Duress

"I had to drive, an elephant was attacking me outside the pub."

There is a common belief among solicitors and barristers that if you get behind the wheel of a car while you are over the drink driving limit then you have no defence to a charge of drink driving. I disagree with that. Today, I want to look at the defence of duress and whether that can assist a person accused of drink driving.

What is duress?

Duress is a defence to all crimes except murder, attempted murder and treason.

To rely on duress, a defendant must show that he committed the offence because he feared death or really serious injury (this is a subjective test) and that a sober person of reasonable firmness, who shares the defendant’s characteristics, would have acted as the defendant did (this is an objective test). Thus, in DPP v Mullally, there was no complaint that the magistrates had considered the reasonable person to have been the victim of domestic violence at the hands of multiple partners.

The defendant can rely on duress if he honestly believed himself to be in immediate or imminent danger, even if it emerges that his belief was mistaken.

Duress versus Emergency

Historically it was always thought that duress was not available in drink driving cases. Even today, many solicitors will tell you that it is not available. I’ve never been sure why people think this but I suspect the answer is because of the special reason of “emergency”.

Emergency is a special reason for avoiding disqualification from driving. Emergency is not a defence and cannot prevent a person being convicted – often though that is the important thing because even if you keep your driving licence here you may find that other countries ban you from driving as part of your visa to enter that country, the US is a good example of a country that does this.

A typical emergency situation will involve somebody fleeing an attack or rushing to give aid and assistance to somebody else. It is, I think, the use of emergency for defendants running from a serious threat that has caused people to think that emergency replaces duress in drink driving cases.

Emergency and duress sound similar but there are very important differences that mean it is not possible to say the existence of emergency as a special reason bars the use of duress as a defence. The key difference is that to establish an emergency there is no need to establish a threat to life or a threat of really serious injury. For example, in DPP v Enston the magistrates found a special reason where a man drove drunk because a woman threatened to make a false allegation of rape against him if he refused to drive. The prosecution appealed but the High Court upheld the magistrates’ decision and said that a personal crisis was capable of amounting to an emergency and thus a special reason. Clearly, there was no threat to Mr Enston’s life or any threat of serious injury to him and so he could not have been acquitted on the basis of duress.

So, is duress available in drink driving cases?

The answer to this question is clearly a resounding, “yes”.

In 1989, Mr Justice Tudor Evans and Lord Justice Parker sat together in the High Court hearing the case of DPP v Jones and were asked whether magistrates were correct in law to find that the defence of duress was available to the defendant. Tudor Evans, J. said, “I can quite follow how the defence of [duress] was available for the defendant …”  That’s nice and clear, except that Parker, LJ decided to stick his oar in by saying that the court had not, in fact, considered whether duress was available and nobody should assume otherwise – maybe the two judges should have discussed the case a little more before giving judgment. Mr Jones ultimately lost his case not because duress wasn’t available but because he had continued to drive far longer than was necessary to escape the threat he faced.

By 1991, it seems things have become a little clearer in the minds of the High Court judiciary. Lord Justice Mann sat with Mr Justice Roch hearing the case of DPP v Bell. It was such an unattractive defence that the case was heard in three different courts. Mr Bell had gone out drinking with the intention of driving home while he was above the drink driving limit. On his way to his car, trouble broke out and he found himself outnumbered. He ran with friends to his car and drove to escape the trouble. He stopped a short distance up the road where police eventually found and arrested him.  In the magistrates’ court, he was convicted because he had always intended to drive home. Mr Bell appealed to the Crown Court who acquitted him saying his intention was irrelevant. The prosecutor appealed to the High Court arguing that somebody who had always intended to drink and drive should not get away with it just because he involved himself in trouble before he had a chance to commit the offence. The High Court was clear; duress was not only available to Mr Bell but he had established sufficiently well that his fear of injury or death was genuine. He had not driven further than was necessary to escape that threat and, as such he was not guilty of drink driving.

Despite DPP v Bell being decided in 1991 and the decision being reported in 1992 the idea that duress is not available to drink driving persists. I know this because recently a defendant came to me saying that he attended court alone to plead not guilty on the basis of duress and had his case adjourned for him to obtain advice, it would seem because the legal adviser to the court did not believe duress applied to drink driving cases!

As always, having a solicitor who knows the law is invaluable when attending court.

