When people think about drink-driving or drug-driving, it is often based on a narrative that involves a man, leaving a pub late at night, driving erratically and being stopped by the police. This scenario is sometimes the backdrop to an arrest for drink or drug driving offences. However, more often, the story is quite different.
The morning after the night before
The morning after the night before begins with a headache, followed by groans as the body and mind adjusts to the horrible thought that this is not a weekend, and work beckons.
A quick shower revives the senses and off to work you go. Traffic is heavy, drivers as intolerant as ever, and the rain contributes only to a sour mood amongst drivers. Then bang – a relatively minor shunt causing minimal damage, to really kick start the day!
But it is often this kind of minor road traffic incident, causing road chaos and attracting the attention of the police that results in roadside testing for drink and drugs.
The fact that you look great, feel fine, and are not responsible for the accident, will do nothing to mitigate the alcohol or drug levels in your body. Anyone who tells you that you can confidently predict alcohol or drug levels the morning-after is not telling the truth.
What happens next?
What happens next makes the earlier headache pale into insignificance.
An arrest, charge and court appearance resulting in a minimum period of disqualification.
Will you keep your job? What will your partner say?
The safest message remains ‘none for the road’; in some cases, there are legal defences available, and we can discuss these with you. When a defence is not possible, we work hard to mitigate the sentence and get your life back on track.
Your local police force will now have in place its Christmas and New Year drink-driving campaign. Roadside testing will increase, and officers will be extra vigilant.
How can we help?
We hope that you do not need our services over the festive period. If you do, please be assured that we are here, on your side, 24 hours a day.
If you need specialist advice in relation to any driving offences, criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email firstname.lastname@example.org. Let us help.Read More
In some cases, the police need to take either a blood or urine sample from a driver suspected of drink driving, or driving under the influence of drugs. In almost all instances, the police opt for a blood sample.
Part of the procedure is informing the suspect that they can if they wish request part of the sample for independent testing.
Despite this vital protection being available, a large number of people fail to take advantage of this procedure.
Why do people not use this procedure?
Part of the problem is the procedure adopted by the police. The police do not offer a sample to the suspect (save where the suspect is incapable of consenting). They merely state, at the commencement of the procedure, that a suspect can request a sample.
From a practical perspective, this is a deficiency in the procedure. The suspect must first pick up on the option being available, which is not always easy during what can be a confusing and pressured situation. Then they must later make a specific request.
Before the 1988 road traffic legislation, there was a specific requirement for the police to offer a specimen. Consequently, the new law was very much a significant dilution of rights.
In Campbell v Director of Public Prosecutions  EWHC 559 (Admin) the court held:
“It is, therefore, no longer a statutory requirement for the officer to inform the suspect of his right to request his own specimen. [Counsel] submits that I should regard it as by now a settled principle of common law that such information should be provided to those against whom police officers are proceeding under section 7 of the 1988 Act. In my judgment, that is a hopeless proposition.”
This is not, however, the end of the matter as the court went on to state:
“There may well be circumstances, however, when, for reasons similar to those considered by the Court of Appeal in Mitten, a defendant will wish to challenge the admissibility of the analysis because he claims to have been unaware of his right to request the sample and as a result has suffered prejudice. It may be that such an application could be made under section 78 of the Police and Criminal Evidence Act 1984. I do not intend further to anticipate circumstances in which prejudice might be established.”
A vulnerable or distressed suspect may well be able to argue that they were unaware of their rights. The same would apply to a person for whom English is not their first language. That would be the case even though the police communicated the right.
It is the effectiveness of that communication that will be critical in such cases.
The above is just one small aspect of the law concerning the taking of samples. The law relating to drink driving and drug driving is detailed and complex. You should always seek advice before entering a plea at court. A failure to follow the proper procedure may provide a valid defence in this type of case.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email email@example.com. Let us help.Read More
The government has announced its intention to use new roadside breathalysers, in a move that could see a further 6,000 convictions per year for drink driving.
