Special reasons: faulty home breathalyser

The Alcosense Elite is the breathalyser I use at home

Many of us keep a breathalyser at home to check that we are safe to drive the day after drinking (okay and maybe sometimes to see who can handle their drink best) but what if the machine gets it wrong?

At heart, most of the home breathalysers work using an infrared detector to count the number of alcohol molecules passing over the sensor; this is exactly how the police’s roadside breathalysers work.  It’s even how the Camic Datamaster and Lion Intoxilyser (two of the three evidential breath machines used in police stations) work – the Intoximeter EC/IR uses both infrared and fuel cell technology.  Given that they use the same technology as their professional counterparts you may well assume that the home breathalysers will be as reliable, but some reports have suggested that the home breathalysers are unreliable.

We are solicitors not toxicology experts so we are not going to consider the reliability of home breathalysers.  Instead we will look at what happens if you rely on one only to be let down.

Let’s clear one question up right away – if your breathalyser says you are under the limit but the police say you were over the limit, can that be a defence? No.  The law is quite simple, if you drive on a road or other public place with excess alcohol you are guilty of drink driving, it doesn’t matter why you did it.

But, the really interesting question (well to me, but then I am a solicitor who specialises in drink driving law) is whether reliance on a home breathalyser can amount to a special reason for not disqualifying.

Now, the court must disqualify a drink driver for a minimum of 12 months unless there is a special reason not to do so.  Way back in 1939 the High Court in Northern Ireland said that a special reason is something that should be considered by the court when it passes sentence and should be “directly connected with the commission of the offence”.  This was incorporated into English law when Lord Goddard gave judgment in the 1946 case of Whittal v Kirby.  But, it wasn’t until 1958 in the case of R  v Wickens that we finally got the modern definition of a special reason.  Mr Justice Devlin set out four points for a defendant to prove if he wishes to avail himself of special reasons.  The reason must:

1.       Be an extenuating or mitigating circumstance;

2.       Not amount to a defence to the allegation;

3.       Be directly connected with the commission of the offence;

4.       Be one that the court should properly take into account when imposing sentence.

This test has been severely restricted by subsequent cases; however, I have yet to find a case where somebody has relied on a malfunctioning breathalyser as a special reason – though this area of law is hardly fast moving when the main cases are over half a century old.

Broadly speaking special reasons in drink driving can be split into three categories: those explaining how the defendant came to be over the drink driving limit; reasons explaining why he or she drove above the limit; and anything else.

Let’s think about our situation where a man, we’ll call him Gary, has been out drinking one evening.  The following morning, he gets up, feels fine and blows into his breathalyser.  The breathalyser shows a reading of 20 mg of alcohol per 100 ml of breath, a reading well below the drink driving limit.  Gary decides he’s safe to drive.  Shortly after leaving home, Gary is involved in a minor road traffic accident, the police arrive and breathalyse him.  The roadside test comes back showing Gary is over the limit – the evidential breath test at the police station confirms this and Gary is charged with drink driving.

Gary’s account is one that explains why he drove while over the limit.  But does it meet the other criteria?

Is being misled by a malfunctioning breathalyser mitigating or extenuating?  I would say that it is because it goes to show that Gary was being careful and attempting to avoid drink driving – it was not something that he set out or wanted to do.  That is mitigating in my book.

Is Gary’s account a defence in law to drink driving?  Nope.

Is his account directly connected with the commission of the offence?  Yes.  If Gary is to be believed, he was being as careful and would not have driven had the breathalyser indicated he was over the drink driving limit.  He therefore only drove because he was misled by the device he purchased to prevent him drink driving.

Should the court take this into account when passing sentence?  That’s a matter for the magistrates but I would be surprised if a court said no.

So, on the face of it a misleading reading from a home breathalyser is capable of amounting to a special reason.

If you have been accused of drink driving you can get expert legal advice from London Drink Driving Solicitor on 020 8242 4440.

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.

Police correct not to arrest alleged drink driver

Police in Devon and Cornwall have been criticised after a driver was allowed to continue driving despite failing a roadside breath test.  Although it is normal for the press and campaigners to talk about drink drivers as if they were all murderers intent on killing everybody they see, we at London and Oxford Drink DrivingSolicitor think that the police got it right on this occasion.

In the past, roadside breath tests were crude and could only tell a police officer if somebody was under the limit or over the limit – although some also had an amber warning for those close to the limit.  Modern roadside breath test units are far more sophisticated and, if the government gets its way, may soon replace the aging police station intoximeters.

Modern roadside breath test equipment is capable of providing officers with a precise reading of the alcohol in a driver’s breath and are considered to be as accurate as the police station evidential intoximeters.  The main difference is that the roadside units lack other features of the intoximeter, such as the ability to detect mouth alcohol and there are differences in the way the machines look for the deep lung air that is key to obtaining a reliable specimen.

