Halfords Boss sent to prison for drink driving a gold buggy in Norway: would he be convicted in the UK?

Jonny Mason convicted in Norway

The chief finance officer at Halfords, Jonny Mason, has been sentenced to two weeks’ imprisonment, a £12,000 fine and a two-year driving ban after he was caught drink driving a golf buggy on a private golf resort under 10kph. Would he be convicted here in the UK and, if yes, would the sentence be as harsh?

What’s needed for a conviction? The prosecution must prove a few things to secure a conviction:

1.       D drove;

2.       The thing that D drove was a motor vehicle;

3.       The driving took place on a road or public place;

4.       At the time D drove he was over the drink driving limit.

In most cases, some or all of these points are uncontested but Mr Mason’s case is interesting because it raises issues on points that aren’t considered in most cases.

First we need to ask was Mr Mason driving? “Driver” is a common word and the law defines it more or less according to its dictionary definition. Things may seem more complicated in a golf buggy where two people can operate all or some of the controls at the same time. But that does not trouble English law where the courts have recognised since the 1970s case of Tyler v Whatmore that two people can drive the same vehicle at the same time. So, if Mr Mason were exercising control over the vehicle using any of the controls he would be a driver.

Next we consider whether a golf buggy is a motor vehicle. When people think of drink driving, I suspect that cars, motorbikes, vans and lorries are the first things that come to mind not golf buggies. Section 185 of the Road Traffic Act defines “motor vehicle” to mean “a mechanically propelled vehicle intended or adapted for use on roads”. Having conducted some research, it seems that golf buggies are not usually intended for use on roads, although some can be adapted for such use on a limited basis. By the way, I’ve also discovered that a second-hand golf buggy costs around £4,500+VAT – for less money you can get a well-used Yamaha R1, I know which one I’d prefer! Assuming that this golf buggy was not adapted for use on the road then the prosecution’s case would fail as they would not be able to prove that Mr Mason was driving a motor vehicle.

It should be noted that although he would not be guilty of drink driving, an astute prosecutor would want to consider the possibility of a charge under section 12 of the Licensing Act 1872, which criminalises drunkenness when in charge of a “carriage, horse, cattle, or steam engine”. This charge is very rare and so we won’t go on and consider whether a golf buggy meets the definition of a carriage (I’m assuming none run on steam power and nobody thinks they are horses or cows), we’ll just assume it is a carriage. To commit an offence under the 1872 Act, a person must be in charge on a highway or public place, which is convenient since that’s very similar to the requirement under the 1988 Act.

Is a golf course a “road or public place”? I find that this is the question that trips up most non-lawyers most often. There is a common belief that motoring law ceases to apply the moment you enter privately owned land. This is very far from the truth. A common example of this belief in practice are parents who take their children to a car park for early driving licence believing the child does not need a licence or insurance because the land is private. We should draw a big red line under this myth – it is not true! The question is far more complicated and ownership of the land is only one small part of the answer. You must also consider who has access to the land such as whether it is open to the public at large. In one case, I successfully argued that my client was not guilty of drink driving because the land he was on was only open to a subset of the public and not the public at large. A simple question to ask is whether you could walk across the land to get from point A to point B where both are public places. If the answer is “yes” then it is likely to be a public place. If the answer is “no” and the land is privately owned then it is probably not a public place.

Based on the report in the newspaper, I doubt whether Mr Mason was on a “road” for the purposes of the 1988 Act, which defines a road as “any highway and any other road to which the public has access and includes bridges over which a road passes”. The report says he drove from a beach bar, which seems unlikely as there do not appear to be any beaches near the resort. But, assuming the bar was within the resort then it will not be a highway to which the public has access.

So, in Mr Mason’s case we would have to ask whether the golf resort is open to the public at large. If it is only open to members and their guests, then it is not open to the public at large. Additionally, if there is no route across the land that a person could take to get from A to B then it is very likely that the golf resort is not a public place and so no drink driving offence could be committed there.

I assume Mr Mason accepts the alcohol reading and so there’s no point considering that.

Therefore, we can see that had this happened in the UK, it is very unlikely that Mr Mason would have committed an offence because a. his vehicle is not a motor vehicle; and b. even if it were his driving seems have taken place on land not open to the public.

