|Can you always tell whether anything has been added to your drink?|
If a person is convicted of (or pleads guilty to) an offence of drink driving the court is required to disqualify them for a minimumof one-year (or three years if the person has a previous conviction within the past 10 years). However, the court candecide not to disqualify if there is a special reason. A common special reason is that a drink has been spiked (or laced if you prefer) with additional alcohol.
The law is relatively straightforward, the case of Pugsley v Hunter tells us that it is for the defendant to prove on the balance of probabilities, i.e. that what the defence says is more likely to be true than not.
Pugsley also gives us a test the court should apply when deciding whether there is a special reason, the three things the defence must convince the court of are that:
1. The drink was spiked;
2. The defendant did not know and had no reason to suspect his drink had been spiked; and
3. But for the additional alcohol the defendant would not have exceeded the drink driving limit at the time he drove.
So far so simple, but how do we prove any of those things? The best evidence is to get the person who spiked the drink to come to court. They rarely get into trouble because most of the time it is done by somebody who doesn’t realise the defendant would go on to drive or it happens inadvertently. If the spiker won’t come to court then we fall back on hearsay evidence – this is evidence that is not normally admissible but can be admitted if the court feels it is in the interests of justice of if the Crown agrees to it being given in court. In very rare circumstances it gets through the backdoor, e.g. in an expert report the prosecution don’t read properly and object to in time.
Evidence of whether the defendant knew or should have known his drink had been spiked can only come from him or her. Usually, the defendant should describe how the drink tasted compared to what he expected and what effect it had upon him after he drank it. It can often be helpful to make a comparison to another well-known drink, e.g. “the spiked drink would be 12% alcohol, so no stronger than an average glass of wine”.
Finally, the defence must prove that the defendant would not have exceeded the drink driving limit at the time he drove but for the additional alcohol. Pugsley v Hunter tells us that in most cases this must be done by expert evidence, the only exception is where it would be obvious to the layman that but for the additional alcohol he would not have exceeded the drink driving limit – such cases are very rare. The expert uses the Widmark formula to calculate the likely blood-alcohol concentration (often called “BAC”) both at the time of driving and at the time the police took their specimen. The additional calculation to the time of the specimen makes it very difficult for defendants to lie about their alcohol consumption and get the amounts correct – this is a fact that courts often fail to appreciate.
The law is reasonably simple in spiked drinks cases, the key is presenting the law in a clear and straightforward way, ensuring that the evidence is gathered correctly and put before the court in the best possible light to support your case. In that respect an expert solicitor who has experience preparing and presenting these cases is the most important thing any defendant can find for themselves.