The driver in question is said to have provided a specimen of just over the drink driving limit of 35 microgrammes of alcohol in 100 millilitres of breath.  No precise figure has been published; however, we assume that it was below 40 microgrammes.  We assume this because in 1983 the Home Office published its Circular number 46/1983, which states that because there is a margin of error with all breath test machines, the police must not prosecute where the level of alcohol in breath is “… less than 40 micrograms (sic)”.  The reason given for this is to, “… ensure that any offender prosecuted will have a result in excess of the prescribed limit.” 

Drivers blowing below 40 microgrammes will not be charged

The Circular means that had the driver in this case blown less than 40 at the police station the police would not have been able to prosecute.

In the Devon and Cornwall case, the police officer was advised by another police officer to wait 30-minutes and then re-test the driver.  This appears to us to be an excellent use of time as a diagnostic tool.  If the driver’s blood alcohol level was rising then he would be likely to provide a higher reading after 30-minutes and could have been arrested.  If, as happened, the later test provided a lower reading then it would be obvious to the police officer that the driver could not be charged with any offence and so arresting him could not be necessary and thus any arrest would be unlawful!

As always, if you have been accused of a drink driving offence and would like advice and representation in court, whether it’s for a trial or just to help you get the lowest possible sentence, you can call the London Drink Driving Solicitor on 020 8242 4440 or in Oxford and the Thames Valley on 01869 866 490.

Summer drink driving clampdown

Police are cracking down on people who get behind
the wheel after a drink

Police forces across the country have launched their summer crack down on drink driving offences, beginning with a "month of action for June".

As the sun finally comes out to play across the UK, police forces expect to be busier than ever hunting down people they suspect of drink driving.  Chief Constable Suzette Davenport, said:

"We shall be better equipped than ever this summer and we will be ready for action to keep the road network safe, whether it be at night or the morning after."

But, police don't always get it right - in 2012 157,000 drivers were breath tested, of which just 4.6% tested positive or refused to provide and were arrested!  In the summer of 2014, police achieved a slightly better hit rate of 6.45% out of 63,688 breath tests.  We don't have figures for those who were convicted following arrest but our experience tells us that there are many things that can lead an innocent person to be wrongly accused of drink driving.

As specialist drink driving solicitors we meet a lot of people who have got behind the wheel above the drink driving limit and one of the things we can do is help them minimise their sentence.  One thing we find consistently is that people over-estimate the amount of alcohol they can drink and remain below the drink driving limit.  This is as true of the young as it is of the old and we don't see any significant difference between men and women making this mistake.

The best advice we can give is not to drive after consuming any alcohol.  But, if it's too late for that and you have already made a mistake - or been wrongly accused - then call us on 020 8242 4440 (London) or 01869 866 490 (Oxford/Thames Valley) and get the drink driving experts on your side today.

Drink driving smart cars

In car breath tests could become the norm

The US National Highway Traffic Safety Administration (NHTSA) has announced that they have developed a new technology to prevent drink driving offences.  Called the DriverAlcohol Detection System for Safety (DADSS) the technology will monitor the alcohol level of drivers and immobilise the vehicle if the driver exceeds the drink driving limit.

DADSS can operate through an in-car breath test machine that operates as the driver breaths normally, i.e. there is no need to breath into a special device for a set period of time as with systems that you can currently buy to fit to vehicles.  The other option is a system that claims to be able to monitor blood alcohol levels via infrared detectors mounted in the steering wheel.  It’s unclear at the moment whether DADSS will use breath and blood analysis together or separately.

The proposal at the moment is to offer DADSS as an optional extra, although it’s difficult to see it being a popular option.  People who don’t care about drink driving won’t buy it and nor will people who are convinced drink driving is something they would never do – in our experience most of our clients fall into the latter category.  The only real market we can see for this technology is parents concerned about their children drink driving – how big a market that is we don’t know but we have only come across one youngster with the current technology fitted to his car.

We see possible problems with the system.  First, if the car is simply analysing the air inside the car it gives rise to the possibility of false positives from passengers and even from chemical fumes that can mimic alcohol in the air – in one particular case we discovered a roofer who was able to set off breathalysers at 50 paces due to the type and amount of chemicals he used in his daily work.

This system is being designed by the US safety administration with the cooperation of leading vehicle manufactures from around the world, including BMW, Mazda, Porsche, Jaguar, Mercedes-Benz, Land Rover and many others.  This means that the system will have to be programmed for each jurisdiction because different countries have different drink driving limits.  If a computer can be programmed it’s likely it can be reprogrammed – car enthusiasts already reprogram their car’s computer to produce more power from the engine and tweak other functions.  Is there really anything to stop people reprogramming this device?

Is the future self driving cars?

Anybody who has driven cars fitted with automatic windscreen wipers may also be dubious about how reliable car manufactures can make this technology – our experience at least is that automatic windscreen wipers are completely unable to detect water on the windscreen properly, so will a car be able to detect alcohol inside a human body any better?

It’s worth remembering that Toyota have been working on their own version of DADSS for more than a decade but have yet to bring any technology to market in their vehicles, which may give some indication of just how difficult a challenge this is.

Some people have suggested that DADSS is the technological equivalent of Betamax in that by the time it is ready to launch self-driving cars will be available thus rendering this technology irreleva