Christmas Drink Driving Snowballs

It's nearly Christmas time and with Christmas comes the Government's annual don't drink driving campaign.

This year they are highlighting the drink driving snowball effect.  While a Drink Driving Snowball sounds like it might be a nice cocktail it is in fact the process by which a decision to drink and drive leads to arrest, court appearance, conviction, loss of driving licence and then snowballs into a loss of job, loss of home and the break-up of the offenders family.

It sounds dramatic, but many employers do require you to hold a valid driving licence, meaning that if you lose yours you put your job at risk even if you don't regularly drive for work.  From there it's quite obvious how that can progress to the other consequences.

There is also a further problem for anyone thinking of changing jobs.  The employer to whom you are applying may require you to disclose your convictions and a drink driving conviction will make it much harder for you to find work.

You can read the Government's press release here.

Your best chance of avoiding a drink driving conviction is not to drive after drinking alcohol, but life isn't always like that.  If you are arrested for drink driving, failing to provide or being drunk in charge then call an expert drink driving solicitor and give yourself the best chance of avoiding the snowball effect this Christmas.

Drunk in charge

In some parts of the world a drink driving conviction is reasonably easy to escape, for example in Texas the police can only ask you to provide a specimen of breath for analysis but if you refuse there's nothing they can do about it! How easy is it to escape a drink driving conviction there, uh?

In the UK, sadly, it is quite different. If the British police suspect you of drink driving they can require you to take a breath test.  Failure to co-operate is a criminal offence and the punishment is as harsh as if you had been convicted of drink driving.  In fact in the UK you don't even have to be driving to get yourself convicted of a drink driving offence! Being drunk in charge of a motor vehicle is an offence in the UK, which can be just as serious as drink driving itself.

At first glance it appears that everybody in the UK who owns a car and drinks alcohol has been drunk in charge at some point in their lives! Because the offence is simple, if you are unfit to drive and you are in charge of a motor vehicle then you commit an offence. So, potentially if you are sitting in your living room after a few drinks and your car is outside then you have committed the offence.

Now that would be entirely silly, which is why there is a defence that protects innocent home-owning drunks from being guilty of criminal offences while minding their own business. The defence is simple, you are not guilty of being drunk in charge if there is no realistic prospect of you driving the motor vehicle. Clearly if you are at home indoors the police cannot overcome the defence and so you are not guilty.

Problems arise though when people have a bit to drink and decide to sleep it off in their cars. It's usually cold when this happens - because it's night time and you are drunk - so you switch on the engine to warm the car up. You may have no intention of driving, but if the police find you they will arrest you for being drunk in charge and you are very likely to be taken to court.

Many people think that they will be okay if they don't switch the engine on and instead curl up on the back or passenger seat. But, the police will still try to get you. Because they know that come the morning you will get into the driver's seat and drive home, at which point you will probably still be over the drink driving limit. The police will tell the court that you should be convicted because you were in charge, you were drunk and there was a high likelihood of your driving while still over the drink driving limit.

The leading case on this point involves a very drunk man who returned to his car. He attempted to get into the passenger seat but was so drunk that he simply could not open the door. A few hours later he was found sleeping propped against the car's rear wheel, keys on the floor next to him. He argued in court that he was not guilty of being drunk in charge because he was so drunk that he was incapable of standing, let alone driving and thus there was no likelihood of him driving the car. The court agreed with him; however, they concluded that it was probable that he would have woken up, still over the drink driving limit, and driven home. He was convicted. This teaches us two things:

1. If you are going to sleep in your car make sure you call a sober friend to pick you up in the morning before you go to sleep so nobody can say you will wake up and drive; and 
2. get a decent drink driving solicitor!

The penalty for being drunk in charge is currently 3-months imprisonment and a fine of up to £2,500. The court must consider a driving ban but if it chooses not to ban you then it must impose 10 penalty points, which is sufficient to cause a totting up driving ban for most people.

Special Reasons

When a defendant is convicted of drink driving the court is required by law to disqualify him from driving for a minimum of 12-months.  There is no discretion, the driving ban must be imposed.

Special reasons arguments are a legal device that turns the obligatory driving ban into a discretionary driving ban.  In other words, if the special reasons argument is successful the court can decide whether or not to impose a driving ban.  If courts find special reasons exist then more often than not they will not ban the defendant from driving.

A common special reason is "emergency", this is intended for situations where life or limb is at risk.  The typical situation might be a specialist doctor or surgeon rushing to perform a life-saving treatment that nobody else can perform.

Today, we successfully argued that a plumber travelling to stop sewage leaking into a home was an emergency capable of being a special reason.

Unfortunately, the client did not keep his licence on this occasion as the court decided that he had not fully explored other ways of getting to the emergency other than driving while over the drink driving limit.  Had he done so, it appears that he would have kept his driving licence.

This just goes to show that "emergency" is not a fixed term and that there may be room for further development of the law on this point.

Christmas Drink Driving

This Christmas has seen 1,230 people arrested for drink driving across London according to London's Met Police.

Surprisingly the police report that more people are found to be drink driving in London between 6am and 11am (5 hours) than immediately after the pubs close between 11pm and 1am (2 hours).  This is no doubt because many people fail to realise that they can be over the drink driving limit when they wake up after drinking alcohol the night before.

This year the police in London have been stopping drivers almost at random and conducting breath tests.  As well as the normal breath tests the Met Police have also been conducting drug impairment tests, which aim to detect drivers who are unfit to drive because they have taken drugs, which could be anything from medicine you pick up at the chemist through to heroin or cocaine.