What do I need to prove to win with duress?

In theory, absolutely nothing. Once duress is raised it is for the prosecution to disprove it not for the defendant to prove it. In practice, the court will expect you to establish duress is available before the prosecution is required to disprove it.

In 2006, Lord Justice Latham and Mr Justice Fulford considered the case of DPP v Mullally. The case involved a woman rushing to the aid of her sister who she believed to be in danger from her abusive partner. Ms Mullally was forced to flee said abusive partner and, after running a distance up the street, got into her car and began driving away. She was made aware that police had attended and that the threat against her no longer existed. Instead of ceasing to drive, she continued driving home where she was arrested. Rather sweetly the magistrates acquitted her on the basis that although the police were on hand, “… it would not be reasonable to expect a woman and her daughter in pyjamas and dressing gowns to seek refuge at 3am from a stranger, albeit a police officer.”  I think the magistrates must have been from a gentler time, I cannot imagine any London benches thinking that way.  Unsurprisingly, the High Court disagreed with the magistrates and directed that the magistrates court convict Ms Mullally. But, in doing so they gave us three important questions that must be asked and disproven by the prosecution in each drink driving duress case:

1.      Was the defendant impelled to act as she did as a result of a reasonable (even if mistaken) belief of an imminent threat of death or serious physical harm?;

2.      Would a person of reasonable firmness with the same characteristics as the defendant have been driven to act in the same way?

3.      On an objective viewpoint, did the threat still exist by the time the defendant ceased driving?

It’s worth noting that in point 2 a court is likely to view the person of reasonable firmness as being sober – drunken reasonable people are few and far between in courtrooms.

As I have said, it is for the prosecution to disprove any one of these questions to secure a conviction. But, in reality, the court will expect to hear evidence, usually from the defence, to establish duress in the first place.

In conclusion, we can see that duress is a defence that is available if you have been accused of drink driving. It is one that the prosecution must disprove but the courts will almost certainly expect to hear evidence from you to establish that you honestly believed there was a threat to you and that you drove no further than was necessary to mitigate that threat.

Heartburn and drink driving

Up to 12.8 million people in UK could be at risk of false high alcohol readings
as a result of chronic heartburn

Drink driving convictions usually rely on a breath test to prove that the driver was above the drink driving limit.  An interesting problem arises when somebody who has drunk a small amount of alcohol provides a specimen of breath but brings up gas from their stomach at the same time causing a false high alcohol reading.

In researching this topic I’ve seen judges call this stomach gas all kinds of things like “heartburn”, “air”, “eructation”, “burps” and “mouth alcohol”.  Whatever you choose to call it quite clearly if you have been drinking and bring gas up from your stomach there is every chance that it will contain some of the alcohol that is still in your stomach.  If you happen to be providing a specimen of breath when this happens, then it is entirely possible that some of the alcohol from your stomach will be blown into the machine and give a false reading that does not reflect how much alcohol is actually in your breath.

This is a bigger problem than you might think.  Research has shown that 20% of the US population suffer chronic heartburn with symptoms appearing at least once a week while 7% have daily symptoms.  If that holds true in the UK that would mean there are 12.8 million people who may find themselves giving a surprisingly high alcohol reading at the police station.

You would think that if the specimen of breath does not accurately reflect the amount of alcohol in your breath that the test would be unreliable and so you would have a defence.  Unfortunately, this is not how the courts see things.  In the case of Zafar v DPP, the court was asked to define the word “breath” and it came to a rather surprising decision.  The court ruled that “breath” means “air exhaled from any thing”.  With respect to the court that is a nonsensical definition – breath is air exhaled from the lungs of a living creature – that is the definition given by the Oxford English Dictionary, despite what the court claimed in Zafar.  It cannot include air exhaled from other bodily orifices, nor can it include air exhaled from something that is not alive.  Nonetheless, the court’s definition could easily include flatulence and I seriously doubt that the court would agree somebody was trying to provide if they farted into the Intoximeter.

This bizarre definition was upheld by a subsequent court in the case of Woolfe v DPP, which means that we are probably stuck with this nonsense until another case reaches a higher court in the future.

Because the court has said that gas from the stomach counts as breath the fact that you brought up additional alcohol from your stomach would not give you a defence to drink driving.

