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.

I’m guilty: What can a solicitor do for me?

Drink driving offence aren't child's play

As a solicitor specialising in drink driving offences I generally encounter three types of potential client.  The first want to get off at all costs, often it’s because the fact of a conviction will ruin their lives whether it’s because it messes up their overseas travel/work or because they will lose their job here in the UK.  The second type isn’t too bothered about the conviction but wants to keep their driving licence despite it – again this often motivated by a desire not to lose one’s employment.  The third type are, in some ways, the more interesting; they are the people who want to plead guilty.

I’m often asked by people in the third category, “if I’m going to be banned from driving anyway, what can a solicitor do for me?”

Some "advisers" make me wonder if
you're not better asking the court
cat for legal advice and representation

I understand why people aren’t sure – in fact in a recent Twitter conversation with a fellow solicitor I was told that he (or she, I know not which) attends court in drink driving cases but rarely has much impact on the outcome of the case.  I was surprised to hear that because there is a lot a solicitor can, and should, be able to do for somebody who is pleading guilty.

Before court

For me, the case begins before we get near the courtroom.  While I cannot give definitive advice until I have seen the prosecution evidence, I can give fairly precise advice based upon your instructions.  I can begin to identify the potential mitigating factors that will help reduce your sentence.  I can also talk you through the court process and what to expect – something I find worries a lot of people.

A first time offender who is normally a responsible person can help herself a lot by obtaining character references.  These won’t make a massive difference by themselves, but they will form part of the mitigation that helps convince the court that this incident is out of the ordinary for you.

At court

Before the hearing

By the time we get to the morning of a first appearance in court, I would hope to have met my client a week or so earlier and to have discussed the options with him.  On the morning, I will go through the prosecution evidence looking for errors, omissions or facts that do not add up.  I will also be looking for evidence that can be excluded.  The point being that before you enter your guilty plea you really understand the case you are facing and whether there is any defence whatsoever.  It’s also important to remember that sometimes the prosecution evidence can be used to help your mitigation and finding those helpful points is a key service your solicitor will provide.

Ensuring that every client has the best advice on their prospects of winning a trial is a very important part of the defence solicitor’s job.  Our justice system is adversarial, meaning that the prosecution must prove the case against the defendant – if they cannot then the defendant is not guilty.  Some people do not like that fact, but it’s been our justice system for better part of 1,000 years, so if you don’t like it then I suggest you petition your MP to change it.

It is sometimes claimed that the court’s legal advisor or the duty solicitor will help unrepresented defendants – don’t count on it.  A duty solicitor is only there to help defendants facing a prison sentence and will not get involved in most drink driving cases.  So far as legal advisors are concerned, let me put it this way: I witnessed a defendant in court today accused of ignoring a prohibition notice plead guilty then put forward mitigation that was clearly a defence.  The legal advisor simply ignored this contradiction and allowed the bench to sentence him (and seize his motorcar into the bargain).  Not really the sort of help you want.

At this stage, some people change their minds and decide to plead not guilty.  In a recent case, I represented a client who had planned to plead guilty; however, at court it was clear that the prosecution could not prove that my client had been driving at the time a collision took place.  The prosecution had three-months to consider their position and at trial their still could not prove my client was guilty so he was acquitted.  Again, if you’re one of the people who don’t like how our justice system works then don’t tell me; tell your MP.

During the hearing

Assuming that after we have discussed your case you are still intending to plead guilty we will head into court for the hearing.  By now, I will have a very good idea of what happened to bring you to court and why it happened.  I will be able to highlight all the mitigating factors and deal with any aggravating factors.

After the prosecution have set out their case to the magistrates, I will set about mitigating on your behalf.  Mitigation has two very broad headings, first is mitigation relating to the offence – such as why your actions are not as serious as the prosecution say they are.  The second is personal mitigation, one of the aims of which is to engender some sympathy for you from the court – so it may focus on our family, your work, both or something entirely different.  I am a great believer in knowing your audience so I do my best to watch the magistrates before my case is called on to get a feel for what sort of arguments are likely to work and, which are doomed to failure.

 

Knowing the complexities of drink driving law is essential
(Sadly I was told I wasn't good looking enough for this photo)

Depending on the circumstances, I will often include a discussion on the law as part of my mitigation speech.  A common example, is in asking the court to reduce the length of the driving disqualification.  Most solicitors say that the length of the ban cannot be reduced; however, I take the view that the law does allow a reduction and I get my way more often than not (in fact only two courts have ever refused to allow the reduction after I have set out my grounds for it).

