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.

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.

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.

Recent case: drink driving appeal

Some questioning by the police at the roadside may breach police rules

A little while ago we represented a lady accused of drink driving at the magistrates’ court.  She lost her trial, quite unfairly her solicitor, Nick Diable, thought.  The appeal court agreed because last Friday they quashed her conviction and substituted a not guilty verdict.

Her troubles began when the police received an anonymous call from a member of the public claiming our client was a drink driving.  The police arrived at her home some time later, by which time she had consumed some alcohol with a friend.

The prosecution had relied on evidence from a police officer that was obtained quite improperly.  There are strict rules for when police officers may question a suspect and how they should go about doing so.  In this case, the police had questioned our client in her home and she had admitted driving the car; although she did not admit to have consumed alcohol before driving.  This particular police officer had breached the rules three times by:

·         Failing to caution the suspect;

·         Refusing her access to legal advice; and

·         Failing to properly record the interview (there were actually a number of separate breaches of the rules under this heading).

The magistrates who heard the original trial incorrectly refused to exclude the improperly obtained evidence.  Had they followed the law as they should have done then the prosecution case would have been over before it began.  Unfortunately, the magistrates did not follow the law and they compounded their error by failing to give sufficient weight to the evidence supplied by the defence, preferring instead groundless supposition put forward in the prosecution closing speech that had no foundation in any evidence before the court.

Nick advised his client to appeal the conviction and, last Friday, an appeal took place at a Crown Court in London.  Our client was relying on the “hip flask” defence, also known as “post driving consumption of alcohol”.  This is a defence in which you accept you drove and you accept you were over the drink driving limit when tested; however, you say that you only became over the drink driving limit after you ceased driving.

At the appeal hearing, the Crown Court applied the law properly and excluded the evidence of the police officer.  The police officer now gave evidence of a further admission to driving by the defendant that could not be excluded.  Because of that the case continued to a full re-trial.

During the retrial Nick Diable was again representing our client and he led the same evidence as at the trial.  This time he emphasised more strongly that the evidence from the defence had been the subject of cross-examination by the Crown and that the Crown had not been able to put up any evidence to contest the word of three separate witnesses for the appellant.

Nick reminded the court, as he had done at the original trial, that if they planned to convict then they must reach the conclusion that the three witnesses, all of whom were of good character and respectable people, had put their heads together to deliberately perjure themselves and pervert the course of justice; in other words that they had all conspired to lie.

The judge and magistrates deliberated and agreed that they could not conclude that the witnesses had deliberately lied.

Our client was acquitted.  We sought a Defence Costs Order to allow our client to record her legal fees in both the magistrates’ court and Crown Court.

If you find yourself accused of drink driving and you need an expert drink driving solicitor on your side then do not hesitate to contact us 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.

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