Clarke Carlisle charged with a drink driving offence

Clarke Carlisle, former Burnley, QPR, Leeds and Northampton player
has been charged with a drink driving offence

It has been reported that Clarke Carlisle, the former chairman of the Professional Footballers Association has been charged with failing to provide a specimen of breath for analysis by the Metropolitan Police.  He is due to appear at Highbury Corner Magistrates’ Court on the 20^th January 2015, although he is currently seriously injured in hospital following a collision with a lorry that was unrelated to the allegation of drink driving.

Since it’s in the news, this seems like an opportunity to explain what failing to provide a specimen is all about.  It goes without saying that none of what follows relates to Clarke Carlisle’s case since we would never discuss an individual case prior to trial when the full facts are not known.

Most people I speak to have the idea that failing to provide isn’t a serious offence – I hear a lot of people saying, “oh but failing to provide isn’t as serious as drink driving”.  If you’ve been charged with failing to provide then the bad news is that it is a serious offence, even more serious than drink driving itself.

Why is it so serious?  Well the simple reason is that if you could get away with drink driving by refusing to provide a specimen then everybody would refuse to provide!  I’m told that in Texas there is no equivalent offence so drivers routinely refuse to provide and are allowed to go on their way; how true that is though I’ve no idea.

Because the courts treat failing to provide more seriously than drink driving it is easy to find yourself facing a prison sentence, which makes getting an expert drink driving solicitor even more important.  Prison becomes a real likelihood (even for a first time offender) if the court decides that you deliberately failed or refused to provide and that you were seriously intoxicated at the time.  This can be a problem for a lot of people because often the reason they fail to provide is because they were drunk in the first place.

The police can require you to provide a specimen of breath if they were conducting a genuine investigation into a drink driving offence.  This means that if you can show they were not investigating such an offence then you will have a defence.  So, if it were impossible for you to drive the vehicle and the police knew that then you may be able to argue that their investigation had concluded upon discovering it was impossible for you to drink drive and therefore they had no power to require a specimen of breath.

Far more common are medical excuses for your failure, such as asthma or some other condition that left you unable to comply with the procedure.  It’s worth remembering that if you can be too drunk to provide and that is a medical excuse!  I have won cases by arguing that my client was physically incapable of providing through being too drunk.  If you are considering running with this type of defence you MUST take expert legal advice from a specialist drink driving solicitor; it’s easy to make things far worse for yourself and a decent amount of the work we do every year is advising people who went it alone or chose the wrong solicitor.

I know that Mr Carlisle’s family will be far more worried about him than any drink driving case at the moment and everyone here at the London Drink Driving Solicitor wishes him a speedy recovery.

If, like Mr Carlisle, you have been accused of failing to provide a specimen of breath (or blood or urine) then you can get expert legal advice from the London Drink Driving Solicitor and by calling 020 8242 4440.

Choosing a solicitor: Part 3 – Trust, commitment, care and attention

It's on a cup so it must be good advice.
But, personally I'd always look a little deeper

This is the third and final instalment of our guide to choosing the best solicitor to handle you case. Part 1 deals with finding a solicitor with the right expertise and part 2 deals with getting the best value for your money from your solicitor.

When you choose a solicitor to represent you it’s important to pick somebody who you can trust to do the work on time, somebody who is committed to your case and who will give your work the care and attention it deserves.

Cuts to legal aid have led legal aid solicitors to change the way they practice law either by diversifying into other areas (thus losing their expertise as they cannot devote their full attention to any one area) or by adopting the “pile ‘em high, sell ‘em cheap” model of practice.

I began my career in a legal aid firm, which needed to bill an average of 50 cases per month to make its monthly target of £48,000 with a staff of 15.  By the time I handed back my legal aid contract in 2011 my firm was having to bill an average of 120 cases per month to make our monthly target of £13,000 (which was our break-even point) with a staff of just three!  The cases hadn’t got easier, in fact with the introduction of tougher court rules they had become harder and more time consuming.  It was obvious that the only way we would be able to meet that target without burning out was to do as little work as possible on each case.  It wasn’t how I was willing to represent people, so I got out of the legal aid market.  Since I got out the legal aid rates have been cut even further meaning firms have to take even more cases per month to make ends meet.