Nonetheless, in Norway it seems that his actions were a criminal offence – no doubt much to his surprise. But, had he been convicted here what would his sentence be?

Without knowing the level of alcohol in Mr Mason’s system it is difficult to be precise on the sentence. But we can have a go at working it out. In Norway, prison becomes an option when a person is double the drink driving limit, which in Norway is 20mg per 100ml of blood. Here in England and Wales it is 80mg, in Scotland it is 50mg. We know that Mr Mason was sentenced to two weeks’ imprisonment, which we can assume means was at least double the limit, so we’ll use that as a comparison.

Had he provided a specimen with 40mg of alcohol in 100ml of blood anywhere in the UK, he would not have been prosecuted. Had he been double the limit in England and Wales he would be looking at a fine of a week and a half’s wages plus a driving ban of between 17 to 22 months. I have no reason to think he is not a man of good character so there would be no likelihood of his going to prison.

Given the speed, distance and low risk to other road users, he might have attempted to argue that there was a special reason not to disqualify him from driving at all, in which case he would have escaped with ten penalty points.

So, we can see that in the UK, Mr Mason's actions would not have been a crime. But, had he somehow been convicted he could have avoided the driving disqualification altogether. If you find yourself facing an accusation of drink driving (whether it’s a golf buggy or a car), call the experts at London Drink Driving Solicitor on 020 8242 4440 for specialist legal advice.

Reduction in driving ban: a case study

City of London Magistrates' Court

In a recent case, Nick Diable of London Drink Driving Solicitor, defended Mr S, who was accused of drink driving at the magistrates' court.  Mr S made it clear that he would be pleading guilty and would like some help reducing the length of the disqualification.

Mr S had been seen by police jumping a red traffic light and, when stopped, was found to be over the drink driving limit.  Mr S was arrested and taken to the police station where he the Evidential Breath Machine showed he had 74 mg of alcohol in 100 ml of breath, which is a little over twice the drink driving limit.  A first time offender should expect a driving ban of between 17 and 22 months upon conviction for a reading at that level.  Mr S's offence was aggravated by his jumping the red traffic light.

Mr S was advised to get character references that would show he is a responsible man who doesn't normally commit crimes.  S felt unable to approach anybody because he was genuinely ashamed that he had got behind the wheel while over the drink driving limit and couldn’t bring himself to tell people outside his immediate family - for obvious reasons immediate family are not the best character referees.

To his credit, Mr S had only driven a very short distance because he had quickly realised that his actions were a danger to others so had already ceased driving by the time the police followed him around the corner to stop him.  Nick was able to convince the court that as this offence was committed in the early hours there was nobody else about and so even though S jumped the red light there had been very little danger to other road users before S decided to stop driving.

S was genuinely ashamed of his actions and remorseful that he could have put other people in danger, even though he did not actually do so.  

After telling the court about the offence and S's attitude toward it, Nick told the court that they should reduced the driving ban to reflect both the mitigation and S's guilty plea.  This can be a difficult argument as many lawyers, judges and magistrates take the view that the driving ban is an ancillary order and not part of the sentence.  This means that it cannot be reduced to reflect a guilty plea and mitigating the length of the ban is much harder.

In this case, the magistrates’ accepted Nick’s submissions and agreed that the disqualification should be reduced both in light of the guilty plea and following the mitigation put forward by Nick on S’s behalf.

As a result, S was fined and disqualified from driving for 12 months.  He was allowed to take the drink driving rehabilitation course, which will further reduce his driving ban to 9 months instead of the starting point of up to 22 months.

Can liquor chocolates put you over the drink driving limit?

Liquor chocolates can result in very high alcohol readings on police breath tests

With Christmas nearly upon us the UK’s consumption of tiny chocolates filled with one type of booze or another is about to skyrocket.  As a specialist drink driving solicitor, one question I have been asked a few times over the years by friends and family is whether it is possible to eat so many liquor chocolates that you exceed the drink driving limit?

In England and Wales, the drink driving limit is 35 mg of alcohol per 100 ml of breath.  The number of drinks it takes to reach the drink driving limit depends on how strong the drink it, how heavy you are, how tall you are and whether you are a man or a woman.

