Drink Driving Defence and Loopholes
Don't feel pressured into pleading guilty. There are many defences available to a drink driving charge. This page explores some of the best loopholes available.
On this page;
- Drink Driving Defences
- Failing to Provide
- Solicitor Costs
- Next Steps
Drink Driving Defences and Loopholes
Drink Driving / Drug Driving / Failing to Provide
M.A.J. Law are a market leading motoring defence practice. Our team of specialist solicitors have spent years fine-tuning unique case strategies and complex defence arguments on a case-by-case basis. Most of our cases begin with a breath, blood or urine result in excess of the prescribed limit. This booklet is not a complete list of drink driving defences but will outline the most common.
We do not intend to spill our trade secrets in this booklet. If you would like to know what defences apply to your case, please get in touch. All our initial advice is completely free of charge. Within minutes our team will be able to tell you whether you have a defence to the allegation.
Identification
Defence available for;
- Drink Driving
- Drug Driving
- Drunk in charge
- Driving whilst unfit through drink or drugs
Identification is a crucial element of any criminal offence. The court must be certain that the accused is the individual who drove, or was in charge, of the motor vehicle. Identification must be proven beyond all reasonable doubt. If the police witnessed you driving the vehicle, identification is unlikely to be contested by the defence (because the police have direct evidence). However, if you were not in the vehicle when the police arrived, even if you had previously driven the car, identification is likely to be a key issue in the case against you (even if someone else saw you driving). There is nothing stopping the defence from ‘putting the prosecution to proof’ on this element of the offence.
Circumstantial evidence of identification
Circumstantial evidence that usually exists;
- The vehicle was warm
- You were stood near or beside the vehicle
- The vehicle belongs to you
- You did not give an explanation as to why you were at that location
There may also be a requirement for the police to conduct a Identification parade with you whilst at the police station. Code D of the Police and Criminal Evidence Act 1984 compels an officer to carry out an ID parade where the suspect denies being the person whom the witness has identified.
Case example
R v. JW
M.A.J. Law successfully defended an individual charged with drink driving following a vehicle collision with a number of parked cars. The driver of the vehicle had left the scene. Our client was located near to the collision. The police presented scientific evidence of our client’s DNA on the driver’s airbag. In this case there was both forensic evidence (DNA) and circumstantial evidence (location of the defendant) that linked our client to the vehicle. However, the CPS failed to prove beyond doubt that our client had driven the vehicle at the time of the collision. On this basis, the prosecution case collapsed.
Identification in fail to provide cases
As an offence, failing to provide takes place at the police station, usually in front of an officer. Whether you were driving the vehicle at some point earlier is largely irrelevant (as it does not go towards the commission of the offence). So long as the police had reasonable cause to breath test you, you could still be convicted. However, whether you had driven the vehicle or not is incredibly important in sentencing. This is because the law differentiates between a case where the police can prove that you drove, and a case where the police cannot. You can read more about this here.
Was there an identification parade?
Code D of PACE requires the police to carry out an identification parade where;
- The suspect is identified by a witness
- The suspect denies being the person identified
If these conditions are satisfied, an identification procedure must be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. If the provisions of Code D of PACE are not followed, the consequences of the failure to comply may result in evidence being excluded under Section 78 PACE. (See Confessions Unfairly Obtained Evidence and Breaches of PACE elsewhere in the Legal Guidance).
Procedure
Defence available for;
- Drink Driving
- Failing to provide
- Drug Driving
- Drunk in charge
- Driving whilst unfit through drink or drugs
You will know by now that if the police fail to comply with mandatory procedures, the prosecution’s case will fail, even if you are significantly over the legal limit. This defence is accepted by all sides, including the court and CPS. We regularly win cases on this basis.
When challenging procedure, we will need to obtain evidence from the police and CPS. This will enable our team to identify mistakes and shortcomings. CCTV of the custody checking-in procedure and CCTV of the testing procedure (if applicable) will be crucial. The relevant MGDD document/s will also be requested.
Case example
R. v CH
In this case, the defendant (our client) was arrested after being found asleep in his vehicle. In the breath test room, the procedural officer explains what’s going to happen and briefly how the machine works. Our client is then asked a number of questions relating to the procedure. The officers begin to display some concern that the questions are taking too long to ask/ answer and the machine might ‘time-out’ if the samples aren’t collected soon. At this point, our client is asked to stand-up and, upon request, provides two specimens of breath on the evidential device. At no point prior to this did the officer give our client the important legal warning (known as the statutory warning). After the two samples are provided the procedural officer realises her mistake and attempts to rectify this by repeating the whole process again, this time with the legal warning. In total, four separate specimens of breath were given.
The CPS dropped the case after we forced them to consider the CCTV.
