|Drivers blowing below 40 microgrammes will not be charged|
Wednesday, 15 July 2015
Police in Devon and Cornwall have been criticised after a driver was allowed to continue driving despite failing a roadside breath test. Although it is normal for the press and campaigners to talk about drink drivers as if they were all murderers intent on killing everybody they see, we at London and Oxford Drink DrivingSolicitor think that the police got it right on this occasion.
In the past, roadside breath tests were crude and could only tell a police officer if somebody was under the limit or over the limit – although some also had an amber warning for those close to the limit. Modern roadside breath test units are far more sophisticated and, if the government gets its way, may soon replace the aging police station intoximeters.
Modern roadside breath test equipment is capable of providing officers with a precise reading of the alcohol in a driver’s breath and are considered to be as accurate as the police station evidential intoximeters. The main difference is that the roadside units lack other features of the intoximeter, such as the ability to detect mouth alcohol and there are differences in the way the machines look for the deep lung air that is key to obtaining a reliable specimen.
The driver in question is said to have provided a specimen of just over the drink driving limit of 35 microgrammes of alcohol in 100 millilitres of breath. No precise figure has been published; however, we assume that it was below 40 microgrammes. We assume this because in 1983 the Home Office published its Circular number 46/1983, which states that because there is a margin of error with all breath test machines, the police must not prosecute where the level of alcohol in breath is “… less than 40 micrograms (sic)”. The reason given for this is to, “… ensure that any offender prosecuted will have a result in excess of the prescribed limit.”
The Circular means that had the driver in this case blown less than 40 at the police station the police would not have been able to prosecute.
In the Devon and Cornwall case, the police officer was advised by another police officer to wait 30-minutes and then re-test the driver. This appears to us to be an excellent use of time as a diagnostic tool. If the driver’s blood alcohol level was rising then he would be likely to provide a higher reading after 30-minutes and could have been arrested. If, as happened, the later test provided a lower reading then it would be obvious to the police officer that the driver could not be charged with any offence and so arresting him could not be necessary and thus any arrest would be unlawful!
As always, if you have been accused of a drink driving offence and would like advice and representation in court, whether it’s for a trial or just to help you get the lowest possible sentence, you can call the London Drink Driving Solicitor on 020 8242 4440 or in Oxford and the Thames Valley on 01869 866 490.
Monday, 13 July 2015
|Drink driving offence aren't child's play|
As a solicitor specialising in drink driving offences I generally encounter three types of potential client. The first want to get off at all costs, often it’s because the fact of a conviction will ruin their lives whether it’s because it messes up their overseas travel/work or because they will lose their job here in the UK. The second type isn’t too bothered about the conviction but wants to keep their driving licence despite it – again this often motivated by a desire not to lose one’s employment. The third type are, in some ways, the more interesting; they are the people who want to plead guilty.
I’m often asked by people in the third category, “if I’m going to be banned from driving anyway, what can a solicitor do for me?”
|Some "advisers" make me wonder if|
you're not better asking the court
cat for legal advice and representation
I understand why people aren’t sure – in fact in a recent Twitter conversation with a fellow solicitor I was told that he (or she, I know not which) attends court in drink driving cases but rarely has much impact on the outcome of the case. I was surprised to hear that because there is a lot a solicitor can, and should, be able to do for somebody who is pleading guilty.
For me, the case begins before we get near the courtroom. While I cannot give definitive advice until I have seen the prosecution evidence, I can give fairly precise advice based upon your instructions. I can begin to identify the potential mitigating factors that will help reduce your sentence. I can also talk you through the court process and what to expect – something I find worries a lot of people.
A first time offender who is normally a responsible person can help herself a lot by obtaining character references. These won’t make a massive difference by themselves, but they will form part of the mitigation that helps convince the court that this incident is out of the ordinary for you.
Before the hearing
By the time we get to the morning of a first appearance in court, I would hope to have met my client a week or so earlier and to have discussed the options with him. On the morning, I will go through the prosecution evidence looking for errors, omissions or facts that do not add up. I will also be looking for evidence that can be excluded. The point being that before you enter your guilty plea you really understand the case you are facing and whether there is any defence whatsoever. It’s also important to remember that sometimes the prosecution evidence can be used to help your mitigation and finding those helpful points is a key service your solicitor will provide.
Ensuring that every client has the best advice on their prospects of winning a trial is a very important part of the defence solicitor’s job. Our justice system is adversarial, meaning that the prosecution must prove the case against the defendant – if they cannot then the defendant is not guilty. Some people do not like that fact, but it’s been our justice system for better part of 1,000 years, so if you don’t like it then I suggest you petition your MP to change it.