At the moment, the breath test procedure is carried out in 2 stages. A person who tests positive at the roadside will be arrested and taken to a police station for a further test to be administered. This is known as the ‘evidential test’ and is the one that forms the basis of any prosecution decision.
The gap in time between the first positive breath test and the one administered at the police station may be significant enough to ensure that a person blows a negative reading – this is due to falling alcohol levels over time (although in some cases the reverse can also happen).
While ‘back calculation’ tests can be carried out, the evidence base is such that they are seldom used for this scenario. Arguably, therefore, some drink drivers go free.
The legislation allowing for a definitive roadside evidential breath test procedure is already in place, but today the government has announced a competition aimed at device manufacturers, with the aim of ensuring that suitable devices are approved and in use by 2020.
Around 460,000 breath tests are conducted each year, with some 59,000 people providing a positive reading.
Approximately 6,000 people provide a positive reading at the roadside but are found to be under the limit when tested at the police station – this change will see those people prosecuted.
In many instances these will be people who have ‘gambled’ on the quick lunchtime drink or have not allowed quite enough time to sober up from the night before.
The changes will also reduce the scope for so-called ‘loophole defences’, popular due to the complexities of the police station procedure. It is expected that decades of case law will become redundant once the new devices have been rolled out. Experience tells us however, that as one legal challenge closes, another pops up!
The penalties for drink driving are severe, with minimum periods of disqualification, high financial penalties and punishing insurance premiums for many years to come. In many cases, offenders face the loss of employment. ‘One for the road’ often comes at a very high price.
How can we assist?
We are experts in all aspects of drink and drug driving law. This is one of the most complex areas of criminal law, and early advice should be sought in order to achieve the best outcome. Contact John Howey on 020 7388 1658 or firstname.lastname@example.org.Read More
In some instances, it is possible to apply to a court and ask that a driving disqualification is ended early.
Therefore, if your circumstances have changed since being disqualified, it is worth discussing with one of our criminal law specialists whether or not you can take advantage of this legal provision.
What are the rules?
You can ask the court to reduce your disqualification period after you’ve been banned from driving for:
– 2 years – if the disqualification was for more than 2 but fewer than 4 years
– Half the disqualification period – if it was for between 4 and 10 years
– 5 years – if the disqualification was for 10 years or more
We are often asked by clients who have been disqualified for a second drink-driving offence whether they too can apply. The answer to that is yes, although the application will be complicated as the High Court has stated:
“I would only add that justices … may if they think fit regard a mandatory disqualification as one which they are somewhat less ready to remove than a discretionary disqualification.”
But it will depend, as always, on the individual circumstances of the case, in Boliston v Gibbons (1995) for example the High Court showed itself to be very sympathetic to the applicant’s plight.
What are the criteria?
The law states that:
“On any such application the court may, as it thinks proper having regard to—
(a) the character of the person disqualified and his conduct subsequent to the order,
(b) the nature of the offence, and
(c) any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.”
In essence, what needs to be established is that there is some compelling reason why the ban should be brought to an end, such examples include employment opportunities, reliance on a vehicle for caring responsibilities, personal immobility etc.
Will the application be opposed?
It is very rare for an application not to be opposed, so we work incredibly hard to ensure that an impressive argument is put before the court.
Merely turning up and throwing yourself on the mercy of a court is unlikely to result in a return of your driving licence.
If the application is refused, can I make a further application?
Yes, you can re-apply again but must wait at least three months from the date of refusal.
How we can help
We can assist in preparing and presenting your application to the court. Our experienced team have significant advocacy expertise when it comes to driving offences, and are best placed to secure the return of your driving licence.
Is legal aid available?
Legal aid may be available subject to a means test. Private representation is available at competitive rates.
Contact John Howey on 020 7388 1658 or email@example.com to arrange an appointment.