Private Land
Defence available for;
- Drink Driving
- Drug Driving
- Drunk in charge
- Driving whilst unfit through drink or drugs
The offences listed above can only take place on a road or public place. If the ‘incident’ occurred on private property, the court cannot convict you. The police will often claim that a location is public if the public have unrestricted access to it. This is not correct. The public may have open access to your driveway, but this will not make your driveway a public place. In order for the CPS to prove, beyond doubt, that the location is public, they must first show that the general public use that location as ordinary members of the public (and not a special class of people with a particular interest in that location) and - secondly - that they did this with the permission of the land owner (the proprietor).
Case example
R. v PG
Our client - a student - collided with a bollard on a university campus. The public had direct access to the campus and would often use the ‘though road’ as a shortcut. Despite this, the CPS failed to prove that ordinary members of the public used that particular location with the permission of the proprietor. The magistrates’ found our client Not Guilty.
Reasonable Excuse
Defence available for;
- Failing to provide a specimen of breath (vehicle driver)
- Failing to provide a specimen of breath (in charge)
Reasonable excuse relates to your reason for failing to provide a specimen. More information regarding ‘reasonable excuse’ can be found on our dedicated Failing to Provide a Specimen page. Remember that in failing to provide cases, the burden falls on the CPS to prove, beyond doubt, that your defence does not apply. If, for example, you failed to provide because you have Asthma, you only need to make this claim in court - you don't need to prove that you have Asthma. The CPS must then find evidence to prove you wrong, but they won't obtain medical records, they won't speak to witnesses and they won't instruct an expert. The CPS don’t have the funds or resources to dedicate time and effort to your case.
Case example
R. v RP.
Mr P was a teacher with no previous convictions. It was alleged by the prosecution that he had failed, without reasonable excuse, to provide two specimens of breath for analysis, contrary to Section 7(6) Road Traffic Act 1988. The penalty for this offence is a mandatory disqualification and, in some circumstances, a prison sentence. Mr P suffered from anxiety and depression. He found the police station to be a frightening experience. So much so that it triggered a panic attack. The CCTV was provided but did not appear to show Mr P panicking in anyway whatsoever. On this basis, any expert evidence would be unfavourable.
Our team went back to the drawing board and, after a short time researching legal precedents, identified recent case law which allowed us to rely simply on a letter from his G.P confirming that in certain situations Mr P may suffer with a panic attack. Panic attacks can manifest themselves as shortness of breath, an increased heart rate etc... This letter was presented to the magistrates with a detailed explanation of the relevant case law. The court found that the defence had satisfied the ‘evidential basis’. The prosecution failed to disprove the defence beyond all reasonable doubt.
Post Driving Consumption
Defence available for;
- Drink Driving
- Drunk in charge
- Drug Driving
It is a statutory defence if you consumed alcohol (or drugs) after driving the vehicle (or being in charge of it) but before the evidential test. The most common situation where this defence may arise is following a road traffic accident (where an individual may consume alcohol or drugs to calm their nerves).
It does not matter where the alcohol was consumed from or in what form.
The obligation falls on the defence to prove, on a balance of probabilities, that you would not have been over the prescribed limit at the time of the alleged offence. We must also show that the stated alcohol intake could account for the evidential breath reading provided. Once the defence have discharged this burden of proof, the CPS must then disprove it beyond all reasonable doubt.
Expert evidence will be crucial. M.A.J. Law work closely with a number of highly respected expert witnesses, toxicologists and forensic scientists. The expert producing the report will consider all the factors that will affect alcohol elimination and absorption (such as height, weight, age etc...). They will then conduct a “Back Calculation” to determine the levels of alcohol in your body at the time of driving had the ‘post driving’ alcohol not been consumed. This will usually be presented in a Section 9 Report (Criminal Justice Act 1967).
Post driving consumption is a very common defence and must be handled correctly. The courts are growing increasingly suspicious of those who claim to have consumed alcohol after driving for no apparent reason. The success of this defence will often rest on the credibility of the individual relying on it and, of course, the legal team representing the defendant.
Special Reasons
Can be argued in;
- Drink driving cases
- Drug driving cases
- Failing to provide cases
- Drunk in charge cases
- Driving whilst unfit cases
A ‘special reason’ is not a defence but does give the court discretion not to impose a disqualification. A guilty plea must be entered to the offence before a ‘special reason’ argument can be advanced. Driving in an emergency, short distance driven, spiked drinks, reflux are all special reasons that can help a defendant avoid a disqualification.
Next Steps
You will probably be aware that we have a great deal of success in defending drink and drug driving cases. In fact, many of our cases are won before going to trial. This is because the CPS has an on-going duty to review cases. If, at any stage throughout the proceedings, the CPS feel as though there is no realistic prospect of a conviction, it cannot continue with the prosecution.
Our aim when challenging drink and drug driving cases it to persuade the CPS to throw your case out. Drink driving defences can be complex and confusing. Some defences may not apply to your circumstances. We would always advise speaking to a member of our team who can discuss your specific case in detail.
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