Case report: Appeal against sentence

Frank's sentence was reduced on appeal thanks to argument advance by his lawyer

Today, we attended a Crown Court to conduct an appeal against sentence imposed on a young man accused of failing to provide aspecimen of breath for analysis.

The brief facts are that police officers came upon a vehicle that had been crashed into a roundabout causing damage to the car and a sign post. The Crown’s case in the magistrates’ court had been that the defendant, Frank, had deliberately refused to provide a specimen of breath. Frank said he only refused because he wanted to speak with a solicitor first. For reasons that are unclear but now subject to an official complaint, the prosecution denied he had ever asked for a solicitor and the court sentenced on the basis that the defendant deliberately refused to provide and was not doing so because he wanted legal advice before providing the specimen.

What difference does this make? If a person has an honestly held but unreasonable excuse for failing to provide then they are likely to be fined and sentenced to between a 12 and 16 month driving disqualification. If they simply refuse to provide then they face a driving ban of 17 – 28 months plus a community order, which usually means unpaid work but can include a curfew and electronic tag among other orders.

In this case, the magistrates sentenced Frank to a driving ban of 20 months and a band D fine – these are imposed where the court feels a community order is appropriate but is for some reason unworkable. A band D fine is calculated as being between 200-300% of a defendant’s weekly income.

We advised Frank to appeal on the basis that the evidence disclosed to the defence was silent on whether he asked for a solicitor or not so it was wrong of the court to reject Frank’s assertion that he had asked for legal advice without hearing any evidence.

At the appeal hearing, the Crown maintained their position that Frank had not sought legal advice or mentioned it as a reason for failing to provide a specimen of breath for analysis. We called evidence from Frank to show that he had asked for legal advice and that he would have provided a specimen had the advice been for him to do so.

The Crown failed to warn any of their witnesses to attend, which left the judge pressing the prosecutor for an explanation as to precisely what Frank had said to the police. It was at this point that the prosecutor admitted Frank had told the police he would comply with their requests once he had spoken to a solicitor. The prosecutor admitted this had happened on two or three occasions – information that had been withheld from the defence earlier in the case. Despite this admission the prosecutor continued to try to argue that Frank’s comments about legal advice were not enough to count as a request to legal advice.

On Frank’s behalf, Nick Diable argued that saying he would comply after speaking with a solicitor could only be taken to mean that Frank was requesting legal advice. It simply made no sense to interpret it any other way. Nick also pointed out that the Crown asserted that Frank had been given his rights and entitlements properly, which would mean he was told he had a right to free and independent legal advice. There was no evidence from the Crown at all, but even they could not point to anything in the hearsay that formed their entire case and say “this is when Frank was told he did not have the right to a solicitor before providing the specimen.”

The court heart the arguments and concluded that Frank must have asked for a solicitor and there was no evidence he was told he could not have one before providing a specimen. The appeal was allowed and Frank’s sentence was reduced accordingly.

Following the hearing, Frank was asked whether he had any comments about the service he received from London Drink Driving Solicitor and said, “The case was handled superbly with the right balance of advice and empathy. Nick was a pleasure to deal with. No hesitation to recommend him to anyone in the same situation, he took the negative clear away in a very professional manner.”

Frank’s father who supported him throughout the case said, “We were both very grateful for your dedication and hard work… Thanks for everything, you managed to turn a very bad situation into a lesser worry.”

If you find yourself accused of an offence involving drink, drugs and driving then you can get expert legal advice by calling 020 8242 4440.

Case report: Appeal against sentence

Frank's sentence was reduced on appeal thanks to argument advance by his lawyer

Today, we attended a Crown Court to conduct an appeal against sentence imposed on a young man accused of failing to provide aspecimen of breath for analysis.

The brief facts are that police officers came upon a vehicle that had been crashed into a roundabout causing damage to the car and a sign post. The Crown’s case in the magistrates’ court had been that the defendant, Frank, had deliberately refused to provide a specimen of breath. Frank said he only refused because he wanted to speak with a solicitor first. For reasons that are unclear but now subject to an official complaint, the prosecution denied he had ever asked for a solicitor and the court sentenced on the basis that the defendant deliberately refused to provide and was not doing so because he wanted legal advice before providing the specimen.

