Alcohol Abstinence and Monitoring Requirement

Courts can ban you from drinking alcohol

THERE IS AN UPDATE TO THIS POST.

Back in 2012 Parliament passed a law called the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. This made a lot of changes, very few of them to the benefit of people accused of a crime.

Among the many things LASPO did was to introduce Alcohol Abstinence and Monitoring Requirement to England and Wales as part of a Community Order or Suspended Sentence Order. The idea of compulsory sobriety schemes comes from the USA where they are used as a way to tackle high level alcohol related crime, such as drink driving and violence. The British model is based on one used in South Dakota but with some differences. There the alcohol abstinence order is paired with education aimed at changing an offender’s behaviour. In Britain, the alcohol abstinence order will not be accompanied by any particular education scheme. You might think that opting out of the cost of education is doing the job on the cheap and thus far less likely to be as successful as that in South Dakota, but we couldn’t possibly comment.

Before a court imposes an Alcohol Abstinence and Monitoring Requirement they must establish that the defendant satisfied four conditions:

1.       Consumption of alcohol by the offender is an element of the offence before the court OR consumption of alcohol by the offender was a factor that contributed to the commission of the offence.

2.       The defendant must not be dependent upon alcohol.

3.       If the court imposes an alcohol treatment requirement it must not impose an Alcohol Abstinence and Monitoring Requirement as well.

4.       The court has been notified by the Secretary of State that arrangements for monitoring of the kind to be specified are available in the local justice area.

We have emphasised the words “by the offender” because experience suggests there will be some prosecutors and some courts who will attempt to impose one of these orders where the defendant was not drinking but others were.

Once satisfied that the four conditions are met the court can impose an Alcohol Abstinence and Monitoring Requirement that lasts for a maximum of 120 days. The order will require an offender to abstain from consuming alcohol throughout a specified period or prevent him consuming so much alcohol that the level of alcohol in his body rises above a certain level to be specified in the order. To enforce this, the defendant will be required to submit to monitoring of his alcohol level.

The court can impose exceptions, although it is not clear in what circumstances they would be – perhaps a court might allow you a drink for your birthday.

It should also be noted that LASPO defines alcohol to mean “anything containing alcohol”. This would seem to include chocolate liqueurs and food prepared using alcohol.

Currently, these orders are only available to courts in the South London Justice Area – think Camberwell Green Magistrates Court – but you can expect them to be rolled out across the country very soon.

We have noticed that the Metropolitan Police now make a standard request for an Alcohol Abstinence and Monitoring Requirement to be imposed on everybody they charge with drink driving regardless of whether that person is appearing in court within the South London Justice Area. This is a very strong suggestion that, once available elsewhere, the police and prosecutors will routinely ask courts to impose Alcohol Abstinence and Monitoring Requirements as part of the sentence.

If you are facing court and would like advice on this or any other aspect of motoring law then do not hesitate to contact Nick Diable at London Drink Driving Solicitor on 020 8242 4440.

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.

Reduction in driving ban: a case study

City of London Magistrates' Court

In a recent case, Nick Diable of London Drink Driving Solicitor, defended Mr S, who was accused of drink driving at the magistrates' court.  Mr S made it clear that he would be pleading guilty and would like some help reducing the length of the disqualification.

Mr S had been seen by police jumping a red traffic light and, when stopped, was found to be over the drink driving limit.  Mr S was arrested and taken to the police station where he the Evidential Breath Machine showed he had 74 mg of alcohol in 100 ml of breath, which is a little over twice the drink driving limit.  A first time offender should expect a driving ban of between 17 and 22 months upon conviction for a reading at that level.  Mr S's offence was aggravated by his jumping the red traffic light.

Mr S was advised to get character references that would show he is a responsible man who doesn't normally commit crimes.  S felt unable to approach anybody because he was genuinely ashamed that he had got behind the wheel while over the drink driving limit and couldn’t bring himself to tell people outside his immediate family - for obvious reasons immediate family are not the best character referees.

To his credit, Mr S had only driven a very short distance because he had quickly realised that his actions were a danger to others so had already ceased driving by the time the police followed him around the corner to stop him.  Nick was able to convince the court that as this offence was committed in the early hours there was nobody else about and so even though S jumped the red light there had been very little danger to other road users before S decided to stop driving.

S was genuinely ashamed of his actions and remorseful that he could have put other people in danger, even though he did not actually do so.  

