GQS Solicitors

Drink Drive

1] Breath Cases – Key Points 

  • The legal limit in an alcohol breath test is 35 microgrammes of alcohol per 100 millilitres of breath (µg%). 
  • A motorist who’s breath reading is 39µg% or less will not usually be charged. This is because the Evidential Breath Machine (EBM), even when calibrated, can over-estimate a person’s breath reading.
  • If you provide a breath reading of 87.5µg% or above, you will be branded a ‘High Risk Offender’. This means that you will be required to undertake and pass a DVLA medical before you’re entitled to your licence back. You can read more about the High Risk Offenders Scheme here.
  • The Magistrates’ Court Sentencing Guidelines state that a custodial sentence starts when a person blows 120µg%, even if they’re a first time offender.
  • The minimum disqualification period available is 12 months (based on a breath reading of 40µg%), providing a special reasons argument has not been advanced. This can be reduced to 9 months with a Drink Driving Rehabilitation Course.
  • A previous conviction for drink driving within 10 years will increase the overall disqualification to three years.


Do you have a statutory or common-law defence?

Don’t worry if you’re not sure GQS Solicitors can talk you through your options and identify any available defence immediately.

  • Is the evidence against you strong enough to prove each and every element of the offence beyond all reasonable doubt?
    Due to funding shortages and administration problems, the CPS rely on people pleading guilty at the first court hearing. By pleading not guilty, you force the CPS to provide the evidence within 28 days.
  • Did the officer lawfully obtain two specimens of breath from you whilst contemporaneously completing the MGDDA document?
    If there is fault with the evidence, our team will find it. This could secure your acquittal.
  • Was the completing officer (and device operator) correctly trained and authorised to conduct the evidential breath test procedure?
    Many officers do not receive formal training and cannot produce a verified training certificate.
  • Was the Evidential Breath Machine correctly calibrated and serviced inline with the strict requirements implemented when the device was type-approved?
    Our team of independent experts will consider all aspects of the device’s functionality. EBM’s are discussed in more detail towards to end of this page.
  • If the evidence is not provided by the CPS, before the trial, you should not be convicted.
    In 2015, over 85% of cases that proceeded to trial had evidence missing. This would likely lead to the case against you collapsing


Drink Driving Charges: Sentencing Guidelines

Below are the Magistrates’ Court Sentencing Guidelines. These are used by courts across England and Wales when sentencing for a drink driving offence. 


Drink Driving / Driving with Excess Alcohol

Breath alcohol level (mg)Blood alcohol level (ml)Urine alcohol level (ml)Starting pointRangeDisqualification (first offence)

Disqualification
(2nd offence
in 10 years)
36 – 5981 – 137108 – 183Band C fineBand C fine12 – 16 months36 – 40 months
60 – 89138 – 206184 – 274Band C fineband C fine17 – 22 months36 – 46 months
90 – 119207 – 275275 – 366Medium level community orderLow level community order – high level community order23 – 28 months36 – 52 months
120 – 150 and above276 – 345 and above367 – 459 and above12 weeks custodyHigh level community order to 26 weeks custody29 – 36 months


CHALLENGING THE BREATH TEST MACHINE

Software, Components and Type Approval
Any modifications, replacement components or software upgrades could affect the device’s Type Approval. Often, due to lack of knowledge and training, police forces don’t realise that they are required to obtain a new approval order in these circumstances, thus rendering the device non-evidential.

Calibration, Service and Maintenance
All the devices should self-calibrate at the beginning and end of the cycle. They do this by running a compressed mixture of alcohol vapour supplied by the ‘gas simulator’ to the machine. The vapour is set at the legal limit of 35µg%. Due to the complexities surrounding the functionality of an evidential device, they can very quickly go wrong, particularly if not correctly maintained. As specialist defence solicitors, we would usually obtain copies of the calibration records, service records and maintenance logs. The CPS may drop your case rather than release these records (usually if there’s fault with this evidence).

Interfering Substances, Mouth Alcohol and Organic Contaminants
The second generation of EBMs currently used in the UK were first introduced in 1998. As such, the technology used is unpredictable and outdated (using infra-red light or fuel cells). Consequently, a device may fail to detect any substance that could falsely inflate your breath reading (such as medication, mouth alcohol, reflux etc.). This could exist if there is a disparity between the two breath readings provided on the EBM.