What difference does this make? If a person has an honestly held but unreasonable excuse for failing to provide then they are likely to be fined and sentenced to between a 12 and 16 month driving disqualification. If they simply refuse to provide then they face a driving ban of 17 – 28 months plus a community order, which usually means unpaid work but can include a curfew and electronic tag among other orders.

In this case, the magistrates sentenced Frank to a driving ban of 20 months and a band D fine – these are imposed where the court feels a community order is appropriate but is for some reason unworkable. A band D fine is calculated as being between 200-300% of a defendant’s weekly income.

We advised Frank to appeal on the basis that the evidence disclosed to the defence was silent on whether he asked for a solicitor or not so it was wrong of the court to reject Frank’s assertion that he had asked for legal advice without hearing any evidence.

At the appeal hearing, the Crown maintained their position that Frank had not sought legal advice or mentioned it as a reason for failing to provide a specimen of breath for analysis. We called evidence from Frank to show that he had asked for legal advice and that he would have provided a specimen had the advice been for him to do so.

The Crown failed to warn any of their witnesses to attend, which left the judge pressing the prosecutor for an explanation as to precisely what Frank had said to the police. It was at this point that the prosecutor admitted Frank had told the police he would comply with their requests once he had spoken to a solicitor. The prosecutor admitted this had happened on two or three occasions – information that had been withheld from the defence earlier in the case. Despite this admission the prosecutor continued to try to argue that Frank’s comments about legal advice were not enough to count as a request to legal advice.

On Frank’s behalf, Nick Diable argued that saying he would comply after speaking with a solicitor could only be taken to mean that Frank was requesting legal advice. It simply made no sense to interpret it any other way. Nick also pointed out that the Crown asserted that Frank had been given his rights and entitlements properly, which would mean he was told he had a right to free and independent legal advice. There was no evidence from the Crown at all, but even they could not point to anything in the hearsay that formed their entire case and say “this is when Frank was told he did not have the right to a solicitor before providing the specimen.”

The court heart the arguments and concluded that Frank must have asked for a solicitor and there was no evidence he was told he could not have one before providing a specimen. The appeal was allowed and Frank’s sentence was reduced accordingly.

Following the hearing, Frank was asked whether he had any comments about the service he received from London Drink Driving Solicitor and said, “The case was handled superbly with the right balance of advice and empathy. Nick was a pleasure to deal with. No hesitation to recommend him to anyone in the same situation, he took the negative clear away in a very professional manner.”

Frank’s father who supported him throughout the case said, “We were both very grateful for your dedication and hard work… Thanks for everything, you managed to turn a very bad situation into a lesser worry.”

If you find yourself accused of an offence involving drink, drugs and driving then you can get expert legal advice by calling 020 8242 4440.

Case report: failing to provide

Police officers must give breath test instructions clearly so that suspect
understand what they are required to do when they provide a specimen

When a person is suspected of drink driving the police are empowered to require the suspect to provide a specimen of breath and refusing to do so is a criminal offence.  Effectively, the law forces the suspect to give evidence that can be used against him or her in a subsequent trial – ordinarily, the police cannot force a suspect to give evidence against themselves.  For this reason, the law is quite strict with police officers and requires them to follow the set procedure fully.  Deviation from the procedure can provide a defence both to drink driving and failing to provide offences.

The case we will talk about today is just such an example of a police officer failed to comply with the breath test procedure and ended up being made to look a fool at court.

Our case began in September 2014 when our client was arrested on suspicion of drink driving and driving with no insurance.  At the police station he agreed to provide a specimen of breath but ultimately failed to do so.  The client was unable to explain why he could not provide but said he did everything he was asked to do but did not really understand the procedure.  The client in this case speaks conversational English well enough to do his job as a builder but anything else is beyond his ability – or at least it was in 2014 when he was new to the UK.

Our first thought was that if our client did everything required but could not comply then perhaps there was a medical problem.  Unfortunately, at the first hearing in the case the prosecution did not bother to serve all their evidence – this happens regularly.  The case was adjourned for a trial.

At the first hearing, we served a copy of the insurance certificate on the prosecutor proving that our client was insured.  We subsequently served a further two copies by post and in person at a subsequent hearing.  Remarkably, at the trial the prosecution had managed to lose all three copies!

Shortly after the first hearing, we obtained the prosecutor’s evidence, which included CCTV of the procedure; it was immediately obvious that our client had failed to provide a specimen of breath because the police officer had not told him what to do.  The video showed a police officer who was difficult, unhelpful and impatient.  The police officer had arranged a telephone interpreter but had breached several points of his police force’s policy on the use of interpreters.  In addition, the interpreter had been cut off less than half way through the procedure so our client had no instructions he could understand about how to complete the breath test procedure.