After telling the court about the offence and S's attitude toward it, Nick told the court that they should reduced the driving ban to reflect both the mitigation and S's guilty plea.  This can be a difficult argument as many lawyers, judges and magistrates take the view that the driving ban is an ancillary order and not part of the sentence.  This means that it cannot be reduced to reflect a guilty plea and mitigating the length of the ban is much harder.

In this case, the magistrates’ accepted Nick’s submissions and agreed that the disqualification should be reduced both in light of the guilty plea and following the mitigation put forward by Nick on S’s behalf.

As a result, S was fined and disqualified from driving for 12 months.  He was allowed to take the drink driving rehabilitation course, which will further reduce his driving ban to 9 months instead of the starting point of up to 22 months.

Case report: successful submissions to the prosecution

EG was found drinking at the wheel of her car

A few weeks ago, Nick Diable of London Drink Driving Solicitor was instructed to represent a woman, who we’ll call EG, accused of drink driving.

The allegation was that on a recent Friday night she was drink driving her car while she had 64mg of alcohol in 100ml of breath.

Nick met EG before the first hearing took place – we always try to meet our clients well before court as that gives us the best opportunity to understand their account and gives them a chance to meet and ask questions of the solicitor who will represent them in court.  EG’s account was that she had driven to a night out with some friends.  The friends had been drinking during the journey and, although EG had consumed alcohol prior to driving she did not believe she would have been over the drink driving limit.  Once at their destination, EG parked her car and accepted some drinks from her friends.  This is called the hip flask defence and is so named because in the past men frequently carried hip flasks from which they would drink after crashing their cars.  It was said they did this to calm their nerves but it also effectively prevents a court finding against them in a drink driving trial, so who knows the real reason behind its origins.

EG accepted that she had been in her car with the lights on and engine running when she became over the drink driving limit and that she may have driven again that evening while she remained above the drink driving limit.  Nick advised her that on this account she was guilty of being drunk in charge of a motor vehicle but that the penalty would be either a short driving ban or 10 penalty points, i.e. far less harsh than a sentence for drink driving.  EG stated she was happy with 10 penalty points and would plead guilty to being drunk in charge if the prosecution could be persuaded by Nick to offer it.  A plan was agreed that Nick would obtain and consider the prosecution evidence.  If appropriate he would make representations that they should drop the case against EG.

We immediately asked for the prosecution evidence and received it the week before the first court appearance.  After analysing the evidence, it was clear that the prosecution lacked sufficient evidence to secure a conviction but could gain a conviction for being drunk in charge.  We made immediate representations to the prosecution that they should discontinue the drink driving charge – we deliberately did not ask them to substitute a charge of being drunk in charge because we are here to represent our client’s best interests not to advise the prosecution on potential charges they could bring against our client.  It has to be said that if they thought they could get a drink driving conviction based on the evidence they sent to us then you have to question whether they are at all familiar with drink driving law.

A prosecution solicitor who was clearly more familiar with drink driving law reviewed the evidence at court and agreed to substitute the drink driving charge for one of being drunk in charge.  This is a significant difference.  An alcohol reading of 64mg in breath on a drink driving charge would mean a 17 to 22 month driving ban plus a fine of 150% of EG’s weekly income.  Whereas a guilty plea to being drunk in charge would mean at worst a short driving ban and a fine of 100% of weekly income.

EG was very happy to plead to being drunk in charge as she accepted that she had committed the offence and should not have done so.

Nick Diable represented EG in court, telling the court that EG is a professional woman who recently graduated from university, holds a good job and has never been in trouble before – this is called personal mitigation.  Nick explained the circumstances of the offence and that EG fully accepted her guilty and offered the court her genuine apologies for committing the offence – this is mitigating the offence.  Learning how to mitigate is a very important skill for any criminal law solicitor and one I have discussed previously in other blogs.

The District Judge listened carefully and agreed to significantly reduce the sentence.  Instead of the short driving ban the judge could have imposed, he awarded 10 penalty points.  Instead of the 100% of weekly income fine that he would normally impose, the judge more than halved the fine.

EG was very happy with the sentence.

So, we can see that when a solicitor takes time to meet face to face with a client to discuss their case in detail, examines the prosecution evidence properly and acts on that information spectacular results can be achieved.

It’s always worth asking at the end of a case, how else could this have been approached?  The most obvious answer is that we could have kept quiet about the flaws in the prosecution case and gone to trial on the drink driving charge.  That was an option explained to EG, but she had very clear goals: first to end the case as quickly and cheaply as possible; secondly to keep her driving licence.  Taking the drink driving charge to trial would have been very good for us because it would allow us to charge EG more money, but that does not fit with EG’s stated goals.  One thing we will always do at London Drink Driving Solicitor is to work with a client to find out what they want to achieve in a case and then present the best options for achieving those goals, even if it means we can’t charge as much money because providing sound, honest advice is what we are all about.