Timings, Operational Sequence and Documentary Evidence
The printout provided by the police should illustrate the device’s operational sequence. For example, the Lion Intoxilyzer gives the subject 3 minutes in which to provide his first specimen, and a further 3 minutes to provide his second. All the associated timings should be detailed on the printout.

If you are charged with drink driving, we may use one of a number of defences in court. A few examples include ‘the hip flask defence’, arguing post driving consumption, and technical defences.


2] BLOOD SAMPLES

You may be surprised to find out that there is no immediate option to provide a specimen of blood at the police station. A specimen of blood can only be provided if:

  • There is no evidential breath testing device available at the police station
  • You are not able to provide a specimen of breath due to a medical reason
  • The evidential breath testing device has produced an unreliable or inconclusive reading
  • You were taken to the hospital rather than the police station

The police cannot charge you with drink driving before the results of the blood specimen have been obtained. This means that you could remain on police bail for up to six weeks with little information about what’s going to happen or what to expect. 


  • Do you have a statutory or common law defence?
    If you are unsure whether or not this applies to you, the team here at GQS Solicitors will be more than happy to talk you through your options. We will be able to immediately identify any available defence.
  • Were all the correct procedures completed before a sample of blood was taken, including two 25 page legal documents?
    A fault with the evidence presented against you could secure your acquittal. If there is a fault, our team will find it.
  • Did the officer have the power, under statute, to require you to provide a specimen of blood?
    An officer cannot simply request a blood sample, he must have the legal authority to do so. If he was acting outside of his power – the case against you would collapse.
  • Did you provide your clear and unconditional consent to giving a blood sample, and does the CPS have the relevant certification to prove that your consent was obtained?
    Contrary to what the police believe, consent cannot be proven by the word of an officer, there are legal certificates that exist to prove consent. No legal certificate means no case against you.
  • Were you provided with part of your own specimen?
    A failure to provide you with part of your sample would render the CPS’s sample inadmissible, leading to a complete acquittal.
  • Was a fluoride preservative and anticoagulant added to your sample before it was sent to the laboratory and was your sample shaken for the required period?
    This procedure ensures the stability and accuracy of your blood sample. If the correct chemicals were not added, the sample may change in alcohol concentration.
  • Did the sample vial contain all the relevant information and was it sealed in a tamper-proof evidence bag?
    Without this information, the CPS would struggle to establish continuity. The court must be certain that the sample received by the laboratory belonged to you.
  • Can the CPS prove that the sample was stored in stable conditions prior to being sent to the laboratory?
    Storage conditions are one of the most important factors that should be considered in a drink driving blood case. From storage in police vehicle footwells to police officer’s pockets – we’ve seen it all.
  • Was the sample analysed with an approved and recognised method, and was this correctly documented?
    At GQS Solicitors we know the ins and outs of forensic analysis when it comes to blood tests for drink driving. If you’d like to put our knowledge to the test – don’t be afraid to call us.
  • Can the CPS prove each and every element of the offence so that the Court is "sure"?
    Often, the CPS expects people to plead guilty at the first court hearing in a drink driving case. Because they rely on this to such a great extend, evidence is often incomplete or non existent. By pleading ‘not guilty’, you are forcing the CPS to provide the evidence against you within 28 day period, and this often causes problems for the prosecution.


The MGDDA AND MGDDBPROCEDURE

There are only four circumstances where a police officer can request a specimen of blood at the police station:

1. No evidential breath testing device is available
2. You’re unable to provide a specimen of breath due to a medical reason
3. The evidential breath testing device produces an unreliable or inconclusive reading
4. You were taken to the hospital rather than the police station.

The first stage of defending against any drink driving blood test case is to consider whether the police officer’s request fell under one of these circumstances. If it didn’t – the case goes no further.

If it did – we must then consider whether or not the officer completed both the ‘MGDDA’ and ‘MGDDB’ documents. The MGDDA and MGDDB are guides that were first introduced to generalise police procedures and to help prevent officers from obtaining unreliable and unlawful drink driving specimens of blood.

Blood cannot be obtained immediately upon arrival at the police station. Police guidance advises that breath be considered as a starting point (as it is the quickest specimen to obtain and gives instantaneous results). It is for this reason that an officer should first complete the MGDDA document (which details the breath procedure). 

Once the completing officer becomes aware that breath cannot be taken, he must then consider the reason for this. Assuming this reason falls under one of the four circumstances above, he should then go on to complete a second booklet, known as the MGDDB document. This document also contains in excess of 20 questions and a number of legal requirements.