Some private client firms work the same way – charging low fees to attract as many clients as possible then doing the minimum possible work on each case.

What’s the point of this sojourn? It’s to get across the need for you to be able to trust the solicitor you instruct will give your case the full care and attention it deserves.  Ask your prospective solicitor how many ongoing cases he or she is handling at the moment and whether that is a normal level for him or her to operate at.  You should also ask how many hours they expect to spend working on your case – experience tells me that a typical magistrates’ court trial will take between 12 to 16 hours to prepare and present at court.  Crown Court cases can take far longer – the longest case I ever handled took around 300-hours to prepare and that’s not including any court time at all!

If the solicitor has a lot of cases ask yourself will they be able to give your case their full attention?  Is their fee significantly lower than their competitors?  If it is then you have to wonder how it is they can afford to do the work for that price.

Choosing a solicitor: Part 2 – Value for money

Lots of solicitors offer good value for money, find out which suits you

This is part two of our three part series on choosing the right solicitor for you.  Follow the link to read part 1, which deals with finding a solicitor with the right expertise.

They say you get what you pay for and that is just as true of legal services as it is of anything else.  I was recently approached by a lady who was about to stand trial for failing to provide a specimen of breath for analysis – an offence that can easily lead to a prison sentence – her solicitor had only just obtained an expert report that was essential to her defence.  When I read the report I was shocked.  It was by an expert who appeared to have no expertise in the area he was giving evidence about.  He made several basic mistakes that showed he did not understand the area at all.  When questioned, the lady revealed that the firm she had instructed had charged her a total of £915 for their services.  What had she got for her money?  The advice of a paralegal – no contact whatsoever with a qualified solicitor.  She had been advised to pay an expert who was totally unqualified to give advice in her case.  As a direct result of that she eventually accepted that she was going to lose the trial and decided to plead guilty – she had completely wasted her money and lost a very winnable case.

Did she get value for money?  I’d have to say that she did not.

What could she have done differently?  First, she should have shopped around and asked questions of the firms to whom she spoke.  Questions such as: 

1.       Who will act for me?

a.       What are their qualifications?  If they are not a qualified solicitor then ask yourself whether you want to be represented by somebody who is unqualified?  They should be supervised by a qualified solicitor but how often will they be supervised?  How often will a solicitor review your file?  Will a solicitor be in control of your case?

b.       How much experience does this person have of handling your type of case?

2.       When will I meet my solicitor?

a.       If all communication is handled by email or telephone then ask why that is?  Are they a firm that “piles ‘em high and sells ‘em cheap”?  You can’t do that if you are spending time preparing for and attending client meetings.

b.    If you aren't meeting your solicitor then ask what exactly they are doing for you?  Beware of "national" firms with only one office.  If you instruct a firm in Manchester or Devon to represent you in London will they be taking their fee just to pick up the phone to a London based Chambers - which is probably not a specialist set at all - and get them to do all the work?

3.       Who will represent me at court?

a.       In 90% of cases, I will act as the solicitor and advocate for every client – if your solicitor is planning to instruct a barrister then ask yourself why your solicitor won’t represent you – does he or she lack the experience or qualifications?

b.       When will you meet your advocate?  I often hear of people only meeting their advocate on the morning of trial – are you happy to do that?

c.        Many firms like to outsource advocacy to barristers who they may never have met nor seen in court – ask them whether they do that and if, for example, the firm is based in Manchester and your case is in London ask how often they see the barristers they instruct in court?  If their answer is “we instruct him all the time and never get any complaints” then ask yourself if you are happy giving your case to a firm that doesn’t take the time to properly vet its advocates.

You should also ask how the solicitor sees your case taking shape – what will they do?  When will the work be done? 