It is sometimes claimed that the court’s legal advisor or the duty solicitor will help unrepresented defendants – don’t count on it. A duty solicitor is only there to help defendants facing a prison sentence and will not get involved in most drink driving cases. So far as legal advisors are concerned, let me put it this way: I witnessed a defendant in court today accused of ignoring a prohibition notice plead guilty then put forward mitigation that was clearly a defence. The legal advisor simply ignored this contradiction and allowed the bench to sentence him (and seize his motorcar into the bargain). Not really the sort of help you want.
At this stage, some people change their minds and decide to plead not guilty. In a recent case, I represented a client who had planned to plead guilty; however, at court it was clear that the prosecution could not prove that my client had been driving at the time a collision took place. The prosecution had three-months to consider their position and at trial their still could not prove my client was guilty so he was acquitted. Again, if you’re one of the people who don’t like how our justice system works then don’t tell me; tell your MP.
During the hearing
Assuming that after we have discussed your case you are still intending to plead guilty we will head into court for the hearing. By now, I will have a very good idea of what happened to bring you to court and why it happened. I will be able to highlight all the mitigating factors and deal with any aggravating factors.
After the prosecution have set out their case to the magistrates, I will set about mitigating on your behalf. Mitigation has two very broad headings, first is mitigation relating to the offence – such as why your actions are not as serious as the prosecution say they are. The second is personal mitigation, one of the aims of which is to engender some sympathy for you from the court – so it may focus on our family, your work, both or something entirely different. I am a great believer in knowing your audience so I do my best to watch the magistrates before my case is called on to get a feel for what sort of arguments are likely to work and, which are doomed to failure.
Depending on the circumstances, I will often include a discussion on the law as part of my mitigation speech. A common example, is in asking the court to reduce the length of the driving disqualification. Most solicitors say that the length of the ban cannot be reduced; however, I take the view that the law does allow a reduction and I get my way more often than not (in fact only two courts have ever refused to allow the reduction after I have set out my grounds for it).
Many articulate defendants can successfully put their own case to the magistrates without a solicitor and I have been instructed simply to advise on how defendants should structure their mitigation speech in the past. However, one thing most defendants will struggle to do is spot when the judge is exceeding his or her authority. In March, I dealt with two cases within a week of one another where the District Judge in one case and the magistrates in the other imposed a sentence wholly incompatible with the sentencing guidelines. Obviously, I was able to spot the errors quickly, address the bench and cite the appropriate law so as to convince the court that it was exceeding its powers.
After the hearing
It is very important that you understand exactly what has happened in the court room because it can have a big impact on you in future. So, after the hearing I will always discuss the case with my clients after the hearing to make sure they understood what was said by the court and what that means for them.
What impact can your solicitor have on the outcome?
Instructing the right solicitor who understands the very specialised law surrounding drink driving offences can have a big impact on the outcome of your case.
We’ll briefly look at a couple of recent cases to see what impact a solicitor can have on your case. In the first, the defendant had no previous convictions, was a family man and a business man who had been out with friends and thought he was being sensible by only drinking two glasses of wine when his friends consumed far more. It was clear from speaking to him that he did not think anything to do with his personal life was relevant and so would not have told the court about it had he been unrepresented. In fact, I took the court through the circumstances of the offence, explained to them about his family life and his business. I was able to build an honest picture of a responsible man who had made a mistake and who was genuinely remorseful for his actions. The court indicated that the correct starting point was a fine totalling 150% of his weekly income and a 16-month driving ban. After hearing the mitigation they reduce the fine to 50% of weekly income and a 12-month ban. They further reduced the ban to 9-months upon completion of the drink driving rehabilitation course.
In the second case, the defendant had been caught drink driving following an accident and had provided a specimen of breath that showed a very high reading, which meant that the court must consider imposing a community order – that will usually involve unpaid work and a curfew with electronic tagging device. Because there were some previous conviction, albeit unrelated to drink driving, we were not going to be able to argue that this person was normally a responsible individual. Instead I conducted the sentencing hearing myself and attacked the aggravating features where possible. I relied upon a great deal of case law and argued that a community order with a curfew would prevent this person from continuing in his current job. The court indicated that the correct starting point was a community order with unpaid work and an electronically monitored curfew. After much persuading the court agreed that the defendant should be fined for this offence rather than receiving unpaid work and a curfew.
So, in conclusion: what can a solicitor do for somebody pleading guilty?
1. Reduce the sentence you receive at the end of the case;
2. Help settle your nerves about the hearing;
3. Ensure your case is fully prepared for every eventuality;
4. Give you expert advice on the evidence against you;
a. Whether there is a defence;
b. Whether the evidence can help mitigate for you
5. Give you expert advice on the law to get you the best result possible;
6. Provide convincing and persuasive advocacy on your behalf; and
7. Rectify any mistakes by the court before they cause you a problem.