Drink Driving / Excess Alcohol

Being pulled over and providing a positive sample of breath can be an extremely stressful time.

At the Roadside

The first thing to be aware of is that a roadside breath test is not evidential, that alone cannot be used to convict a driver.

Police Officers are required to activate their body-worn footage when anything evidential is likely to take place, this includes carrying out a roadside test. An Officer should also caution a driver before asking them any questions where there are reasonable grounds to suspect an offence has been committed. A failure to do the above can mean that anything said is inadmissible.

At the Police Station

If the roadside test is positive, the next step will be that the driver is taken to the Police Station and booked in with the custody sergeant. It is important to remain calm at this time. It is likely that you will be taken to a cell to await the intoximeter procedure.

You may be able to speak to a solicitor but this is relatively unlikely, it is not a defence to a charge of Failing to Provide a Specimen that you were not afforded legal advice.

The Intoximeter Procedure

There will be a separate room where the intoximeter machine is located.

The Officer will have a form called an MGDD/A where they are taking a sample of breath. If you are unable to provide a specimen of breath for a medical reason then they may seek to take a sample of blood or urine. It is very important to be aware that it is an offence to fail to provide a specimen of breath without reasonable excuse. A reasonable excuse is defined as a physical or mental inability. Common examples of this are asthma or needlephobia.

It is very important that the Officer closely follows the MGDD/A procedure, failure to do so can mean that you cannot be convicted.

In particular, the Officer must ensure that they provide you with the statutory warning in accordance with Section 7 of the Road Traffic Act. If the Officer fails to do this, then that is an absolute defence.

Once you have provided two samples of breath, the machine will produce a print-out. The guidance states that only those readings which exceed 40 microgrammes of alcohol per 100 millilitres of breath should result in charge (the equivalent is 80 milligrammes of alcohol in 100 millilitres of blood. 107 milligrammes of alcohol per 100 millilitres of urine).

Charge

After this, if the result is immediately available and over 40mcg, then the driver will be charged and bailed to attend the Magistrates Court.

Court Proceedings

The first hearing before the Magistrates Court is where a plea is entered, either Guilty or Not Guilty. If a Guilty plea is entered then a mandatory disqualification will follow unless there are special reasons not to disqualify.

If a Not Guilty plea is entered, then the matter will proceed to case management and the matter set down for trial. This will include completing what is known as a Preparation for Effective Trial Form (PET Form).

What are the Possible Defences?

The case of Cracknell v Willis ensures that the procedures and readings can be challenged, the Magistrates Court will regularly push back at Defendants who seek to plead Not Guilty and having robust representation is essential.

There are various technical arguments such as whether the sample was treated correctly and whether the intoximeter was functioning and producing an accurate reading. Rhys is experienced in challenging these outcomes.

One of the most common defences is to suggest post-driving consumption, this results in a BAC calculation being carried out to establish what the reading would have been prior to the post-driving consumption.

As discussed above, it is also a defence to require the prosecution to prove that the statutory warning was given:

A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution.

The Prosecution must also prove the identity of the driver and that the driving took place on a public highway.

Disclosure

One area that is regularly challenged is the disclosure process. It is important to ensure that a trial is fair and the prosecution disclose the material that undermines their case. In line with the Attorney General's Guidance on Disclosure and the Magistrates Court Disclosure Review, if the prosecution cannot comply with these obligations then the case should not proceed.

Sentence

If you are convicted after trial, then it is very important to mitigate the sentence as far as possible to limit a period of disqualification.

This will include seeking the option of completing the Drink Drive Rehabilitation Course, this will reduce the disqualification for a period of one week for each month of the ban imposed.

Appeal

There is an automatic right of appeal against sentence and/or conviction from the Magistrates Court. This can include seeking the suspension of your disqualification until the appeal is heard, this can end up being many months in duration.