The big problem for us was getting the prosecution to pay attention to their own case and review it properly.  Something that they refused to do for 14 months after the first appearance.

This morning, we attended for the trial.  We found a prosecutor who had not yet managed to watch the CCTV or speak to her police officer.  We encouraged the prosecutor to watch the CCTV – indeed our advocate sat with the prosecutor and took her through the footage.  Afterwards, the prosecutor spoke to the police officer (she described him as “awful”, which is a pretty damning indictment of a police officer’s attitude).  After hearing representation from our advocate at court it was obvious that the prosecution could never prove their case and they offered no evidence, the result being that our client was found not guilty of failing to provide.

The prosecutor also became the first member of the Crown Prosecution Service to take the time to examine the insurance certificate and was forced to admit that he was not guilty of driving with no insurance either.

Our client was acquitted of both charges against him and a Defence Costs Order was made in his favour allowing him to recover his legal costs.

If you are facing court for an allegation of drink driving or failing to provide a specimen, then do not hesitate to contact London’snumber 1 drink driving specialist solicitor: the London Drink Driving Solicitor on 020 8242 4440.

Sentencing mistakes

Do judges need to read up on the law?

Almost exactly a month ago today I reported a case I had dealt with in which a magistrates court had failed to understand sentencing law in a drink driving case.  A few weeks later and I find myself writing on exactly the same topic.

In the previous case, the court at least had the excuse that the offence charged was an unusual one that has a very similar name to a very common offence - in today's example the court has no such excuse.

Today's example involves a defendant who was represented by a general criminal law solicitor rather than a motoring law specialist; he entered a guilty plea to failing to provide a specimen of breath for analysis.  For sentencing purposes failing to provide for analysis (as opposed to failing to provide at the roadside) offences fall into two categories.  First are offences of failing to provide a specimen while driving or attempting to drive.  In these cases the court must impose a driving disqualification of at least 12 months.  Where there is evidence of serious impairment coupled with a deliberate refusal or failure to provide the starting point for a first time offender is 12-weeks imprisonment and a disqualification of up to 36 months.

The offence can also be committed by people who were in charge of their vehicle.  This is far less serious and, while imprisonment is possible, the sentencing guidelines indicate that only the most serious offences will result in prison for a first time offender.  So far as the disqualification is concerned the court does not have to ban a driver and the guidelines do not say a disqualification is certain until the person is seriously impaired and deliberately failing or refusing to provide.  For most offences, a fine will appropriate coupled with 10 penalty points.  When a driving ban is imposed, the longest that should be imposed on a first time offender is 12-months.

This is why I was surprised to be approached by a new client who pleaded guilty to failing to provide while in charge and received an 18 month driving ban.

I do not know whether this ban was imposed by a lay bench or a district judge but either way it is very concerning that nobody in the room knew that the offence they were dealing with has its own sentencing guideline that should be followed.

I have experience of district judges failing to understand the law properly.  In one case, a judge sentenced one of my clients to a 2 year driving ban following a guilty plea to failing to provide while in charge.  I was able to intervene and the sentence was reduced to an appropriate level - unfortunately, it seems that not all advocates are familiar enough with the law to prevent the judiciary imposing unnecessarily harsh sentences on the people who come before them.

If you require legal advice, do not hesitate to contact me, Nick Diable, at London Drink Driving Solicitor on 020 8242 4440.

Courts make mistakes too

 

Even judges make mistakes

In Texas, the standard advice given by an attorney to his client is not to provide any specimens of breath, blood or urine for analysis if they are ever accused of drink driving.  This is because Texas has no law criminalising the refusal to provide a specimen; however, in the UK refusing to provide can result in a prison sentence and will always lead to a driving ban… well nearly always.

You see, there are two different offences of failing to provide and the key to whether you lose your licence or not is where the offence takes place.  Refusing to provide an evidential specimen at the police station or in a hospital is a serious offence.  Conviction carries a minimum driving ban of 12 months (you can escape even this driving ban if the court finds a specialreason) and if there is evidence that you were seriously impaired you can end up with a prison sentence!  However, if you refuse to provide a preliminary specimen at the roadside the sentence will normally be a small fine and 4 penalty points.

