, alcohol is a form of medication, helping you feel better for a short period. If you have been charged with drink driving – and think that you might suffer from a mental illness – we can help.

    We would estimate that around 40% of all those who contact M.A.J. Law in relation to an allegation of drink driving or failing to provide a specimen will suffer from a mental illness – with depression and anxiety being the most common.

    We understand that mental health is a sensitive subject. If you would like to discuss your case in confidence, please call a member of our team on 01514228020. Alternatively, visit our website to request a call-back.

     

    The affects of alcohol

    Alcohol is a depressant. This means that it can disrupt the delicate balance of chemicals within the brain. Alcohol can affect parts of the brain that control movement, speech, judgment, and memory. It can even affect your long-term mental health.

     

    Medication and your breath results

    Our clients will often tell us that there is no “magic wand” for treating anxiety or depression. You may have been prescribed medication by your doctor.

    The most commonly prescribed drugs for anxiety are:

    • Diazepam
    • Valium
    • Alprazolam (Xanax)
    • Lorazepam.

    The most commonly prescribed drugs for depression are:

    • Prozac
    • Sarafem
    • Sertraline
    • Effexior.

    Different drugs can affect alcohol metabolism in different ways. Some drugs may slow down the speed at which alcohol is broken-down, others may increase it. We are often asked whether certain medications can cause ‘false positives’ on breath test machines or falsely elevate the breath readings provided. Let us be clear, medication can affect your breath alcohol concentration, not just by increasing your breath test results, but also by making you appear more intoxicated than you perhaps are.

    M.A.J. Law work closely with independent toxicologists, doctors and forensic experts who specialise in considering the affects of medication on alcohol absorption and elimination rates. It is not necessary to show that medication did affect the breath reading, we only have to show that medication may have affected the breath reading. Where doubt exists as to the reliability of the result provided by the breath testing device, the court cannot convict you.

     

    Is my mental illness a defence?

     

    1. Drink Driving

    The fact that you suffer from a mental illness does not necessarily mean that you have a defence to an allegation of drink driving, unless we can show that any medication you take affected the breath reading (above).

    Drink driving is a ‘strict liability’ offence. This means that the CPS do not have to prove that you intended to drink and drive. This also means, therefore, that the reason you made the decision to drive the vehicle will very rarely be taken into account, even if its well known that a particular medication can adversely affect judgement and the ability to make informed decisions.

     

    2. Failing to provide a specimen (breath, blood or urine)

    In a nutshell – yes.

    The offence of failing to provide a specimen, contrary to Section 7(6) Road Traffic Act 1988, can only be committed without reasonable excuse. Reasonable excuse is your reason, or excuse, for not providing a sample when required to do so by the procedural officer.

    Reasonable excuse can arise from both a medical and ‘mental’ condition. M.A.J. Law have successfully argued this defence for clients who suffer with the following:

    • Panic attacks
    • Anxiety
    • Depression
    • Alcoholism.

    If we can satisfy the court that you had a reasonable excuse for not providing a specimen, the court cannot convict you. To find out whether you have a reasonable excuse defence, please call a member of our team.

     

    Getting help

    You should always speak with your GP if you feel down on a regular basis. The evidence from your GP (even a written letter) could form the evidential basis of a defence. If you don’t see your GP, they won’t be able to comment on your condition.

     

    Useful information

    If you’re concerned about someone’s drinking, or your own, Drinkline runs a free, confidential helpline – Call 0800 917 8282.

    Addaction is a UK wide treatment agency, helping individuals and families manage the effects of drug and alcohol misuse.

    Alcohol Concern is national agency on alcohol misuse for England and Wales.

    NHS Choices provides advice and information on alcohol and offers a database of support and treatment services.

     

    Worried about court?

    M.A.J. Law specialise in defending drink and drug driving cases. Drink driving defences can be complex and confusing, particularly when building in arguments surrounding mental health. You may not be aware that you have a full defence to the allegation against you. We would always advise speaking to a member of our team who can discuss your all your options in detail.


    1. Office of National Statistics

  6. Your Insurance – Drink Driving

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    Drink Driving Conviction – How will it affect your insurance?

