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.