Thursday, 17 September 2015

Courts make mistakes too

Even judges make mistakes

In Texas, the standard advice given by an attorney to his client is not to provide any specimens of breath, blood or urine for analysis if they are ever accused of drink driving.  This is because Texas has no law criminalising the refusal to provide a specimen; however, in the UK refusing to provide can result in a prison sentence and will always lead to a driving ban… well nearly always.

You see, there are two different offences of failing to provide and the key to whether you lose your licence or not is where the offence takes place.  Refusing to provide an evidential specimen at the police station or in a hospital is a serious offence.  Conviction carries a minimum driving ban of 12 months (you can escape even this driving ban if the court finds a specialreason) and if there is evidence that you were seriously impaired you can end up with a prison sentence!  However, if you refuse to provide a preliminary specimen at the roadside the sentence will normally be a small fine and 4 penalty points.

But, it doesn’t always work out that way.  We at Oxford Drink Driving Solicitor were recently instructed to represent a lady accused of drink driving at the magistrates’ court.  She had a previous conviction from four years ago for failing to provide at the roadside but the list of previous convictions showed she had been disqualified for 18 months and received a fine of nearly £1,000.

Speaking to the client it emerged that she had been represented by the court duty solicitor.  She said that the hearing happened very quickly and she hadn’t really understood what was happening but assumed everything had been done properly.

Having checked the facts it is indisputable that the sentence imposed was outrageously over the top.  You might hope that the magistrates’ legal advisor, prosecutor or duty solicitor would have recognised the mistake and intervened but clearly nobody did.  A solicitor who specialised in drink driving law would have spotted the error immediately and prevented the sentence being passed.

Now, if you have one of a short list of previous convictions within the past 10 years and come before a court to be sentenced for a second drink driving offence the court is obliged to impose a minimum driving ban of 3 years.

The court noted the previous conviction for failing to provide and the length of the sentence before stating the minimum three-year period applied.  If the conviction were for failing to provide at the police station the court would have been correct; however, failing to provide at the roadside is not an offence that attracts the minimum 3 year disqualification.  Once again, neither the legal advisor nor the prosecutor spotted the mistake being made.  Fortunately, Nick Diable was representing the defendant and immediately prevented the magistrates going further and imposing another unfairly long sentence.

If you are facing a court hearing instructing an expert solicitor with experience of the relevant area of law you can avoid becoming the victim of a court mistake.

Thursday, 3 September 2015

Recent case: drunk in charge

Man drink driving with bottle of beer in his hand
Being drunk in charge is a serious motoring offence but you can defend
yourself if you are accused of it

When the police cannot prove that somebody has been drink driving they will often charge with an offence of being drunk in charge of a motor vehicle instead.  The offence is just as it sounds, the prosecution must prove that the defendant was over the drink driving limit and that he was in charge of a car or other vehicle.

Parliament included a defence to being drunk in charge when they created the offence – it is a defence if there is no likelihood of the defendant driving while he remains above the drink driving limit.  In 1989, the Queen’s Bench Division of the High Court heard a case known as DPP v Watkins in which the court said that magistrates should consider the following:

1.       Whether the defendant was in the vehicle – and if he was where inside the vehicle he was – if he were not inside then how far from the vehicle was he;
2.       What he was doing at the relevant time;
3.       Whether he was in possession of a key that fitted the car’s ignition;
4.       Whether there was evidence that he intended to take control of the car; and
5.       Whether any other person was in or near the vehicle at the time.

In our case, the Defendant had been found asleep in his car with the engine running by police officers following a tip off from a member of the public.  He had immediately explained to them that he had not been driving and had decided to sleep in his car because he had got drunk and knew that if he went home it would cause an argument with his wife, which he wanted to avoid.

Despite giving an innocent explanation from the very first moment he awoke, our client was arrested and charged with being drunk in charge of a motor vehicle while the alcohol in his breath exceeded the prescribed limit.

Nick Diable prepared his case and represented him at trial.  As part of the preparation, Nick spoke with the people the Defendant had been drinking with and took statements from the person with whom he left that confirmed that the Defendant had said he intended to walk home and had indeed set off on foot.  Another statement was taken from the Defendant’s wife who confirmed that there had been some problems in their marriage and that she had asked him not to come home after he had a drink.

At the trial, Nick cross examined the two police officers about the events on the morning they found and arrested the Defendant.  One officer initially denied knowing why the Defendant had been in the car; however, Nick got her to admit that the Defendant had immediately explained why he was in the car in some detail – the second officer accepted this had happened very quickly when questioned about it.  Both officers denied knowing how far from the scene of the arrest the Defendant lived; however, in cross examination both were shown a map and identified the scene as being within 100 metres of the Defendant’s home.

Nick questioned the Defendant as to his motives and gave him the opportunity to explain why the car’s engine had been running when the police found him.

At the conclusion of the trial, the District Judge said that the Defendant’s case “could only have been improved if he had been directly outside his own home.”  The judge found the Defendant not guilty and awarded costs in his favour.

If you have been accused of a drink driving offence you can get expert legal advice and representation in the London area from London Drink Driving Solicitor on 020 8242 4440 or in the Thames Valley area from Oxford Drink Driving Solicitor on 01869 886 490