But, it doesn’t always work out that way.  We at Oxford Drink Driving Solicitor were recently instructed to represent a lady accused of drink driving at the magistrates’ court.  She had a previous conviction from four years ago for failing to provide at the roadside but the list of previous convictions showed she had been disqualified for 18 months and received a fine of nearly £1,000.

Speaking to the client it emerged that she had been represented by the court duty solicitor.  She said that the hearing happened very quickly and she hadn’t really understood what was happening but assumed everything had been done properly.

Having checked the facts it is indisputable that the sentence imposed was outrageously over the top.  You might hope that the magistrates’ legal advisor, prosecutor or duty solicitor would have recognised the mistake and intervened but clearly nobody did.  A solicitor who specialised in drink driving law would have spotted the error immediately and prevented the sentence being passed.

Now, if you have one of a short list of previous convictions within the past 10 years and come before a court to be sentenced for a second drink driving offence the court is obliged to impose a minimum driving ban of 3 years.

The court noted the previous conviction for failing to provide and the length of the sentence before stating the minimum three-year period applied.  If the conviction were for failing to provide at the police station the court would have been correct; however, failing to provide at the roadside is not an offence that attracts the minimum 3 year disqualification.  Once again, neither the legal advisor nor the prosecutor spotted the mistake being made.  Fortunately, Nick Diable was representing the defendant and immediately prevented the magistrates going further and imposing another unfairly long sentence.

If you are facing a court hearing instructing an expert solicitor with experience of the relevant area of law you can avoid becoming the victim of a court mistake.

Clarke Carlisle charged with a drink driving offence

Clarke Carlisle, former Burnley, QPR, Leeds and Northampton player
has been charged with a drink driving offence

It has been reported that Clarke Carlisle, the former chairman of the Professional Footballers Association has been charged with failing to provide a specimen of breath for analysis by the Metropolitan Police.  He is due to appear at Highbury Corner Magistrates’ Court on the 20^th January 2015, although he is currently seriously injured in hospital following a collision with a lorry that was unrelated to the allegation of drink driving.

Since it’s in the news, this seems like an opportunity to explain what failing to provide a specimen is all about.  It goes without saying that none of what follows relates to Clarke Carlisle’s case since we would never discuss an individual case prior to trial when the full facts are not known.

Most people I speak to have the idea that failing to provide isn’t a serious offence – I hear a lot of people saying, “oh but failing to provide isn’t as serious as drink driving”.  If you’ve been charged with failing to provide then the bad news is that it is a serious offence, even more serious than drink driving itself.

Why is it so serious?  Well the simple reason is that if you could get away with drink driving by refusing to provide a specimen then everybody would refuse to provide!  I’m told that in Texas there is no equivalent offence so drivers routinely refuse to provide and are allowed to go on their way; how true that is though I’ve no idea.

Because the courts treat failing to provide more seriously than drink driving it is easy to find yourself facing a prison sentence, which makes getting an expert drink driving solicitor even more important.  Prison becomes a real likelihood (even for a first time offender) if the court decides that you deliberately failed or refused to provide and that you were seriously intoxicated at the time.  This can be a problem for a lot of people because often the reason they fail to provide is because they were drunk in the first place.

The police can require you to provide a specimen of breath if they were conducting a genuine investigation into a drink driving offence.  This means that if you can show they were not investigating such an offence then you will have a defence.  So, if it were impossible for you to drive the vehicle and the police knew that then you may be able to argue that their investigation had concluded upon discovering it was impossible for you to drink drive and therefore they had no power to require a specimen of breath.

Far more common are medical excuses for your failure, such as asthma or some other condition that left you unable to comply with the procedure.  It’s worth remembering that if you can be too drunk to provide and that is a medical excuse!  I have won cases by arguing that my client was physically incapable of providing through being too drunk.  If you are considering running with this type of defence you MUST take expert legal advice from a specialist drink driving solicitor; it’s easy to make things far worse for yourself and a decent amount of the work we do every year is advising people who went it alone or chose the wrong solicitor.

I know that Mr Carlisle’s family will be far more worried about him than any drink driving case at the moment and everyone here at the London Drink Driving Solicitor wishes him a speedy recovery.

If, like Mr Carlisle, you have been accused of failing to provide a specimen of breath (or blood or urine) then you can get expert legal advice from the London Drink Driving Solicitor and by calling 020 8242 4440.