As Christmas approaches and forces up and down the country once again start their Christmas drink drive campaigns, here is a little food for thought……….
The Police Officer
Today’s topic and a poignant one is the subject of driving a vehicle whilst drunk. I don’t intend to try and find something good out of this because there can be no excuse. I will, however, say this. In my experience, drink drivers (or if you want to be emotive about the whole thing, potential killers) fall into two camps. There are those who are utterly reckless, having no regards for their own or anybody else’s safety, and who will willingly jump into a car no matter what. Then there is the second type of drink driver, and in my experience, the majority.
These particular drivers never intended to get into their car whilst drunk, but a situation will arise where a friend is in need, they need to take a loved one to hospital or they were just doing someone a favour. Unfortunately, this second category of driver is no less deadly than the first when drunk. And there is a certain irony in this, because the second type of driver would never dream of getting into a vehicle drunk, when they are sober. Alcohol removes inhibitions, dulls the senses and switches off that most precious of instincts; that of self preservation. That is what makes drink drivers so dangerous; if you have no regard for your own life then you can have no regard for anybody else’s.
A car is a lethal weapon make; no mistake about it, no less than a shotgun or sword. I am always amazed at the times friends of said driver are willing to get into the car with them. I once went on a shoot. To be honest it wasn’t my scene but the cardinal rule was that you walked in a parallel line. This was to ensure that you didn’t get shot from behind. Would you go on such a shoot when one of your friends was in charge of a firearm whilst drunk? Of course not, you see my point.
Today’s post is not a lecture. It is intended to enlighten and educate and once again, I have been assisted by Mr. John Storer, who is a legal defence lawyer; and His Worship John West JP a serving magistrate. Thank you Gentlemen.
Perhaps before we go any further it might help to understand a little bit about the human body which continues to function despite our concerted attempts to poison it with various toxins, alcohol being one of them. As you drink alcohol, it goes into your stomach. From there it slowly filters through into your blood stream. This is known as absorption. Now your body can only absorb so much alcohol per hour. The liver then processes your blood and does an extremely good job of removing that alcohol from your blood. But again it can only remove some much an hour. Stories of drinking strong black coffee will not sober you up any quicker. The average amount of alcohol removed from the body is about a unit an hour. Now assuming that you stopped drinking several hours ago, your body will reach a state of equilibrium whereby all the alcohol has been absorbed and is slowly been got rid of by your liver. The ratio of alcohol in your blood is reducing. Now take a second scenario where you continue to drink. Your liver is doing its best to get rid of the alcohol by reducing it but there is still more alcohol left to process. The ratio of alcohol in your blood is actually rising. This is very important, which you will see later.
Now there are three methods that a driver’s alcohol content can be measured. That is by breath, blood or urine. Again, regarding breath an important point should be noted. When I refer to breath I mean deep lung breath. If you remember your biology lessons at school, your lungs are made up of thousands of tiny capillaries. So tiny, in fact that they transfer oxygen from the air you breathe into your blood stream. But the process also works in reverse. Any alcohol in your blood will be transferred through those same capillaries into your lungs. That is what I mean by deep lung breath. This is also an important point and is perfectly illustrated by a recent cold over Christmas.
Double crewed recently and really too ill to drive because of my symptoms, my partner drove the vehicle. I had purchased a bottle of liquid cold remedy, as this would be the easiest to take whilst on the move. Along with the usual ingredients I noticed on the label 5% ethanol. This is alcohol. I took the prescribed measure and immediately self-administered a screening breath test using our roadside kit out of curiosity. 11mg was the reading, the legal limit being 35mg. I waited 20 minutes and took the test again, this time the reading was zero. The point I am making is the device measured the alcohol in my immediate breath, i.e., in my mouth. It essentially gave a false reading, which is why every driver is asked have they consumed alcohol, mouthwash or mouth spray in the last twenty minutes. If not; then any reading obtained must have been from deep lung breath and therefore from blood.
Okay, down to brass tacks. You are stopped by a police officer driving your car. Random breath tests are not legal in this country! There are three reasons why an officer may ask you to undergo a roadside breath test. You have been involved in a collision; you have committed a moving traffic offence or the officer suspects that you may have intoxicants in your system. I don’t propose to go into the myriad of possible scenarios for the last reason suffice it to say that the most common ones are manner of driving or that the driver simply smells of alcohol. There is legislation covering impairment such as drugs; or cold remedies! I will leave that for another day as it involves the services of a Doctor.