London based Met Police Chief Inspector Nick Hancock made it very clear that the police in London are out to get anybody suspected of drink driving and that they view it as a serious offence.  He said, "It is important to remind all drivers that regardless of the time of day they are caught - be it when they are taking children to school, popping to the shops or coming back from work - they will face the same serious consequences as someone who has chosen to drink heavily and driven at night. Ignorance about the drink drive limit is not an excuse that will stand up in court or change the outcome of a serious road accident caused by drink or drug driving."

He went on to say, "The tragedy is many well-meaning people who are very conscious of drinking and driving are hopping behind the wheel in the morning when they are over the limit and therefore unsafe to drive. Drinking the night before will impair their driving, make them unfit to drive and over the limit. This could cost them their job through - a loss of licence or a prison sentence - as well as endangering their own life and that of other road users."

The message is clear.  If the police think you were drink driving in London they will do all they can to prosecute you and, if possible, send you to prison.  But, you don't have to accept that the police are always right or that prison or a loss of a driving licence is inevitable.  Contact London Drink Driving Solicitor today and get a real expert solicitor on your side.

Can police conduct random breath tests?

The simple answer is no, the police cannot conduct a random breath test unless they suspect you of drink driving, you have committed another driving offence or you have been involved in an accident.

Nonetheless, a lot of people are confused about the lawfulness of random breath testing at the side of the road and most people simply do not understand their rights.  

The confusion arises because people do not appreciate the distinction between the police power to stop traffic and the police to administer a roadside breath test when they suspect somebody of drink driving.

Anybody who has a driving licence in the UK should realise that they must stop if a police officer in uniform tells them to stop.  We know this to be true because section 163 of the Road Traffic Act 1988 tell us that it is a criminal offence not to stop when directed to do so by a police officer in uniform.

Because the power to stop vehicles is not tempered with any tests or justification that must exist prior to the stop being lawful it is possible for police to conduct a random stop on any vehicle they like.  But, section 163 does not give the police any other power once they have stopped you, so they still need to rely on some other power before they can require you to take a breath test.

The only power they have to require you to take a breath test is contained in section 6 Road Traffic Act 1988, which sets out when a police officer can require somebody to provide a specimen of breath at the roadside.  The s. 6 power requires police officers to either have a reasonable suspicion that you are drink driving or have committed a driving offence or have been involved in an accident.  This means that if police conduct a random stop under s. 163 and then after stopping you form the view that you were drink driving they can require you to take the roadside breath test.

In conclusion, the police can randomly stop you but unless they have some reasonable suspicion that you were drink driving or have committed a driving offence or been involved in an accident they cannot breath test you.

If you have been accused of refusing to take a roadside breath test you can get expert advice and representation from London Drink Driving Solicitors today.

Road side breath tests

If a police officer is investigating an allegation of drink driving on a public road he may require the person he suspects of drink driving to provide a sample of breath at the roadside.  The power to require you to take part in a roadside breath test are governed by section 6 of the Road Traffic Act.  This power actually refers to preliminary tests, which can include things such as breath tests and sobriety tests.  But for ease, we'll just talk about roadside breath tests.

The police do not have a blanket power to require drivers to provide a roadside sample.  This article will look at the circumstances in which the police can require you to provide a roadside breath sample.

When can the police make you take a breath test?

It may sound strange but the police do not have to be investigating an allegation of drink driving to make you take a roadside breath test.  There are four grounds for requiring a breath test, which are contained in section 6 of the Road Traffic Act 1988.

Although we use the word “driving” you should understand that driving in this context means, “driving, attempting to drive or being in charge of a motor vehicle”.

Drink driving

The test that triggers a road side breath test is when a police officer reasonable suspects that you are under the influence of alcohol of drugs.  You'll note that this doesn't mean drunk, incapable or unfit.  Nor does it mean that the officer must think that you are drink driving.  It is a deliberately low threshold intended to limit challenges to the lawfulness of the roadside breath test procedure.

The first reason for requiring a breath test is the police officer has seen you driving and suspects you to be under the influence of drink or drugs.  This reason would usually arise where your driving was erratic or unusual, e.g. you were swerving or driving unusually slowly, etc.

The second reason is that a police officer believes you were driving he can require you to take a roadside breath test.  A common example of this is where a vehicle registered to you is seen driving erratically or committing an offence but is not stopped.  Later, the police come to your home, find the vehicle outside your home and form the opinion that you are under the influence.

Traffic offences

The police may administer a roadside breath test where they suspect you are or have been driving and you have committed a traffic offence.  The police do not have to suspect that you were drink driving or that you were unfit drive in anyway; they do not even have to suspect that you were under the influence of alcohol or drugs.

Road Traffic Accidents

Where an accident occurs “owing to the presence of a motor vehicle on a road” and the police officer reasonable suspects that you were driving, attempting to drive or in charge of the vehicle at the time he may require you to provide a roadside breath test.

The wording of this section makes clear that your vehicle need not be involved in the accident, i.e. you don’t have to have crashed.  It is sufficient if somebody says that the accident occurred because of your car, e.g. you emerge from a junction suddenly causing another vehicle to swerve and hit another car.

Once again, the police do not have to suspect that you are drink driving to rely on this power.

Getting help

You can find out more about breath tests and get help with drink driving allegations from www.londondrinkdrivingsolicitors.co.uk