Once you have asked all these questions you are ready to ask “how much is this going to cost me?”  The more specialist the solicitor the better he or she should be at predicting the cost of your case because they are likely to have seen many cases similar to yours.

Let me be blunt for moment, solicitors are not the cheapest service you will ever buy – there’s no getting away from that fact.  Solicitors cost a lot to employ because we have a lot of overheads in terms of insurance (my firm carries £3,000,000 of insurance per case and have never had a single claim against us), regulation, law updates (I personally receive 80 email updates every month containing multiple cases and new/amended Acts of Parliament as well as regularly attending courses and conferences).  If the price sounds too good to be true then it probably is.  A top city-based commercial solicitor will cost you anywhere from £500 upwards, my own commercial law solicitor charged £350+VAT per hour.  The most expensive legal advice I have ever bought cost me £1,000 per hour!  It can get very expensive very quickly. 

Motoring solicitors are significantly cheaper in comparison to our city-slicking cousins.  I don’t charge an hourly rate; instead I charge a fixed fee per case.  Fixed fees mean you know exactly how much your case is going to cost you and there are no nasty surprises.  It also means that I can agree payment terms with my clients whether that’s money up-front or staged payments over a number of months.  Ask any potential solicitor what their payment terms are and, if you would prefer to pay monthly rather than in a lump sum then do not be afraid to ask.  Do remember to ask whether your solicitor will charge interest on any monthly payments - they shouldn't normally do that.

Once you have all the facts you can sit down and decide which firm offers you the best value for money.  Who is going to do the best job for you at the best cost for that work?  Once you have decided that you can decide who is the right solicitor for your case.

If you do require expert legal advice on any aspect of motoring law then please do contact the London Drink Driving Solicitor on 020 8242 4440.

Next time we will be looking at trust, commitment, careand attention you should expect from a solicitor you employ to work on your case.

Should I take the drink driving rehabilitation course?

Course provider leaflets

Yes.

Okay, so that answer is a little bit short and unlike most answers you get from lawyers it’s not qualified by any if’s and but’s.  Nonetheless, you should always accept the course if it’s offered by a sentencing court.

What is the drink driving rehabilitation course?

It is a course that aims to teach offenders why drink driving is wrong and what the consequences of driving while above the drink driving limit can be both for you and for others.  The course lasts around 16-hours and can be completed in stages, or over a weekend, depending on the options offered by the provider you choose.

What’s in it for me?

Successfully completing the course will entitle you to a reduction in the length of your driving ban.  The maximum reduction is 25% and, to be fair, that is the length that courts usually allow, although the magistrates can direct a shorter period if they so wish.

This means that a 12-month driving ban becomes a 9-month driving ban and a 24-month driving ban is reduced to an 18-month ban.

You’ll also find that some motor insurers will reduce your premium for undertaking the drink driving rehabilitation course.

The AA claim that 99% of people taking their course pass, so I’d suggest it can’t be that hard a course to pass.

Who can do the course?

You can only take the course if you have been convicted of a drink driving offence and disqualified from driving for at least 12-months.  If you have avoided the disqualification because you successfully argued a special reason then you cannot take the course.

The court may offer you the opportunity to take the course; they do not have to make the offer.  Many judges take the view that if you have a high reading or have previous convictions then they will not offer the course.  This is where an experienced drink driving solicitor can help a lot.

Although judges and magistrates don’t like offering the course to repeat offenders or those with high alcohol levels it is still possible to get the course and the disqualification reduction – I know because I’ve managed it for many clients in that position.

Am I committed to doing the course?

You might be facing a driving ban and a loss of income as a result, the last thing you probably want to think about is spending another £150 - £210 on a course but you are not committed to completing the course when you accept the court’s offer.  Although you do have to choose a course provider at court, you are not committed to completing the course at all.  If you do it you get the reduction from the DVLA, if you don’t then you’ll just serve the whole of your sentence.