The driver will be legally required to provide a screening breath test. As alluded to earlier, the twenty minute rule applies. The driver is told that failure to provide a sample MAY lead to their arrest. The legal limit in this country is 35 mg of alcohol in 100 ml of breath. Now obviously if the driver blows, lets say 90mg at the roadside they will be arrested. But let’s suppose they blow 36mg, would they still be arrested? Well yes. Remember what I said earlier about absorption? Is the driver’s alcohol reading going up or down? The reason they would be arrested is this. The roadside breath test is simply a screening procedure. It is not admissible in court. Only a test carried out on an evidential breath device, approved by the Home Office may be used as evidence. The time between a roadside test and an evidential test will show whether the driver is going up or down. The evidential breath device is housed at a police station.
It is an offence to refuse a roadside screening breath test as it is to refuse an evidential test. It is an absolute offence and no evidence is needed to prove driving with respect of failing to provide. Many drivers have come unstuck with this and received a driving ban because they refused to provide a specimen of breath.
Okay, the driver has been arrested and taken to the local police station to undergo the “evidential station breath test procedure.” The driver is booked into custody. Ordinarily, a detained person (D/P) has legal rights. The right to have a solicitor; the right to consult the PACE codes of practice (a rule book basically outlining how a D/P should be treated) and the right to have someone informed of their arrest; NOT to be confused with the right to a telephone call which is an Americanism. In most suspected offences the D/P will not be given their rights because if they are drunk they may not understand what is being told to them and therefore a breach of PACE.
Now clearly, to offer a defense of drunkenness in a case of drink driving is absurd. So, those rights are effectively wavered in order to conduct the station procedure. It is one of the few offences that this occurs.
Now let me tell you about the station breath test device. The Home Office approves it. It is that accurate that it can detect acetones in your breath indicating whether you are diabetic or not. Recently painted walls will scramble its brains as will humidity.
Now before you potential drink drivers look for a get out clause, why don’t I explain the device to you. The device consists of a vacuum chamber. The device first purges that chamber to make sure there is no alcohol/air present. It then uses gas (alcohol/air mix) from a pressurized bottle to fill that chamber. It has to meet within certain tolerances otherwise the device will shut down. The device then purges the chamber. The driver then gives TWO evidential samples of breath. The chamber will purge itself between each reading. Law states that the lower of the two readings will be used as evidence.
But how does this machine record readings so accurately? Simply put, there is a filter wheel that spins at very high speed. A beam of light at a certain wavelength is shone through that wheel, through the vacuum chamber onto a photoreceptor on the other side. In essence the greater the alcohol/air ratio, the less light gets through. The less light gets through, the higher the reading.
Within a certain range the driver is offered what is called the statutory option. The driver has the option of replacing the breath reading with a blood or urine sample reading. Whilst there is a certain tolerance with breath readings, there is no tolerance with blood or urine.
Many of you will have heard of the “hip flash” defense, that is post incident alcohol consumption, most commonly used after the scene of an accident where the driver has made off from their vehicle and found at home shortly afterwards glugging away from a bottle of spirits. As suggested it is a defense, and it is down to the driver to prove that they weren’t over the limit at the time of the accident. By the way there is a presumption in law that the registered keeper will be the driver at the time of the offence. But as we, the police are very kind, we will assist you in your defense by seizing the glass you were drinking out of and the bottle of spirit from which you poured your drink. We will then interview you when sober to ascertain the amount of alcohol you had drank and certain other questions relating to your general health. If you’re thinking of ignoring the knock on your door after an accident, the Road Traffic Act gives the police the power to force entry to your home.
A few other myths explored. Putting a copper coin under your tongue will make no difference at all to the evidential breath reading except that you may find additional charges ensuing.
Blowing around the mouthpiece will again not cut any mustard as I record my observations and I will clearly see there is no condensation in the clear mouthpiece from your warm breath. Arguing that the mouthpiece was faulty? Have no worries as I have already seized it and the cellophane wrapper it came in as evidence. Oh, and just remember I invited you to choose your own sealed mouthpiece from many before the test began so I could not have knowingly given you a faulty one.
I have seen them come and I have seen them go. Unless there have been an abuse of process, drink drivers rarely “get off” with it.
It is impossible to give a complete overview to the legislation and case law relating to drink-driving offences as it can, and indeed does, take up large parts of various legal textbooks. I make no excuse for trying to simplify the legal processes in this post. This is intended as a very general overview, not a definitive statement of the law.
Upon arrival at the police station, the arrested person will be “booked into” custody. The custody sergeant will ascertain the grounds for the arrest from the arresting officer, satisfy himself that the grounds for detention exist, and then go through the formalities required by the Codes of Practice issued under the Police and Criminal Evidence Act 1984 (PACE) and advise the detainee of his rights under that Act.
One of those rights (and I would say the most important one) is the right to legal advice. The 1984 Act says that a person arrested and held in custody … shall be entitled, if he so requests, to consult a solicitor privately at any time. That advice is free if given by the duty solicitor or by the person’s own solicitor (provided that the “own solicitor” has a contract with the Legal Services Commission to provide such advice)
However, like so much of the law, that apparently simple and straightforward right is subject to certain exceptions. Such an exception most regularly occurs when a person is arrested for one of the drink-driving offences.