If you would like to discuss a drink driving or drunk in charge case with Nick Diable get in touch on 020 8242 4440 or visit our website.

Special reasons: spiked drinks

Can you always tell whether anything has been added to your drink?

If a person is convicted of (or pleads guilty to) an offence of drink driving the court is required to disqualify them for a minimumof one-year (or three years if the person has a previous conviction within the past 10 years).  However, the court candecide not to disqualify if there is a special reason.  A common special reason is that a drink has been spiked (or laced if you prefer) with additional alcohol.

The law is relatively straightforward, the case of Pugsley v Hunter tells us that it is for the defendant to prove on the balance of probabilities, i.e. that what the defence says is more likely to be true than not.

Pugsley also gives us a test the court should apply when deciding whether there is a special reason, the three things the defence must convince the court of are that:

1.       The drink was spiked;

2.       The defendant did not know and had no reason to suspect his drink had been spiked; and

3.       But for the additional alcohol the defendant would not have exceeded the drink driving limit at the time he drove.

So far so simple, but how do we prove any of those things?  The best evidence is to get the person who spiked the drink to come to court.  They rarely get into trouble because most of the time it is done by somebody who doesn’t realise the defendant would go on to drive or it happens inadvertently.  If the spiker won’t come to court then we fall back on hearsay evidence – this is evidence that is not normally admissible but can be admitted if the court feels it is in the interests of justice of if the Crown agrees to it being given in court.  In very rare circumstances it gets through the backdoor, e.g. in an expert report the prosecution don’t read properly and object to in time.

Evidence of whether the defendant knew or should have known his drink had been spiked can only come from him or her.  Usually, the defendant should describe how the drink tasted compared to what he expected and what effect it had upon him after he drank it.  It can often be helpful to make a comparison to another well-known drink, e.g. “the spiked drink would be 12% alcohol, so no stronger than an average glass of wine”.

Finally, the defence must prove that the defendant would not have exceeded the drink driving limit at the time he drove but for the additional alcohol.  Pugsley v Hunter tells us that in most cases this must be done by expert evidence, the only exception is where it would be obvious to the layman that but for the additional alcohol he would not have exceeded the drink driving limit – such cases are very rare.  The expert uses the Widmark formula to calculate the likely blood-alcohol concentration (often called “BAC”) both at the time of driving and at the time the police took their specimen.  The additional calculation to the time of the specimen makes it very difficult for defendants to lie about their alcohol consumption and get the amounts correct – this is a fact that courts often fail to appreciate.

The law is reasonably simple in spiked drinks cases, the key is presenting the law in a clear and straightforward way, ensuring that the evidence is gathered correctly and put before the court in the best possible light to support your case.  In that respect an expert solicitor who has experience preparing and presenting these cases is the most important thing any defendant can find for themselves.

Does a guilty plea reduce a driving disqualification?

Should a judge reduce a driving disqualification if the defendant pleads guilty?

In most cases, somebody who pleads guilty to an allegation will receive a reduction in the length of the sentence imposed upon them, this is because section 144 of the Criminal Justice Act 2003 requires the sentencing court to take into account when the guilty plea was entered and the circumstances of the plea.

Criminal solicitors often talk about a defendant being “entitled to a sentence discount” in return for a guilty plea, this is not a true reflection of the law but in practice most courts will give a reduction to most offenders.

As this is a blog dedicated to drink driving law, we should look at what happens in those cases specifically and what we find is that the courts have historically being reluctant to discount the disqualification portion of sentences imposed upon drink drivers.  This is because many solicitors and judges consider the disqualification to be ancillary to the sentence rather than part of it.

I take the view that this approach is incorrect.  While a driving disqualification can be an ancillary order, (e.g. section 301 Criminal Justice Act 2003 allows a court to impose a driving disqualification where somebody fails to pay their court fines) that does not mean that it must always be so.  In this post I will set out the law both at home in England and Wales, in Scotland and the position according to the European Court of Human Rights .

Domestic law

First, if we look at the Road Traffic Offenders Act 1988, we find that Act gives the power to courts to impose penalty points and disqualification and it is worth noting that both powers are to be found in Part 2 of the Act, which is headed “SENTENCE”.  This to my mind is a strong suggestion that Parliament intended the driving disqualification to be part of the sentence and not an ancillary order.