However, if you refuse the course offer at court you cannot change your mind later on so you will not be able to avail yourself of the discount.

My advice is always ask the court to allow you to take the course and accept if they offer it to you.  You have nothing to lose and maybe a lot to gain.

Don’t be afraid of asking for help if you are facing adrink driving allegation – we are here to help people in your position so feel free to call us on 020 8242 4440.

Choosing a solicitor: Part 1 – Expertise

Choosing the right solicitor is the first step to seeing justice done

In this three part series we will be looking at how you can choose the best solicitor to act for you. We will look at value for money and how to tell if the solicitor you are speaking to is somebody you can trust to give your case the care and attention it deserves.  But in this first part, we will look at choosing a solicitor with the right expertise for your case.

It’s not so long ago that if you needed a solicitor you could pop along to the high street to visit your town’s local high street solicitor – a sort of GP for all your legal problems from motoring offences through to family issues and conveyancing.  These days the law is far more specialised and, to be frank, there is just a lot more law now than in the recent past – in fact during Tony Blair’s time as Prime Minister his Government created more new criminal offences than had been created in the whole history of the UK to the day he became PM!

This has led to some solicitor’s firms becoming specialists in their area in the same way that medical doctors can become expert consultants in particular areas of medicine.  So, it’s important to find the solicitor who has the right expertise to deal with your problem – just like you wouldn’t want a heart surgeon performing surgery on your brain; you wouldn’t want a tax solicitor handling your drink driving case.  I’d also suggest that while your GP may be great at dealing with your everyday health problems he or she will need expert guidance to treat your heart condition; the same is true of legal GP solicitors who cover whole swathes of law with little or no specialist knowledge.

Criminal motoring law is my specialist area of practice, although I have a particular focus on offences that involve alcohol, such as drink driving.  I frequently speak to people who have taken non-expert advice and are convinced that there is no defence to their case or that it is impossible to escape disqualification when nothing could be further from the truth.

Depending on the problem you are facing you should also consider whether you need a local solicitor.  If your case does not involve a visit to court then it may not matter where your solicitor is based.  It is always worth instructing a local solicitor to represent you in court because they will have local knowledge of how the court operates and what the judges are like.  In my own area this is very important because knowing the judge you are facing can shape my approach to a case.  For example, at Barkingside and Romford magistrates’ courts there is a particular judge who despises drink drivers so a wise solicitor will frame his arguments to box that judge into a corner, forcing him to do as the solicitor wants.  At Camberwell Green there is a judge who is very fair and very analytical – solicitors who provide him with precedents from past cases and extracts from Acts of Parliament often get a better result from him.  So, it’s important for your solicitor to know both the law and the judge they are facing.  

It's also worth remembering that if you live in London and instruct a solicitor in Manchester you are probably never going to meet them.  Do you feel confident entrusting your case to somebody you will never meet face to face?

When you come to choose a solicitor, begin by finding somebody who specialises in the area of law you need help with.  Speak with them and ask questions to see if they know what they are talking about – can they suggest possible ways forward for you?  Can they give you an idea what will happen based on the information you give them?  Finally, find out what geographical areas they operate in – many motoring solicitors go an entire case without ever meeting their clients.  If that’s right for you then fine, but if you prefer to have a solicitor you can meet face to face then check you can meet them, at my firm we travel out to meet clients at their home or some place convenient to them; check what your solicitor is offering.

You can get expert motoring law advice - particularly if you are facing an allegation of drink driving - by contacting the London Drink Driving Solicitor on 020 8242 4440.

Next time we will be looking at getting value for moneyfrom your solicitor.

Why use a specialist drink driving solicitor?

I was recently asked to review an excess alcohol (the proper name for drink driving) case conducted by a high street criminal law solicitor.

The client blew 90 microgrammes in breath at the police station but said that this is impossible because he consumed less than two-pints of beer.