Many articulate defendants can successfully put their own case to the magistrates without a solicitor and I have been instructed simply to advise on how defendants should structure their mitigation speech in the past.  However, one thing most defendants will struggle to do is spot when the judge is exceeding his or her authority.  In March, I dealt with two cases within a week of one another where the District Judge in one case and the magistrates in the other imposed a sentence wholly incompatible with the sentencing guidelines.  Obviously, I was able to spot the errors quickly, address the bench and cite the appropriate law so as to convince the court that it was exceeding its powers.

After the hearing

It is very important that you understand exactly what has happened in the court room because it can have a big impact on you in future.  So, after the hearing I will always discuss the case with my clients after the hearing to make sure they understood what was said by the court and what that means for them.

What impact can your solicitor have on the outcome?

Instructing the right solicitor who understands the very specialised law surrounding drink driving offences can have a big impact on the outcome of your case. 

We’ll briefly look at a couple of recent cases to see what impact a solicitor can have on your case.  In the first, the defendant had no previous convictions, was a family man and a business man who had been out with friends and thought he was being sensible by only drinking two glasses of wine when his friends consumed far more.  It was clear from speaking to him that he did not think anything to do with his personal life was relevant and so would not have told the court about it had he been unrepresented.  In fact, I took the court through the circumstances of the offence, explained to them about his family life and his business.  I was able to build an honest picture of a responsible man who had made a mistake and who was genuinely remorseful for his actions.  The court indicated that the correct starting point was a fine totalling 150% of his weekly income and a 16-month driving ban.  After hearing the mitigation they reduce the fine to 50% of weekly income and a 12-month ban.  They further reduced the ban to 9-months upon completion of the drink driving rehabilitation course.

 

Good advice from an expert drink driving solicitor can mean
that you are holding your very own driving licence much sooner
than if you go it alone or with a non-expert lawyer

In the second case, the defendant had been caught drink driving following an accident and had provided a specimen of breath that showed a very high reading, which meant that the court must consider imposing a community order – that will usually involve unpaid work and a curfew with electronic tagging device.  Because there were some previous conviction, albeit unrelated to drink driving, we were not going to be able to argue that this person was normally a responsible individual.  Instead I conducted the sentencing hearing myself and attacked the aggravating features where possible.  I relied upon a great deal of case law and argued that a community order with a curfew would prevent this person from continuing in his current job.  The court indicated that the correct starting point was a community order with unpaid work and an electronically monitored curfew.  After much persuading the court agreed that the defendant should be fined for this offence rather than receiving unpaid work and a curfew.

So, in conclusion: what can a solicitor do for somebody pleading guilty?

1.       Reduce the sentence you receive at the end of the case;

2.       Help settle your nerves about the hearing;

3.       Ensure your case is fully prepared for every eventuality;

4.       Give you expert advice on the evidence against you;

a.       Whether there is a defence;

b.      Whether the evidence can help mitigate for you

5.       Give you expert advice on the law to get you the best result possible;

6.       Provide convincing and persuasive advocacy on your behalf; and

7.       Rectify any mistakes by the court before they cause you a problem.

You can get expert legal advice and quality advocacy for your case from London Drink Driving Solicitor (020 8242 4440) and Oxford DrinkDriving Solicitor (01869 866 490).

Client feedback

Anonymous online feedback helps us ensure we provide the best service

We have always asked people for feedback on a variety of topics ranging from the quality of the advice and representation they received to questions about professionalism, costs and convenience.  But, historically we always struggled to get responses to our paper surveys, which is why this year we moved to an online feedback form that clients, former clients and even people who decide against instructing us can complete quickly and easily - incidentally, we love hearing from people who don't choose us because their feedback can really shape how we approach potential clients in the future to ensure that people who come to us are receiving the service they really want.

So far, we've only had a few responses to our survey - not the thousands that John Lewis probably receive every week - but the responses have all been positive.  A low number isn't a surprise to us because we are a small bespoke practice that takes very few cases per year compared to the larger warehouse-style firms that churn our cases quickly by simply handing them to contractors to deal with. 

It's worth saying that the surveys are entirely anonymous; we have no way of knowing who has completed the survey once our computer automatically sends out a link.

So far everybody who responded said that we are "extremely professional" and everybody agreed that we are either "extremely convenient" or "very convenient" to use.  Since all of our client meetings take place at a location convenient to our client, such as their home or work, that isn't too much of a surprise.  Every client and former client who responded has said that we are either "extremely responsive" or "quite responsive" to questions about their case.

We are thrilled to be able to say that 100% of respondents said that they were "extremely satisfied" with London Drink Driving Solicitors work.  100% also said that we were able to answer their question or solve their problem "extremely well".

We are really pleased that 75% of respondents rated our service either "a great deal better" or "quite a bit better" than the service they have received from other solicitors.  The remaining 25% said they "did not know".

In terms of price, 50% said that our fees were "somewhat lower" than our competitors while 25% said they were "quite a bit lower".  Nobody thought we are more expensive than other motoring law solicitors they spoke to about their cases.