Secondly, we can look at the case of Gemmell v HM’s Advocate; this is a Scottish appeal case in which the court was asked to rule whether a driving disqualification and penalty points formed part of the sentence.  Lord Justice Clerk headed a five judge panel and held, “[i]n my opinion, a period of disqualification from driving is a penalty… As such it is a ‘sentence… or other disposal or order.’”  He went on, “I consider that sentence discounting applies also to the imposition of penalty points for road traffic offences… The imposition of penalty points is a form of order that falls within the ambit of section 196.”  It should be noted that the court was considering the same Road Traffic Act and Road Traffic Offenders Act that is in force in England and Wales.  Also, the section 196 that Lord Justice Clerk refers to is the Scottish law version of section 144 of the Criminal Justice Act 2003; the relevant sections, contain identical wording.

Lord Eassie expanded on Lord Justice Clerk’s view in the same case saying, “I… agree with the view which is held by your Lordship in the Chair that being banned from driving or receiving penalty points are not distinguishable in principle from sentences generally when questions of discounting arise. Being disqualified from driving is a restriction on the liberty which the offender would otherwise enjoy to drive a motor vehicle; commonly presents substantial inconvenience; and may have financial consequences including the loss of employment.”

Decisions by Scottish courts are not binding on those in England and Wales but, where such senior judges have provided such detailed and thought out opinions they should not be ignored, although they frequently are in certain magistrates’ courts.

To the best of my knowledge no English court has directly considered whether a driving disqualification imposed on a defendant convicted of drink driving should be subject to the reduction in sentence commonly given; however, the case of R v Geale gives the matter a passing thought.  Geale is concerned with the sentence of a coach driver convicted of causing death by careless driving and whether a reduction in disqualification should be given if the driving disqualification is going to impact upon the offender’s livelihood.  But, the court does say in passing (or “obiter” as solicitors prefer to say) that the purpose of disqualification is to protect the public from the risk of re-offending, “[h]owever, such risk is not the only relevant criterion… In addition, there is or maybe an element of punishment; as is apparent from the fact that, even where the future risk is nil, the statutory provisions require a 12 month minimum period of disqualification.”  Although the court was talking about death by careless driving, the statutory provisions also require a 12 month minimum period of disqualification in drink driving cases.

Finally, when we look at the sentencing guidelines we see that the disqualification period is listed as part of the sentence and not under the section of the guideline that deals with ancillary orders.

Law from the European Court of Human Rights

The case of Welch v The United Kingdom involved a drug dealer attempting to convince the European Court of Human Rights that a confiscation order formed part of his sentence.  He lost, but the court considered when a court order is a penalty rather than anything else - and, if it is a penalty, then it must follow that it forms part of the sentence imposed upon that individual.  

First, they told us that a penalty is an “autonomous Convention concept”, which is to say that it does not rely on the domestic law of any of the Convention states, in other words it doesn’t much matter what domestic law thinks of the order in question.  Secondly, the Court tells us that when deciding if a court order is a penalty the first thing you must consider is whether “… the measure in question is imposed following conviction for a ‘criminal offence’”.  If it is then you consider other factors, such as:

·         Nature and purpose of the order;

·         It’s characterisation under national law;

·         Procedures involved in marking and implementing the order; and

·         It’s severity

In the case of a driving disqualification, there can be no dispute that a driving offence is a criminal conviction.  What is the purpose of the disqualification?  According to R v Geale the purpose of the disqualification is to protect other road users, but even the Court in Geale accepts that there is an element of punishment to the disqualification and Gemmell describes the disqualification as a deprivation of liberty.  What is the procedure for making and implementing the order?  The disqualification is imposed after conviction and during the sentencing portion of the case.  The court hears mitigation and varies the length of the disqualification accordingly, just as it does with any other sentence.  Once imposed, the disqualification is enforced through the immediate seizure of the defendant’s driving licence and the circulation of the disqualification to police forces nationwide.  How severe is the sentence?  In some cases, it will cost the defendant their job and their home; that seems pretty severe to me.

In Malige v France the European Court of Human rights considered whether the deduction of points (apparently in France a driving conviction loses you points rather than gaining them) amounted to a penalty.  The Court echoed the thoughts of our own Court of Appeal in Geale when they said that, “… although the deduction of points has a preventive character, it also has a punitive and deterrent character and is accordingly similar to a secondary penalty.  The fact that Parliament intended to dissociate the sanction of deducting points from the other penalties imposed by the criminal courts cannot change the nature of the measure.”

