Taking the blood option

In this post we will look at the recent changes to the law that affects people facing an investigation into drink driving.

Currently when you are stopped and the police suspect you of drink driving they will usually require you to provide a roadside sample of breath to determine whether you may be over the drink driving limit.  If you provide the sample and it turns out that you are over the drink driving limit then you will be arrested and taken to the police station where you are required to provide two specimens of breath into an evidential breath test machine, in London and Oxfordshire the most common machine is the Intoximeter.

Let’s assume that the lower reading in breath is below 50 microgrammes per 100ml of breath (I say the lower reading because that’s the only one the police are allowed to rely on) but above the drink driving limit.  Previously, the police would have been required to offer you the option of taking a further test, which is widely considered to be more accurate than the breath test.  You have the choice of saying yes or no but once you say yes it is the police who decide whether that further test should be blood or urine.  Mostly, the police will choose blood because… well who wants to watch you take a wee then keep a fridge full of pee in their custody suite?

The blood option has been the norm for decades for the very simple reason that blood tests are more accurate then breath tests.  Despite this, the Government changed the law on the 10^th April 2015 to abolish the option for drink driving suspects to choose to provide a blood or urine sample.

This law change means that if you provide a specimen of breath that is above the drink driving limit but below 50 microgrammes you will be automatically charged with drink driving and sent to court even though there is a risk that the breath test is not correct.

It would be nice to believe that the law had been changed because the breath testing equipment used in drink driving investigations had become more reliable; however, the machines have not changed since the Intoximeter EC/IR II machine was released in 2004.  If anything, our experience shows that the machines are becoming less reliable as we see an increasing number of people failing to provide specimens due to faulty infrared sensors in the machines across London and Oxfordshire.

If you have been affected by the recent change to the law and want to instruct an expert drink driving solicitor then do not hesitate to contact us on 020 8242 4440 or visit our website.

How will the police decide if I should be charged with drink driving?

Camberwell Green Magistrates' Court

A question I’m often asked by clients is “how do the police decide whether to charge or take no further action (NFA)?”

What are the options?

Let’s have a quick think about what options are available to the police at the end of an investigation.

The police have four options in most cases.  They can, charge (or summons you to attend court), caution you, issue a fixed penalty notice or take no further action.

Cautions are rarely issued in motoring cases and are never used where somebody is accused of drink driving.  This is because drink driving carries a minimum 12-month driving ban, which only the court can impose so the case has to be dealt with at court.

Less serious driving allegations, such as speeding, may be dealt with by way of a fixed penalty notice, although in practice these are still dealt with by the court without you needing to attend the hearing.

How do they decide whether to charge?

Evidence

First, the police or a CPS solicitor will consider the evidence obtained by the police and decide whether there is sufficient evidence to charge.

They should consider whether the evidence is admissible, reliable and credible.  A straightforward drink driving case will have evidence of a police officer who sees the suspect driving and evidence that the person failed a breath test.  Although, we are frequently seeing cases where there is no admissible evidence of driving.  For example, the police might say “I was told by two separate witnesses that [Miss X] was driving.”  This is called hearsay and should not be admitted into evidence.

If the police decide that there is not enough evidence to charge then that is the end of the case.  If they decide there is enough evidence the decision maker must move on to ask themselves whether prosecuting the person in court is in the public interest.

Public interest

In 1951, Lord Shawcross, the then  Attorney General, said, “[i]t has never been the rule in this country, I hope it never will be, that suspected criminal offences must automatically be the subject of prosecution.”  The point he is getting at is that just because somebody has committed a crime it does not mean that it is always in the public interest to prosecute them.

In drink driving cases, the prosecution will always reach the conclusion that a prosecution is in the public interest.  This is because of the risk of serious injury and death that can result from driving a car while over the drink driving limit.  It is also because drink driving carries a minimum 12-month driving ban that only a court can impose; so to be banned the police have to send every suspect to court.

Putting it all together

If the prosecution decide there is enough evidence to charge a person with drink driving then it is a foregone conclusion that they will decide it is in the public interest to prosecute that person in court.  In less serious motoring cases, it is possible to avoid a court appearance – always speak to an experienced motoring solicitor if you are facing a driving allegation... it could save your driving licence.

The whole process is called the Full Code Test and should be applied before any decision is made to charge a person with an offence or continue with a prosecution after one has begun.

Why Barbara Knox reminds us to get it right at the start

Barbara Knox getting it right at the start of her career on Coronation Street

In the news recently was the case of Barbara Knox, the Coronation Street actress known for playing Rita Tanner in the soap, who pleaded guilty to drink driving on the day of her trial.

The prosecution alleged that she had travelled to a police station where her daughter was being held for drink driving.  Police officers formed the opinion that she had been drinking and advised her not to drive away from the police station.  Mrs Knox ignored that advice and was arrested, blood tested and charged with drink driving.

At court, she entered a not guilty plea, which she maintained until the day of her trial.  At the start of the trial, Mrs Knox changed her plea to guilty.  This late change did not impress the judge who had been due to hear the trial and who passed sentence on Mrs Knox.  She told Mrs Knox that her original guilty not plea and subsequent late change of heart had wasted court time and money.  Now it’s entirely possible that Mrs Knox had what at first glance appeared to be a good defence but that for one reason or another it was not possible to gather the evidence to proceed to trial, but her misfortune makes for a timely reminder for the rest of us.

Defendants appearing in the magistrates’ court are put at a disadvantage by the system.  The prosecution will not serve their evidence until the last minute meaning that defendants have almost no time to prepare, whereas the prosecution may well have had weeks to get their case in order.

At the first hearing, the court will expect you to have a detailed defence planned out and will expect you to explain what your defence is and give the names and addresses of any witnesses you plan to call to support your defence.

You will also be expected to tell the court which prosecution witnesses you agree with and which you disagree with.  If you disagree with the evidence of any prosecution witness you’ll be expected to say why you disagree and how that disagreement is relevant to your defence.  The court will expect you to have a clear idea whether any of the prosecution evidence should be ruled inadmissible and to put the court on notice of any application to exclude evidence immediately.

Failure to give the court the information it requires may result in you being prevented from calling witnesses, following a particular defence or making a legal argument that could otherwise result in your acquittal.  This is why it is so important to get it right at the very start of your case.

Getting it wrong at the first hearing and putting forward a defence that has no merit, which leads you to pleading guilty at trial will result in a harsher sentence than if you pleaded guilty at the earliest opportunity.

So, in conclusion it is important to get your defence straight at the very first hearing of your case.  If you don’t then you may not be able to put forward your defence, may lose the right to challenge prosecution evidence and, like Mrs Knox, you may receive a harsher sentence if you are convicted.