    A drink-related motoring conviction could drastically increase your insurance premiums. If you’ve not yet been convicted of the offence, it’s worth while considering the options open to you. The real question is not whether you can afford to challenge the allegation, but whether you can afford not to.

    If you’ve already been convicted of a drink-related motoring offence, you may be able to apply for the early removal of the disqualification. Take a look at our dedicated disqualification page to get your licence back early.

    A driver will typically see an increase in the cost of insurance premiums, on a like for like basis, for a period of 5 years. All insurance companies ask if a driver has any claims, motoring or other convictions/endorsements in the last five years.

    FACT – The average increase in insurance premiums for 5 years following a conviction is over 100%. This means that if your annual insurance premium preconviction was £1000.00, the cost of your insurance post-conviction (for the 5 year period) will be an additional £5000.00 (£10,000 in total).

    DR10 Insurance

    It pays to shop around for car insurance, especially if you are a driver convicted of a drinkrelated motoring offence such as drink driving. Whilst many insurers will refuse to cover a convicted drink driver, some insurance companies specialise in providing insurance policies to drivers with previous motoring convictions.

    Specialist convicted driver insurance companies will also recognise the completion of the drink drive rehabilitation course. This course will help to reduce your premiums whilst also reducing the period of disqualification by 25%. More information about the drink drive rehabilitation course can be found on our website or on the official .gov.uk website.


    Find a drink drive rehabilitation course near you


    Tips to reduce drink driving insurance costs

    • Attend a drink driving rehabilitation course
    • Shop around – There are several specialist insurers that deal specifically with convicted drivers
    • Increase your voluntary excess
    • Some insurers may be willing to reduce your premium once they’ve discussed the details of your case
    • Consider changing your vehicle to one that sits in a lower insurance group
    • Get a Thatcham alarm fitted if your car does not already have one. This is the insurance industries research standard.

    Drink driving – will my insurance be void?

    As above, the cost of not challenging a drink-related motoring offence can often work out greater than instructing solicitors to challenge the offence, particularly if you were involved in a collision. If convicted of a drink-related driving offence, your insurance company may refuse to pay out on any damage caused – including damage to other vehicles. You will then become liable for any damage or injury caused (often tens of thousands). Of course, if you win your case, your insurance company should cover all costs.

    Telling my insurance company that I was the driver

    M.A.J. Law challenge many drink-related motoring offences on ‘identification’. It is one of the strongest lines of defence. By advancing this defence we are not necessarily saying that you were not driving the car – we’re just asking the CPS to ‘prove it’ (which we are more than entitled to do). You should be aware, however, that the police can make enquiries with your insurance company about information passed to them. If you inform your insurance company that you were driving – and this information is passed to the police – we may be prevented from challenging this element of the offence.

    Many of our clients involved in collisions are unable to recall the incident (as a result of concussion, a head injury, shock etc…). This allows us to ‘put the prosecution to proof’ on identification whilst also ensuring the insurance to process your claim.

    Worried about court?

    You will probably be aware that we have a great deal of success in defending drink and drug driving cases. In fact, many of our cases are won before going to trial. This is because the CPS has an on-going duty to review cases. If, at any stage throughout the proceedings, the CPS feel as though there is no realistic prospect of a conviction, it cannot continue with the prosecution. Our aim when challenging drink and drug driving cases it to satisfy this test and persuade the CPS to throw your case out. M.A.J. Law have, on average, one drink driving case dropped every day.

    Useful links

    • FCA – Financial Conduct Authority – The Financial Conduct Authority regulates the financial services industry in the UK, including motor insurance companies.
    • Motor Insurers’ Bureau – The MIB provides compensation to people who are unable to pursue a valid claim against another driver following a road traffic accident because the other party is either a) not insured b) not known/traceable or c) was insured by an insurance company who is now in liquidation.
    • Financial Ombudsman – The financial ombudsman were set up by Parliament in order to help settle any complaints or disputes between consumers and businesses that provide financial services (insurance companies) free of charge.
    • Unlock – an independent charity providing information, advice and support to people with convictions – helping you to get back on track.
  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. Drink Driving Defences – Avoiding a Conviction

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    Drink Driving Defences

    M.A.J. Law are a market leading motoring defence practice. Our team of specialist solicitors have spent years fine-tuning unique case strategies and complex defence frameworks on a case-by-case basis. We do not intend to spill our trade secrets on this page. If you would like to know which defences may apply to your case, please get in touch.

