DRINK DRIVING (INCLUDING DRUGS IMPAIRMENT)
A person is guilty of an offence if he drives or attempts to drive a motor vehicle on a road or other public place when the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit.
(Road Traffic Act 1988 S5(1)
The difference between drink driving and attempting to drive depends upon whether or not the vehicle is put into motion.
In order to be convicted of drink driving, the prosecution must prove that the prescribed limit has been exceeded. The prescribed limit is 35 microgrammes of alcohol in 100 millilitres of breath. However in accordance with a Home Office Circular, the prosecution does not prosecute for drink driving if the breath alcohol level is below 40 mgs. The prescribed alcohol level in blood is 80mg of alcohol in 100 millilitres of blood and in urine is 107mg of alcohol in 100 millilitres of urine.
In order to achieve a conviction for drink driving, the court has to be satisfied that all procedures have been followed correctly. Never forget that evidence can be challenged by a defendant who does not accept that he is guilty of drink driving or that there has been a significant failure by the police when carrying out the investigation. The courts have held that any failure by a police officer to adhere to strict procedures when obtaining samples can be fatal to a prosecution for drink driving.
In most prosecutions for drink driving, the driver will be the subject of a roadside breath test. If this proves positive he will be taken to the police station to provide a further breath test. The machine used to obtain this sample is usually a Lion Intoximeter and once again to achieve a conviction for drink driving, the police must obey strict rules.
In certain circumstances, for example, if a person is medically not able to blow into the Lion Intoximeter, the police may proceed to take a sample of blood or urine. Again if this is to be used in a prosecution for drink driving, the police must strictly adhere to fixed procedures and if they do not, a court may refuse to convict a person of the offence of drink driving.
If a police officer suspects a person is guilty of drink driving and the driver cannot provide a breath sample, the decision to take a blood or urine sample is the officers, unless there are medical reasons for not providing blood.
However where a driver taken to the police station on suspicion of drink driving provides a breath test and the lower reading on the breathalyser does not exceed 50mgs of alcohol, the driver has the option to have it replaced by a specimen of blood or urine.
There are defences to drink driving. To give yourself the best chance of success you should instruct a specialist drink driving solicitor or a lawyer who specialises in defending traffic offences. For example a person should not be convicted of drink driving where the driver proves that he consumed alcohol before he provided the specimens and after the time of the alleged offence and that had he not done so, the proportion of alcohol in his breath, blood or urine would have exceeded the prescribed limit. Clearly defences to drink driving involve technical legal argument and specialist preparation is involved. In any such situation, you should contact us immediately, in order that we can, if necessary, obtain expert, scientific evidence to help establish your innocence.
The defence of necessity is available to the offence of drink driving. Up until recently this was not the case, but is has been held by the House of Lords that the court takes seriously this defence in drink driving cases.
Duress can also be used as a defence to drink driving. This can be, for example, where a person drives a car while drunk due to threats of death or serious physical injury. Once a defendant charged with drink driving raises this as a defence, it is up to the prosecution to disprove it. There must be good cause to fear death or serious injury. This will only succeed as a defence to drink driving if the threat is immediate or imminent. When the threat is removed or becomes ineffective, the driver must stop driving the motor vehicle. If the driving continues after the threat has ceased, he is guilty of drink driving.
If you are prosecuted for drink driving this can only be heard in the Magistrates Court. To obtain a conviction for drink driving, the prosecution must prove that the defendant was i) driving or attempting to drive a motor vehicle
And ii) on a road or public place
And iii) the defendants alcohol level was over the prescribed limit.
To mount a successful defence to drink driving allegations, whether by instructing scientists to question alcohol levels or by legal argument as described above, it is crucial that your defence preparation begins as soon as possible. Where a defendant charged with drink driving has failed to prepare his defence in time, there is no guarantee that the court will allow further time for this to happen. For this reason you should contact our drink driving solicitor immediately, and possibly avoid a driving ban.
There may be circumstances where a person who has driven a motor vehicle while his alcohol exceeded the prescribed level does not have a defence but may still avoid a disqualification if he has a special reason. It is for the driver charged with drink driving, once a guilty plea has been entered, to satisfy the court that there are special reasons not to disqualify and then to persuade the court to use it’s discretion in not disqualifying.
In order to raise special reasons for not disqualifying in a drink driving case, the defendant must understand that the court will only take account of reasons special to the offence and not the offender. Financial or other hardship to the driver will not prevent a disqualification for drink driving. Factors such as moving a vehicle to prevent a hazard or accident may amount to a special reason and be used to persuade a court not to disqualify a defendant convicted of drink driving.
There are many instances of people being guilty of drink driving as a result of having their drinks laced with alcohol by another person, without their knowledge. This could amount to a special reason to be put before the court to avoid a ban for drink driving. Clearly this is a complicated legal area and strict rules have been laid down by the courts in relation to special reasons. The courts have also indicated that for this to be successfully argued, it may well be essential to instruct expert scientific witnesses to calculate the blood alcohol level that a person would have had if his drinks were not laced. Clearly it is essential for you to receive our expert advice and representation if you wish to avoid a driving ban for drink driving by use of special reasons.
A person may also avoid a ban for drink driving if he can satisfy the court that the journey was an emergency. To satisfy the court that the journey was what amounts to ‘an emergency’ would require specific legal knowledge of the case law in this complicated area, as cases have made it clear what does and does not amount to an emergency. it is also worth remembering that certain circumstances might be such as to amount to the defence of duress or necessity and enable a driver to enter a not guilty plea to drink driving. Specialist legal advice is required to distinguish between a defence to drink driving and special reasons for not disqualifying after a conviction of drink driving.
The penalty for drink driving a motor vehicle or attempting to do so, is an obligatory ban for a minimum 12months and a fine of up to £5000. the court also has the power to imprison a defendant for up to 6 months.
www-sentencing-advisory.panel.gov.uk |