But, all is not lost because if you are one of the many people who suffer chronic heartburn (properly known as gastro-oesophageal reflux disease) and you do produce a false high reading then you can rely on your condition to provide you with a special reason to avoid the disqualification that normally follows a drink driving conviction.

In the case of Ng v DPP, O Sang Ng pleaded guilty to drink driving and argued that he should not be disqualified as his chronic heartburn amounted to a special reason not to disqualify him.  The District Judge refused his case saying that the raised level of alcohol in Ng’s breath was special to Ng not to the offence (special reasons must relate to the offence not the offender) and that Zafar v DPP prevented the judge taking account of the false high reading caused by the gas from Ng’s stomach.

The High Court re-considered Ng’s case and ruled that the district judge was wrong on both counts.  First, the High Court said, “the evidence upon which the appellants sought to rely went directly to the commission of the offence. If accepted it could provide an explanation as to why the level of alcohol in the appellant's breath exceeded the prescribed level” – so heartburn explained why Ng provided a specimen over the limit; it related to the offence not the offender.

Next, the High Court considered whether the district judge had got the law right when she considered the case of Zafar.  Again, the High Court ruled that the district judge had got the law wrong and that Zafar’s case did not prevent somebody relying on chronic heartburn to keep their driving licence.

So, while a rather peculiar interpretation of the English language will prevent you relying on chronic heartburn as a defence (even where you were not actually over the limit or impaired); a sensible interpretation of that peculiar case means that you will still be able to keep your driving licence.

If you have been accused of drink driving and need legal advice from an expert solicitor who specialised in drink driving law then contact the London Drink Driving Solicitor on 020 8242 4440.

Recent case: drunk in charge

Being drunk in charge is a serious motoring offence but you can defend
yourself if you are accused of it

When the police cannot prove that somebody has been drink driving they will often charge with an offence of being drunk in charge of a motor vehicle instead.  The offence is just as it sounds, the prosecution must prove that the defendant was over the drink driving limit and that he was in charge of a car or other vehicle.

Parliament included a defence to being drunk in charge when they created the offence – it is a defence if there is no likelihood of the defendant driving while he remains above the drink driving limit.  In 1989, the Queen’s Bench Division of the High Court heard a case known as DPP v Watkins in which the court said that magistrates should consider the following:

1.       Whether the defendant was in the vehicle – and if he was where inside the vehicle he was – if he were not inside then how far from the vehicle was he;

2.       What he was doing at the relevant time;

3.       Whether he was in possession of a key that fitted the car’s ignition;

4.       Whether there was evidence that he intended to take control of the car; and

5.       Whether any other person was in or near the vehicle at the time.

In our case, the Defendant had been found asleep in his car with the engine running by police officers following a tip off from a member of the public.  He had immediately explained to them that he had not been driving and had decided to sleep in his car because he had got drunk and knew that if he went home it would cause an argument with his wife, which he wanted to avoid.

Despite giving an innocent explanation from the very first moment he awoke, our client was arrested and charged with being drunk in charge of a motor vehicle while the alcohol in his breath exceeded the prescribed limit.

Nick Diable prepared his case and represented him at trial.  As part of the preparation, Nick spoke with the people the Defendant had been drinking with and took statements from the person with whom he left that confirmed that the Defendant had said he intended to walk home and had indeed set off on foot.  Another statement was taken from the Defendant’s wife who confirmed that there had been some problems in their marriage and that she had asked him not to come home after he had a drink.

At the trial, Nick cross examined the two police officers about the events on the morning they found and arrested the Defendant.  One officer initially denied knowing why the Defendant had been in the car; however, Nick got her to admit that the Defendant had immediately explained why he was in the car in some detail – the second officer accepted this had happened very quickly when questioned about it.  Both officers denied knowing how far from the scene of the arrest the Defendant lived; however, in cross examination both were shown a map and identified the scene as being within 100 metres of the Defendant’s home.

Nick questioned the Defendant as to his motives and gave him the opportunity to explain why the car’s engine had been running when the police found him.

At the conclusion of the trial, the District Judge said that the Defendant’s case “could only have been improved if he had been directly outside his own home.”  The judge found the Defendant not guilty and awarded costs in his favour.

If you have been accused of a drink driving offence you can get expert legal advice and representation in the London area from London Drink Driving Solicitor on 020 8242 4440 or in the Thames Valley area from Oxford Drink Driving Solicitor on 01869 886 490