It is very early days in the running of this survey but so far the results are excellent.  We will be taking on board comments about how we can improve even further and aim to go on providing every client we meet with the best possible service.

If you need a solicitor in the London, Oxford or Thames Valley areas call us today on 020 8242 4440 or 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

Driving licence counterpart abolished

The counterpart has now been abolished

As of this morning (8th June 2015), the driving licence paper counterpart has been abolished and is no longer valid.

The government is advising drivers to destroy their counterpart document; however, we think you should hold off from doing that for a little while.  As from today if you plan to hire a vehicle, at home or abroad, you'll have to visit a government website first and obtain a code that you provide to the hirer so they can check your driving record.

New drivers will only receive a
photo-card licence

At the moment, there are reports of some hirers not being ready to handle the new system and it will no doubt take some time for overseas hirers to catch up with the new system in the UK.  Because of this, you may find it helpful to keep the paper part of your driving licence until the new system is bedded in properly.

In future, new drivers and people renewing their licences will be issued with only a photo-card licence.

The changes also apply to those drivers from European countries who have been issued Community counterparts by the British authorities.

From today, new endorsements and penalty points will not be entered on to your physical driving licence and will exist only on your electronic driving record.  This means that when people appear in court, the court will need to obtain the electronic drivers record for every single defendant.  Currently, courts normally only do this where the counterpart is not available.  There are frequently problems obtaining a DVLA printout at court so this change may create me delays for the court service.

If you have received penalty points before the new system began they will be transferred to your new driving record and continue to operate exactly as before.

Should you require legal advice on any driving matter please call the London Drink Driving Solicitor on 020 8242 4440 and ask for Nick.

Lowering the drink driving limit

Drink driving arrests have fallen but some want to see a US style of enforcement
aimed at preventing persistent drink drivers from consuming alcohol

Currently, the drink driving limit is set at 80 mg of alcohol per 100 ml of blood.  There’s no way of saying how much alcohol consumption that equates to but the safest rule is not to drive after you’ve had a drink.

I encounter a lot of people who drink, believe they are under the drink driving limit and then drive home – or who get up in the morning thinking that the alcohol will have been eliminated from their system.  It’s hard to judge the point you’ll exceed the limit.

At the recent Police Federation conference, speakers called for a reduction in the drink driving limit for England and Wales to reflect the lower limit in Scotland where an offence is committed if you drive with 50 mg of alcohol per 100 ml of blood.

The main driver behind this change has been the increase in women drink drivers over recent years relative to offences committed by men.  Chief Inspector Victoria Martin told the Daily Telegraph:

“We’ve seen a steep decline in men drink driving over the years, with targeted advertising campaigns, which is great, but women don’t seem to be getting the same message. 

"It seems we have a worrying trend, with females still flouting the drink driving limit, sometimes scarily unaware, putting themselves and others in danger as well as adding to the drain on police resources.”

Drink driving convictions among women
remain stubbornly high

The call by the Police Federation was backed by Northumbria’s Police and Crime Commissioner, Vera Baird, who is a former MP and former Solicitor-General for England and Wales under Gordon Brown.  In London, too there is a strong and persistent campaign to get tough on people accused of drink drivers with Mayor Boris Johnson (who is also effectively Police and Crime Commission for London) attending anti-drink driving campaign rallies as long ago as 2008 and the head of the Metropolitan Police calling for a US style system that prevents drink drivers getting drunk:

"One of the local district attorneys decided that instead of trying to stop drunk drivers driving, why not stop the driver getting drunk,

“If you got convicted of a drink driving offence, [then] twice a day you get tested for drinking and that had a massive impact on road safety, people did not go out and kill people on the roads.”

In Thames Valley, the police recently cracked down on drink drivers and arrested 273 people in the space of a single month.

Over the past few years, magistrates’ courts have become much tougher on drink drivers.  Not so long ago, a first time offender could almost be guaranteed the minimum 12-month disqualification if he pleaded guilty; however, the courts have adopted a much stricter approach.  This means that they are very reluctant to reduce disqualification periods for first time offenders without significant mitigation being put before them by the driver’s solicitor.

It is clear from both the rhetoric emanating from the Police Federation and Police and Crime Commissioners that there is an appetite for toughening up the law on drink drivers.  This is reflected in police crackdowns and the much stricter sentences handed down by sentencing courts.

England and Wales will follow Scotland in reducing the drink driving limit there is no doubt about that.  The only question is when it will happen.  While it is not a priority for this government, don’t be surprised if David Cameron sees political capital to be gained by showing he is tough on crime and ordering a crackdown on drink driving offences, including a reduction in the drink driving limit, by the end of this Parliament.