    If you are accused of a drink driving offence, there may be a number of defences that could be presented in court to lessen your sentence, or acquite you altogether. Here we will discuss some of the more common drink driving defences, though it’s important to bear in mind that this list is not exhaustive.

    Identification

    This defence is applicable to the following offences:

    • Drink driving
    • Failing to provide
    • Drug driving
    • Drunk in charge
    • Driving whilst unfit through drink or drugs.

    Identification is a crucial element of any criminal offence. The court must be certain that the accused is the individual who committed the offence. Identification must be proven beyond all reasonable doubt. If the police witnessed you driving the vehicle, identification is unlikely to be contested by the defence. However, if you were not in the vehicle when the police arrived, even if you had previously driven the car, identification is likely to be ‘in issue’. There is nothing stopping the defence from ‘putting the prosecution to proof’ on this element of the offence.

    Circumstantial Evidence of Identification

    • Circumstantial evidence that usually exists:
    • The vehicle was warm
    • You were stood near or beside the vehicle
    • The vehicle belongs to you
    • You did not give an explanation as to why you were at that location
    • A witness claims to have seen you driving the vehicle You made a roadside admission to an officer or witness
    • Circumstantial evidence is unlikely to be sufficient to prove, beyond doubt, that you had driven the vehicle.

    Case Example

    M.A.J. Law successfully defended an individual charged with drink driving following a vehicle collision with a number of parked cars. The driver of the vehicle had left the scene. Our client was located near to the collision. The police presented scientific evidence of our client’s DNA on the driver’s airbag. In this case there was both forensic evidence (DNA) and circumstantial evidence (location of the defendant) that linked our client to the vehicle. However, the CPS failed to prove beyond doubt that our client had driven the vehicle at the time of the collision. On this basis, the prosecution case collapsed.

    Procedure

    This defence is applicable to the following offences:

    • Drink driving
    • Failing to provide
    • Drug driving
    • Drunk in charge
    • Driving whilst unfit through drink or drugs.

    You will know by know that if the police fail to adhere to statutory safeguards and mandatory procedures, the prosecution’s case will fail. This is accepted by all parties.

    We have discussed the MGDDA procedure on our dedicated drink driving page.

    When challenging procedure, we will need to obtain:

    • CCTV of the custody checking-in procedure
    • CCTV of the breath test procedure (if applicable)
    • The relevant MGDD document/s
    • Section 4 RTA Assessment Form (if charged with a Section 4 offence)
    • Witness statements from the procedural officer.

    Case Example

    In this case, the defendant (our client) was arrested after being found asleep in his vehicle. In the breath test room, the procedural officer explains what’s going to happen and briefly how the machine works. Our client is then asked a number of questions relating to post driving consumption.

    The officers begin to display some concern that the questions are taking to long to ask / answer and the machine might ‘time-out’ if the samples aren’t collected soon. At this point, our client is asked to stand-up and, upon request, provides two specimens of breath on the evidential device. At no point prior to this is the important legal warning provided.

    After the two samples are provided the procedural officer realises her mistake and attempts to rectify this by repeating the whole procedure again, this time with the legal warning. You can see on the screen shots below that our client provides, in total, four separate specimens of breath.

    drink-driving-defences-procedure-case-example

    The CPS dropped the case after we forced them to consider the CCTV.

    Private Land

    This defence is applicable to the following offences:

    • Drink driving
    • Drug driving
    • Drunk in charge
    • Driving whilst unfit through drink or drugs.

    The offences listed above can only take place on a road or public place. If the ‘incident’ occurred on private property, the court cannot convict you. The police will often claim that a location is public if the public have unrestricted access to it. This is not correct. The public may have open access to your driveway, but this will not make your driveway a public place.

    In order for the CPS to prove, beyond doubt, that the location is public, they must show – firstly – that the public use that location as ordinary members of the public (and not a special class of people with a particular interest in that location) and – secondly – that they did this with the permission of the owner of the land (the proprietor).

    Case Example

    Our client – a student – collided with a bollard on a university campus. The public had direct access to the campus and would often use the ‘though road’ as a shortcut. Despite this, the CPS failed to prove that ordinary members of the public used that particular location with the permission of the proprietor.