Section 7 of the Road Traffic Act 1988 allows the police to require a person to supply two specimens of breath into an approved machine when investigating whether that person has committed one of the drink-driving offences. That procedure is usually initiated immediately after the person’s detention at the police station has been authorized. It is an offence to refuse to provide such specimens without a reasonable excuse, punishable by fine, imprisonment (or both) and obligatory disqualification from driving.
Can an arrested person insist on receiving legal advice before providing the specimens of breath?
The Courts have made it plain that nothing in PACE or the Codes of Practice entitles a detained person to refuse a specimen of breath pending legal advice. The right to legal advice pertains to the interviewing of a suspect. There is nothing in the legislation that prohibits the police requesting samples for analysis as that is not an “interview” within the meaning of PACE
However, there have been examples where the evidence of the breath test procedure, or refusal to take the test, has been excluded from the subsequent trial. This is on the basis that it appears to the court that “…having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse affect on the fairness of the proceedings that the court ought not to admit it”
Most of these cases have hinged on the fact that the police have delayed making arrangements for legal advice after the request has been made or where a solicitor has been available but the breath procedure has been insisted upon immediately. However, these cases are very rare and, as a general rule, the lack of legal advice will not render the breath test procedure evidence inadmissible.
It should be noted here that the right to free legal advice in such cases is limited to telephone advice only and will always be given by CDS Direct, a call centre staffed by solicitors and qualified police station representatives, at first instance. The duty or own solicitor will only be contacted if an interview is to follow the breath test procedure.
As mentioned above, it is an offence to fail to provide a specimen without reasonable excuse. What constitutes “a reasonable excuse” has again occupied much court time and continues to do so. Generally, it will need to be a genuine physical or mental condition that prevents the person from supplying the sample. Expert evidence will be needed to convince a court of the genuineness of the excuse.
If a positive breath test is provided, the likely outcome will be that the person will be charged with driving with excess alcohol in their breath and bailed for (or in some cases, detained for) court. If the result is under 40µg of alcohol in 100 ml of breath, a caution will be given rather than a charge. If the result is 40µg – 49µg, the suspect will be offered to have that sample replaced by either a blood or urine sample. The choice of alternative sample will be that of the police, but they must listen to representations as to which one to use.
Are there any defences to driving with excess alcohol in the body? There are, but again are rare. The most common is probably that the alcohol was consumed after driving, rather than before. Again, however, the onus is on the defendant to show that not only was he under the limit when driving but also that the alcohol consumed afterwards accounted for the level recorded when the specimen was given.
As to what happens in court, I shall leave to ….
So what happens when you get before the court after charge and legal advice? Well let’s consider fact number one – you are going to lose your licence. No ifs or buts, it’s gone! Oh yes someone told you about “special reasons”. Don’t get your hopes up, in drink driving cases special reasons apply to the offence not the driver mitigation. You have to satisfy the court that there was something so special about this particular offence and there are a further 4 criteria to be met. In my years on the bench I have never had such a case argued before me.
So you are in court and you will invariably be in the closed off dock, because regardless of what you think, you are a criminal. You will be charged more often than not with driving having consumed excess alcohol. The Legal Adviser will read the charge out to you, which will include the alcohol reading. Mostly it is now in breath but could still be in blood or urine. If you plead guilty you will be sentenced there and then. Your sentence will depend on your reading and will start with a Band C fine and disqualification for 12 to 16 months. For an average wage earner you can be looking at a fine of £615 (before any discount) plus prosecution costs and the government’s surcharge. The higher the reading the more severe the penalty and you could be looking at a community order (unpaid work etc). In really high readings your starting point will be 300 hours community work or 26 weeks custody plus a 3 year driving ban. If you have a previous drink related offence within the last 10 years you will be facing a minimum disqualification of 3 years even on a low reading. Penalties for failing to provide are just as severe.
Prior to your court appearance you will be given information on the ‘Drink Driver Rehabilitation Scheme’ (DDRS). What this means is that successful completion of a course run by a private company will enable you to have the disqualification period reduced by a 25% e.g. 12 months down to 9 months. This course can only be offered on the day and you are responsible for the costs, currently £175 – £195. The course must be completed at least 2 calendar months prior to the end of the disqualification period. Magistrates regard drink driving as one of the most serious of offences and it will be treated as such. For many drink drivers it will be their first court appearance and as such a daunting one. They will emerge with a criminal record which will not only affect their ability to get insurance later on but may well lose them their employment and will have ongoing repercussions for example see their case reported in the local papers. So remember getting behind the wheel after even just one too many drinks can lead to disaster and there can be a heavy price to pay and not just in the courtroom.