As we put Halloween and Bonfire Night behind us, easing into those dark wintry nights, it isn’t long before Christmas is in our sights and party season gets underway.
As night follows day, this time also coincides with a national police initiative concerning drink driving, as forces across the country prepare for a spike in the numbers of those tested and arrested for drink and drug driving offences.
While these offences may not seem particularly serious when viewed against other offences, what is not often understood is the real impact that a conviction can have.
Research shows that loss of a licence leads in a great many cases to loss of employment, in turn to loss of housing as bills cannot be paid, and sometimes it is the final straw that breaks a relationship. The financial costs will be felt for many years thereafter as insurance premiums will be greatly increased.What we also see is that a great many people come before the courts with alcohol readings that are not high, and where offences have been detected the ‘morning after’. Offences that can be said to have been committed perhaps more out of ignorance than a wilful disregard for others.
A single error of judgment with devastating consequences.
What is a safe level of drinking if I propose to drive?
No alcohol is the safest level as it ensures that when you get behind the wheel, your reactions are not impaired to any degree at all.
Crucially it also prevents the guesswork that brings so many people before the courts.
Urban myths such as ‘2 pints are ok’ have long since been proved to be false, as have back of the envelope guesses as to how long it takes alcohol to leave the body.
Different people will deal with alcohol in different ways, and even this can vary for a single person depending on a multitude of factors. The alcoholic content of drinks is generally greater nowadays, and measures of, for example wine, bigger than before.
Merely feeling OK to drive is not a reliable indicator as to whether you are below the legal limit or not.
As we get merry, we reach a tipping point; we can make foolish choices that will prove costly, sometimes not just measured in financial terms but in injury and even loss of life.
You do not hear a lawyer say this often – but we do not wish to see you this Christmas.
Think, before you drink and drive.
How we can assist
If you do find yourself in trouble, there is a lot we can do to assist.
The police must follow complex procedures to establish a case against you – we can ensure that this has been done.
We can also investigate issues such as ‘laced drinks’ and ‘special reasons’.
Well-presented mitigation can make a real difference to the outcome and even where a disqualification cannot be avoided, we can often achieve a reduction in length.
Drink-driving alcohol limit
England and Wales have the highest alcohol tolerance for drink-driving in Europe. To be guilty of drink-driving, a person must have more than 80mg of alcohol in 100ml of blood, 35 micrograms of alcohol in 100ml of breath or 107mg of alcohol in 100ml of urine. In Scotland, the limit is 50mg of alcohol in 100ml of blood. The only other European country with the same limit as England and Wales is Malta.
Some European countries have different limits for the type of driver. A lower alcohol limit is usually set for commercial drivers or newly qualified drivers. Other countries such as Romania and Croatia, have a zero tolerance to alcohol and any alcohol found in the blood will be a drink-driving offence.
In extradition proceedings, the Judge must be satisfied that the offence committed in the other European country is also considered a criminal offence in the UK. Therefore, many who have been arrested for drink-driving in zero-tolerance countries may not necessarily be guilty of an offence in England and Wales. If that is the case, then extradition cannot take place.
Methods of recording blood alcohol content
A further complication arises as many of our European counterparts have a different method of recording blood alcohol content found in drink-drivers. Romania, Poland and Lithuania do so as a percentage and it is not clear what that translates to compared to the readings used in England and Wales. Often at full hearings, there are arguments as to the correct calculation and translation into micrograms of alcohol per 100ml of blood from the different expression as found in the European Arrest Warrant.
The Crown Prosecution Service is responsible for providing this calculation and translation in each individual case. If they fail to do so, a Requested Person might be discharged as the District Judge cannot be sure that the offending behaviour corresponds to a criminal offence in England and Wales. As Mr Justice Blake says in Czech Republic v Kolman  EWHC 302 (Admin), District Judges ‘should not also need to become part-time experts in bio-chemistry.
Please contact John Howey on 0207 388 1658, or email firstname.lastname@example.org if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior SolicitorRead More