Based on Welch and Malige, we can see that the European Court of Human Rights views both driving disqualifications and the imposition of penalty points as part of the sentence imposed on a guilty defendant. 

Conclusion

It is clear that the European Court of Human Rights views disqualifications and points as part of the sentence, just as the Scottish court of appeal did when they considered the same issue.

English courts have not explicitly said that driving disqualifications are part of the sentence or that they should be reduced after a guilty plea - and many magistrates refuse to believe that it is - but given the authorities from Scotland and Europe it seems inevitable that they will eventually have to accept that driving disqualifications can indeed be reduced.

Special reasons: faulty home breathalyser

The Alcosense Elite is the breathalyser I use at home

Many of us keep a breathalyser at home to check that we are safe to drive the day after drinking (okay and maybe sometimes to see who can handle their drink best) but what if the machine gets it wrong?

At heart, most of the home breathalysers work using an infrared detector to count the number of alcohol molecules passing over the sensor; this is exactly how the police’s roadside breathalysers work.  It’s even how the Camic Datamaster and Lion Intoxilyser (two of the three evidential breath machines used in police stations) work – the Intoximeter EC/IR uses both infrared and fuel cell technology.  Given that they use the same technology as their professional counterparts you may well assume that the home breathalysers will be as reliable, but some reports have suggested that the home breathalysers are unreliable.

We are solicitors not toxicology experts so we are not going to consider the reliability of home breathalysers.  Instead we will look at what happens if you rely on one only to be let down.

Let’s clear one question up right away – if your breathalyser says you are under the limit but the police say you were over the limit, can that be a defence? No.  The law is quite simple, if you drive on a road or other public place with excess alcohol you are guilty of drink driving, it doesn’t matter why you did it.

But, the really interesting question (well to me, but then I am a solicitor who specialises in drink driving law) is whether reliance on a home breathalyser can amount to a special reason for not disqualifying.

Now, the court must disqualify a drink driver for a minimum of 12 months unless there is a special reason not to do so.  Way back in 1939 the High Court in Northern Ireland said that a special reason is something that should be considered by the court when it passes sentence and should be “directly connected with the commission of the offence”.  This was incorporated into English law when Lord Goddard gave judgment in the 1946 case of Whittal v Kirby.  But, it wasn’t until 1958 in the case of R  v Wickens that we finally got the modern definition of a special reason.  Mr Justice Devlin set out four points for a defendant to prove if he wishes to avail himself of special reasons.  The reason must:

1.       Be an extenuating or mitigating circumstance;

2.       Not amount to a defence to the allegation;

3.       Be directly connected with the commission of the offence;

4.       Be one that the court should properly take into account when imposing sentence.

This test has been severely restricted by subsequent cases; however, I have yet to find a case where somebody has relied on a malfunctioning breathalyser as a special reason – though this area of law is hardly fast moving when the main cases are over half a century old.

Broadly speaking special reasons in drink driving can be split into three categories: those explaining how the defendant came to be over the drink driving limit; reasons explaining why he or she drove above the limit; and anything else.

Let’s think about our situation where a man, we’ll call him Gary, has been out drinking one evening.  The following morning, he gets up, feels fine and blows into his breathalyser.  The breathalyser shows a reading of 20 mg of alcohol per 100 ml of breath, a reading well below the drink driving limit.  Gary decides he’s safe to drive.  Shortly after leaving home, Gary is involved in a minor road traffic accident, the police arrive and breathalyse him.  The roadside test comes back showing Gary is over the limit – the evidential breath test at the police station confirms this and Gary is charged with drink driving.

Gary’s account is one that explains why he drove while over the limit.  But does it meet the other criteria?

Is being misled by a malfunctioning breathalyser mitigating or extenuating?  I would say that it is because it goes to show that Gary was being careful and attempting to avoid drink driving – it was not something that he set out or wanted to do.  That is mitigating in my book.

Is Gary’s account a defence in law to drink driving?  Nope.

Is his account directly connected with the commission of the offence?  Yes.  If Gary is to be believed, he was being as careful and would not have driven had the breathalyser indicated he was over the drink driving limit.  He therefore only drove because he was misled by the device he purchased to prevent him drink driving.

Should the court take this into account when passing sentence?  That’s a matter for the magistrates but I would be surprised if a court said no.

So, on the face of it a misleading reading from a home breathalyser is capable of amounting to a special reason.

If you have been accused of drink driving you can get expert legal advice from London Drink Driving Solicitor on 020 8242 4440.