The solicitor heard his instructions and advised him to plead not guilty saying that they would prove that the intoximeter used by the police was faulty.  Much evidence was gathered, costing the client a substantial amount of money, but all of it tended to show that the intoximeter was functioning correctly.

There are times where arguing that the intoximeter is unreliable is a good idea, but not in this case.  Had the solicitor known what to look for, they would have realised that on his own account of the night’s events the intoximeter was highly likely to be functioning correctly.  This could have saved the client well over a thousand pounds in lawyers and expert fees.

My review concluded that the correct advice in this case was to plead guilty and argue that there is a special reason not to disqualify.  Had this advice been given at the very start the client would have saved a substantial amount of money, received a full reduction in sentence for his guilty plea and would have kept his driving licence.  Unfortunately, he did not go to a specialist in the first place!

Can police use any blood given at a hospital in a drink driving case?

Can the police use any sample of blood taken from a suspect as part of their investigation into a drink driving or excess alcohol offence?

A common scenario we at the London Drink Driving Solicitor come across is a driver is arrested on suspicion of driving with excess alcohol.  He or she is taken to hospital for one of any number of reasons and, while there, a doctor or nurse takes a specimen of blood from them as part of the diagnosis/treatment.

Often, the police are unable to require the person to consent to providing a specimen of blood for alcohol analysis as part of their investigation due to the ongoing treatment the person is receiving.  By the time the police can make the request, several hours may have passed meaning that the alcohol reading will no longer reflect the level of alcohol in that person's system when they drove.

The question then arises whether the police can legitimately use some or all of the sample of blood taken by the medical staff as part of the diagnosis/treatment?

The answer is found in section 15 of the Road Traffic Offenders Act 1988, which deals with the use of specimens that have been taken for use in the prosecution of drink driving/excess alcohol cases.

Section 15(4) tells us that "A specimen of blood shall be disregarded unless - (a) it was taken from the accused with his consent... or (b) it was taken from the accused by a medical practitioner under section 7A of the Road Traffic Act 1988 and the accused subsequently gave his permission fora laboratory test of the specimen."

Section 7A allows a medical practitioner who is NOT connected with the accused's clinical treatment to take the specimen of breath where the accused is unable to give consent.

Section 15(4) is somewhat vague on the meaning of consent and could on one interpretation allow for any sample to be used for laboratory analysis.  However, elsewhere the Act tells us that the police constable must inform the suspect that a requirement to provide a specimen has been made for the purposes of the investigation and that failure to provide it will render him or her liable to prosecution.  The warning must be given by a police officer and not by a medical professional.  We can therefore conclude that "consent" must mean consent that is informed by the appropriate warning being given by the officer.

Since no such warning would have been given prior to the taking a blood sample for use in connexion with the treatment or diagnosis of the suspect's condition we can conclude that it would not be lawful for the police to use such a sample as part of their investigation into a drink driving or excess alcohol allegation.

How does the intoximeter work?

Intoximeter EC/IR

The police in England and Wales currently use a machine called the EC/IR Intoximeter.  You may hear other names such as intoxilyzer or alcohometer banded about, these are all names of different machines that can be used to test the alcohol content of somebodies breath.  They are model names used by different manufactures.

The intoximeter is the one most commonly used at the time of writing across England and Wales.  It is a very sophisticated machine that works by looking at the alcohol content in the air expelled from the lungs.  As you breath out, the alcohol content will gradually rise until you reach the air from the deepest part of the lungs.  At that point, the level of alcohol will plateau.  Once the intoximeter detects this happening it will divert a tiny amount of breath into a fuel chamber where it will conduct the final alcohol determination, which is the reading the machine produces at the end.

As well as this, the intoximeter constantly monitors the flow of air being passed into it.  This is done to prevent any attempt to cheat the test.  This means that if you stop or reduce the force of your blow into the intoximeter the machine will detect the change and end the attempt resulting in a "fail".

