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.
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