In 1999, two researches named Hylen and Jones ran a small experiment with three participants who had not consumed alcohol prior to the experiment.  The aim of the experiment was to test whether the alcohol from two liquor chocolates could affect a breath test like those used by the police.  The results showed categorically that yes liquor chocolates do have a massive impact… but only for a very short amount of time.

One minute after eating the chocolates all three volunteers produced extremely high readings – the highest being 87 mgs per 100 ml of breath or nearly two and a half times to the drink driving limit!  At two and a half minutes the highest reading had fallen to 24 mg per 100 ml, which is below the drink driving limit.  By the time of the last test six minutes after eating the two chocolates the highest reading produced was just 5 mg per 100 ml.

In 1984 a researcher called Pribilla decided to give five lucky volunteers an early Christmas present – each volunteer was given one hour to eat as many brandy chocolates as they could shovel down their gullets, Pribilla administered a breath test 30 minutes after the last chocolate was eaten and then proceeded to take blood samples every 30 minutes for two hours.

Pribilla failed to detect any alcohol in 3 of the volunteers and in the other two found just a trace level of alcohol.

So, can liquor chocolates affect a breath test at the police station?  In the very short term, yes they can have a massive effect.  In the middle to long term no they will have no impact whatsoever… except that if you eat too much chocolate you’ll feel sick, as all five of Pribilla’s volunteers did.

Should you find yourself accused of drink driving this Christmas you can get expert legal advice from a specialist drink driving solicitor by calling 020 8242 4440.

Heartburn and drink driving

Up to 12.8 million people in UK could be at risk of false high alcohol readings
as a result of chronic heartburn

Drink driving convictions usually rely on a breath test to prove that the driver was above the drink driving limit.  An interesting problem arises when somebody who has drunk a small amount of alcohol provides a specimen of breath but brings up gas from their stomach at the same time causing a false high alcohol reading.

In researching this topic I’ve seen judges call this stomach gas all kinds of things like “heartburn”, “air”, “eructation”, “burps” and “mouth alcohol”.  Whatever you choose to call it quite clearly if you have been drinking and bring gas up from your stomach there is every chance that it will contain some of the alcohol that is still in your stomach.  If you happen to be providing a specimen of breath when this happens, then it is entirely possible that some of the alcohol from your stomach will be blown into the machine and give a false reading that does not reflect how much alcohol is actually in your breath.

This is a bigger problem than you might think.  Research has shown that 20% of the US population suffer chronic heartburn with symptoms appearing at least once a week while 7% have daily symptoms.  If that holds true in the UK that would mean there are 12.8 million people who may find themselves giving a surprisingly high alcohol reading at the police station.

You would think that if the specimen of breath does not accurately reflect the amount of alcohol in your breath that the test would be unreliable and so you would have a defence.  Unfortunately, this is not how the courts see things.  In the case of Zafar v DPP, the court was asked to define the word “breath” and it came to a rather surprising decision.  The court ruled that “breath” means “air exhaled from any thing”.  With respect to the court that is a nonsensical definition – breath is air exhaled from the lungs of a living creature – that is the definition given by the Oxford English Dictionary, despite what the court claimed in Zafar.  It cannot include air exhaled from other bodily orifices, nor can it include air exhaled from something that is not alive.  Nonetheless, the court’s definition could easily include flatulence and I seriously doubt that the court would agree somebody was trying to provide if they farted into the Intoximeter.

This bizarre definition was upheld by a subsequent court in the case of Woolfe v DPP, which means that we are probably stuck with this nonsense until another case reaches a higher court in the future.

Because the court has said that gas from the stomach counts as breath the fact that you brought up additional alcohol from your stomach would not give you a defence to drink driving.

But, all is not lost because if you are one of the many people who suffer chronic heartburn (properly known as gastro-oesophageal reflux disease) and you do produce a false high reading then you can rely on your condition to provide you with a special reason to avoid the disqualification that normally follows a drink driving conviction.

In the case of Ng v DPP, O Sang Ng pleaded guilty to drink driving and argued that he should not be disqualified as his chronic heartburn amounted to a special reason not to disqualify him.  The District Judge refused his case saying that the raised level of alcohol in Ng’s breath was special to Ng not to the offence (special reasons must relate to the offence not the offender) and that Zafar v DPP prevented the judge taking account of the false high reading caused by the gas from Ng’s stomach.