    The magistrates’ found our client Not Guilty.

    Reasonable Excuse

    This defence is applicable to the following offences:

    • Failing to provide a specimen of breath, blood or urine.

    Reasonable excuse is your reason and your excuse for failing to provide a specimen. More information regarding ‘reasonable excuse’ can be found on our dedicated Failing to Provide a Specimen page.

    The obligation falls on the defence to establish an ‘evidential basis’. This can be done by obtaining favourable expert evidence. Once this threshold is achieved, the CPS must disprove our defence to the criminal standard – beyond all reasonable doubt. This can be particularly difficult, mostly because the CPS doesn’t have the funds or resources to instruct its own independent expert.

    Case Example

    Mr P. was a teacher with no previous convictions. It was alleged by the prosecution that he had failed, without reasonable excuse, to provide two specimens of breath for analysis, contrary to Section 7(3) Road Traffic Act 1988. The penalty for this offence is a mandatory disqualification and, in some circumstances, a prison sentence.

    Mr P. suffered from anxiety and depression. He found the police station to be a frightening experience. So much so that it triggered a panic attack. The CCTV was provided but did not appear to show Mr P. panicking in anyway whatsoever. On this basis, any expert evidence would be unfavourable. We then identified recent case law which allowed us to rely simply on a letter from his G.P. confirming that, in adverse situations, he may suffer with a panic attack. Panic attacks can manifest themselves as shortness of breath, an increased heart rate etc. This letter was presented to the magistrates with a detailed explanation of the relevant case law. The court found that the defence had satisfied the ‘evidential basis’. The prosecution failed to disprove the defence beyond all reasonable doubt.

    Post Driving Consumption (the hip flask defence)

    This defence is applicable to the following offences:

    • Drink driving
    • Drunk in charge
    • Drug driving.

    It is a statutory defence if you consumed alcohol (or drugs) after driving the vehicle (or being in charge of it) but before the evidential test. The most common situation where this defence may arise is following a road traffic accident (where an individual may consume alcohol or drugs to calm their nerves).

    It does not matter where the alcohol was consumed from or in what form.

    The obligation falls on the defence to prove, on a balance of probabilities, that you would not have been over the prescribed limit at the time of the alleged offence. We must also show that the stated alcohol intake could account for the evidential breath reading provided. Once the defence have discharged this burden of proof, the CPS must then disprove it beyond all reasonable doubt.

    Expert evidence will be crucial. M.A.J. Law work closely with a number of highly respected expert witnesses, toxicologists and forensic scientists. The expert producing the report will consider all the factors that will affect alcohol elimination and absorption (such as height, weight, age etc…). They will then conduct a “Back Calculation” to determine the levels of alcohol in your body at the time of driving had the ‘post driving’ alcohol not been consumed. This will usually be presented in a Section 9 Report (Criminal Justice Act 1967).

    Post driving consumption is a very common defence and must be handled correctly. The courts are growing increasingly suspicious of those who claim to have consumed unbelievable amounts of alcohol after driving for no apparent reason. The success of this defence will often rest on the credibility of the individual relying on it.

    Special Reasons

    A ‘special reason’ is not a defence but does give the court discretion not to impose a disqualification. A guilty plea must be entered to the offence before a ‘special reason’ argument can be advanced. This defence is applicable to the following offences:

    • Driving in an emergency
    • Short distance driven
    • Spiked drinks
    • Reflux.

    Take a look at our dedicated ‘Special Reasons’ page for more information.


    Worried about court?

    You will probably be aware that we have a great deal of success in defending drink and drug driving cases. In fact, many of our cases are won before going to trial. This is because the CPS has an on-going duty to review cases. If, at any stage throughout the proceedings, the CPS feel as though there is no realistic prospect of a conviction, it cannot continue with the prosecution. Our aim when challenging drink and drug driving cases it to satisfy this test and persuade the CPS to throw your case out. M.A.J. Law have, on average, one drink driving case dropped every day.

    Drink driving defences can be complex and confusing. Some defences may not apply to your circumstances. We would always advise speaking to a member of our team who can discuss your specific case in detail.


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

    0151 422 8020

    or request a call back by visiting our website

  9. 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