Not Guilty

In some drink driving cases, there is a delay between when you are reported driving and when a road side breath test is taken. It maybe the case that you have been witnessed coming out of a pub, getting into your car and driving home. It may be a short while before the police turn up at your house and in that time you may well have had a drink since you stopped driving, which then puts you over the drink driving limit when tested.

There is nothing wrong in having a drink after you have got home and raising the issue of post driving drinking is known as the “Hip Flask Defence“.

Albeit a right and proper defence to raise, your word alone will generally not be good enough and you will need expert medical evidence to support your drink driving defence.

The expert medical evidence required is called a “back calculation” and the expert will be able to tell the court whether you would have been over the drink driving limit at the time of you driving or not. In making their calculation, the medical expert will look at a number of issues including the amount you have drunk after driving and the amount of alcohol that was in your system at the time you were breathalysed.

If the back calculation can show you were under the prescribed drink driving limit at the time you were driving then you will be acquitted of drink driving.

Factual Challenging the facts of the prosecution for a drink driving case can be the simplest and most effective defence of all but as with all drink driving cases it always depends upon the facts of the case and the circumstances surrounding it.

In its most basic form it may be that it was not you driving the car at the time of the drink driving offence and someone else has given your details falsely when they were breathalysed and arrested.

It is more likely that the vehicle you were driving at the time was not mechanically propelled or that you were driving on private land rather than a road or other public place.

Going from a simple defence to a more complicated version of it is the defence of necessity or duress of circumstances. Here the defence put forward is based on the fact that you drove whilst over the limit to avoid a threat of death or serious injury.

This type of drink driving defence is legally complicated and you will need experienced legal advice. It should also be noted that the courts are extremely strict on how this drink driving defence is presented and will apply a legal test to evaluate if the defence is available or not to you. The test applied is an objective one and you will need to show that at the time of the drink driving offence you were;

“… acting reasonably and proportionately in order to avoid a threat of death or serious injury.” R v Martin [1989].

In building their drink driving case against you the police and the prosecution are heavily reliant on the equipment they use in gathering their evidence.

There will normally be two evidential samples of breath taken, one at the roadside and a second and more accurate one taken at the police station after your arrest. The evidential breath sample taken at the police station has to be done on equipment that is approved by the Secretary Of State. The current approved equipment is the CAMIC Datamaster, the Intoximeter EC/IR and the Lon Intoxilyser 6000UK.

If after you have had this second breath test and the amount of alcohol recorded is higher than you expected you have the right for the equipment to be examined so as to test its voracity and accuracy – Cracknell v. Willis [1988].

These investigations will examine whether or not the equipment was used properly, calibrated correctly or if it has been modified in anyway that would take it outside of being approved by the Secretary Of State.

Albeit not a drink driving defence the potential argument for “special reasons” is one which must always be borne in mind.

Drink driving is a strict liability offence and there are no partial defences to it. You are either guilty or innocent of the offence. Because of its nature there is little scope for arguing what is called “exceptional hardship” after being convicted for drink driving.

In short “exceptional hardship” is where you can submit to the court that imposing a period of disqualification will cause you and others undue, significant problems but as already stated, this is not available in drink driving cases.

What is available is an argument under “special reasons” where you can ask the court to consider the circumstances of the case and exercise its discretion. It maybe that you only drove in a real emergency or that your drinks had been spiked and that you didn’t realise you were over the limit, etc. If such an argument is accepted by the court then your sentence may be reduced.