The High Court re-considered Ng’s case and ruled that the district judge was wrong on both counts.  First, the High Court said, “the evidence upon which the appellants sought to rely went directly to the commission of the offence. If accepted it could provide an explanation as to why the level of alcohol in the appellant's breath exceeded the prescribed level” – so heartburn explained why Ng provided a specimen over the limit; it related to the offence not the offender.

Next, the High Court considered whether the district judge had got the law right when she considered the case of Zafar.  Again, the High Court ruled that the district judge had got the law wrong and that Zafar’s case did not prevent somebody relying on chronic heartburn to keep their driving licence.

So, while a rather peculiar interpretation of the English language will prevent you relying on chronic heartburn as a defence (even where you were not actually over the limit or impaired); a sensible interpretation of that peculiar case means that you will still be able to keep your driving licence.

If you have been accused of drink driving and need legal advice from an expert solicitor who specialised in drink driving law then contact the London Drink Driving Solicitor on 020 8242 4440.

Lowering the drink driving limit

Drink driving arrests have fallen but some want to see a US style of enforcement
aimed at preventing persistent drink drivers from consuming alcohol

Currently, the drink driving limit is set at 80 mg of alcohol per 100 ml of blood.  There’s no way of saying how much alcohol consumption that equates to but the safest rule is not to drive after you’ve had a drink.

I encounter a lot of people who drink, believe they are under the drink driving limit and then drive home – or who get up in the morning thinking that the alcohol will have been eliminated from their system.  It’s hard to judge the point you’ll exceed the limit.

At the recent Police Federation conference, speakers called for a reduction in the drink driving limit for England and Wales to reflect the lower limit in Scotland where an offence is committed if you drive with 50 mg of alcohol per 100 ml of blood.

The main driver behind this change has been the increase in women drink drivers over recent years relative to offences committed by men.  Chief Inspector Victoria Martin told the Daily Telegraph:

“We’ve seen a steep decline in men drink driving over the years, with targeted advertising campaigns, which is great, but women don’t seem to be getting the same message. 

"It seems we have a worrying trend, with females still flouting the drink driving limit, sometimes scarily unaware, putting themselves and others in danger as well as adding to the drain on police resources.”

Drink driving convictions among women
remain stubbornly high

The call by the Police Federation was backed by Northumbria’s Police and Crime Commissioner, Vera Baird, who is a former MP and former Solicitor-General for England and Wales under Gordon Brown.  In London, too there is a strong and persistent campaign to get tough on people accused of drink drivers with Mayor Boris Johnson (who is also effectively Police and Crime Commission for London) attending anti-drink driving campaign rallies as long ago as 2008 and the head of the Metropolitan Police calling for a US style system that prevents drink drivers getting drunk:

"One of the local district attorneys decided that instead of trying to stop drunk drivers driving, why not stop the driver getting drunk,

“If you got convicted of a drink driving offence, [then] twice a day you get tested for drinking and that had a massive impact on road safety, people did not go out and kill people on the roads.”

In Thames Valley, the police recently cracked down on drink drivers and arrested 273 people in the space of a single month.

Over the past few years, magistrates’ courts have become much tougher on drink drivers.  Not so long ago, a first time offender could almost be guaranteed the minimum 12-month disqualification if he pleaded guilty; however, the courts have adopted a much stricter approach.  This means that they are very reluctant to reduce disqualification periods for first time offenders without significant mitigation being put before them by the driver’s solicitor.

It is clear from both the rhetoric emanating from the Police Federation and Police and Crime Commissioners that there is an appetite for toughening up the law on drink drivers.  This is reflected in police crackdowns and the much stricter sentences handed down by sentencing courts.

England and Wales will follow Scotland in reducing the drink driving limit there is no doubt about that.  The only question is when it will happen.  While it is not a priority for this government, don’t be surprised if David Cameron sees political capital to be gained by showing he is tough on crime and ordering a crackdown on drink driving offences, including a reduction in the drink driving limit, by the end of this Parliament.