Because the intoximeter can detect deep lung air, the machine can easily be used by anybody regardless of their lung capacity.  Because breath alcohol can form a mini-plateau at the start of a blow, the machine will not take a reading in the first 3 seconds of a blow, although it can do so at any time thereafter when it detects the main plateau of alcohol in your breath.  Thus somebody with a small lung capacity is likely to be expected to blow for a much shorter time than somebody with a large lung capacity.

These safeguards are not present in the roadside breath test machines used by the police prior to arrest and can often explain why somebody was able to provide at the roadside but not at the police station.

The safeguards can also make it difficult for some people to successfully provide a specimen at the police station, especially when officers instruct you to blow like you did at the roadside!

If you have been accused of drink driving or failing to provide a specimen of breath for analysis and would like expert legal advice from a solicitor who understands how the law and breath test procedures work in detail then contact us now on 020 8242 4440 and ask to speak with Nick Diable.

Spiked drinks: a case study

Earlier this week Nick represented Louise (not her real name) who had been caught drink driving and who was about to lose her job if she lost her driving licence.  She had originally instructed another motoring solicitor who advised her to plead not guilty (and charged her accordingly) despite the evidence against her being overwhelming and her having admitted both drinking and driving when interviewed by the police.

The final straw with that firm came when their fixed fee turned out not to be fixed at all and they tried to charge Louise an extra £800+VAT before they would watch the CCTV from her case.  It was at that point that she contacted The London Drink Driving Solicitor and Nick was assigned to work with her.

Louise made it clear that all she was concerned about was keeping her job and that to do that she had to keep her driving licence.  After fully reviewing the evidence, it was obvious that Louise had no defence to the allegation, particularly in light of her admissions she made in the police interview.  But, it was also clear that the amount of alcohol Louise had drunk could not have put her over the drink driving limit; however, she had since heard a rumour that the punch she had drunk had been spiked with very strong vodka.

Nick advised Louise to change her plea and fight the drink driving ban by telling the court that there was a special reason not to ban her.

We obtained expert evidence from Professor Johnston, a renowned expert, who confirmed that the punch mixed with the very strong vodka would have put Louise not only over the limit but at the exact level the police measured in her breath.  Importantly, Professor Johnston also gave evidence from a scientific experiment that showed volunteers were unable to tell the difference between a soft drink and a soft drink spiked with large amounts of alcohol.

In court, Nick applied to be allowed to call the hearsay evidence about the spiking of the punch saying that it was in the interests of justice that the evidence be admitted.  Despite the obvious importance of the evidence, the court refused the application.

The arresting officer gave evidence that Louise had been swerving across the road.  In cross-examination, Nick got the officer to admit that she could not remember the arrest beyond what was in her notes.  Despite that admission, the officer claimed to remember seeing Louise swerve violently, something that was not in her note book.  That was the key to Nick convincing the court that the police officer’s evidence was unreliable.

Nick called Louise and her boyfriend, Dave, to give evidence of what Louise had drunk that evening and both mentioned seeing the extra strong vodka by the punch bowl, although because of the earlier ruling neither were allowed to mention the rumour they had heard of the punch being spiked.

After the evidence was complete the prosecution argued that Louise and Dave were lying or mistaken about the amount of alcohol Louise had drunk prior to driving.  Nick argued that they were both honest and reliable, that their evidence was backed up by the evidence of Professor Johnston and that the police officer’s recollection was unreliable.

The magistrates took just 15 minutes to agree that there was a special reason not to disqualify her and instead imposed just six-penalty points on her driving licence.  Had she gone to trial and lost, we have no doubt that Louise would have been convicted of drink driving, lost her driving licence and with it, her job.

When you decide whether to plead guilty or not guilty it is worth thinking about what you want to achieve.  If you want to keep your driving licence at all costs then claiming special reasons might be for you.  You should never enter a plea to a criminal charge, such as drink driving, without taking legal advice from a solicitor who has experience and expertise in defending drink driving offences.  

You can always get top quality legal advice on drink driving (and related offences) cases by calling The London Drink Driving Solicitor on 020 8242 4440