Both documents should be completed in your presence and can take up to 30 minutes each to complete. If they weren’t, it’s important that you call us immediately for advice.


DRINK DRIVE DEFENCES

1] Identification

This defence is applicable to the following offences:

  • Drink driving
  • Failing to provide
  • Drug driving
  • Drunk in charge
  • Driving whilst unfit through drink or drugs.

Identification is a crucial element of any criminal offence. The court must be certain that the accused is the individual who committed the offence. Identification must be proven beyond all reasonable doubt. If the police witnessed you driving the vehicle, identification is unlikely to be contested by the defence. However, if you were not in the vehicle when the police arrived, even if you had previously driven the car, identification is likely to be ‘in issue’. There is nothing stopping the defence from ‘putting the prosecution to proof’ on this element of the offence.


Circumstantial Evidence of Identification

  • Circumstantial evidence that usually exists:
  • The vehicle was warm
  • You were stood near or beside the vehicle
  • The vehicle belongs to you
  • You did not give an explanation as to why you were at that location
  • A witness claims to have seen you driving the vehicle You made a roadside admission to an officer or witness
  • Circumstantial evidence is unlikely to be sufficient to prove, beyond doubt, that you had driven the vehicle.


2] Procedure

This defence is applicable to the following offences:

  • Drink driving
  • Failing to provide
  • Drug driving
  • Drunk in charge
  • Driving whilst unfit through drink or drugs.

You will know by know that if the police fail to adhere to statutory safeguards and mandatory procedures, the prosecution’s case will fail. This is accepted by all parties.

When challenging procedure, we will need to obtain:

  • CCTV of the custody checking-in procedure
  • CCTV of the breath test procedure (if applicable)
  • The relevant MGDD document/s
  • Section 4 RTA Assessment Form (if charged with a Section 4 offence)
  • Witness statements from the procedural officer.


3] Private land

This defence is applicable to the following offences:

  • Drink driving
  • Drug driving
  • Drunk in charge
  • Driving whilst unfit through drink or drugs.

The offences listed above can only take place on a road or public place. If the ‘incident’ occurred on private property, the court cannot convict you. The police will often claim that a location is public if the public have unrestricted access to it. This is not correct. The public may have open access to your driveway, but this will not make your driveway a public place.

In order for the CPS to prove, beyond doubt, that the location is public, they must show – firstly – that the public use that location as ordinary members of the public (and not a special class of people with a particular interest in that location) and – secondly – that they did this with the permission of the owner of the land (the proprietor).


3] Reasonable Excuse

This defence is applicable to the following offences:

  • Failing to provide a specimen of breath, blood or urine.

Reasonable excuse is your reason and your excuse for failing to provide a specimen. 

The obligation falls on the defence to establish an ‘evidential basis’. This can be done by obtaining favourable expert evidence. Once this threshold is achieved, the CPS must disprove our defence to the criminal standard – beyond all reasonable doubt. This can be particularly difficult, mostly because the CPS doesn’t have the funds or resources to instruct its own independent expert.


4] Post Driving Consumption (the hip flask defence).

This defence is applicable to the following offences:

  • Drink driving
  • Drunk in charge
  • Drug driving.

It is a statutory defence if you consumed alcohol (or drugs) after driving the vehicle (or being in charge of it) but before the evidential test. The most common situation where this defence may arise is following a road traffic accident (where an individual may consume alcohol or drugs to calm their nerves).

It does not matter where the alcohol was consumed from or in what form.

The obligation falls on the defence to prove, on a balance of probabilities, that you would not have been over the prescribed limit at the time of the alleged offence. We must also show that the stated alcohol intake could account for the evidential breath reading provided. Once the defence have discharged this burden of proof, the CPS must then disprove it beyond all reasonable doubt.

Expert evidence will be crucial. GQS work closely with a number of highly respected expert witnesses, toxicologists and forensic scientists. The expert producing the report will consider all the factors that will affect alcohol elimination and absorption (such as height, weight, age etc…). They will then conduct a “Back Calculation” to determine the levels of alcohol in your body at the time of driving had the ‘post driving’ alcohol not been consumed. This will usually be presented in a Section 9 Report (Criminal Justice Act 1967).

Post driving consumption is a very common defence and must be handled correctly. The courts are growing increasingly suspicious of those who claim to have consumed unbelievable amounts of alcohol after driving for no apparent reason. The success of this defence will often rest on the credibility of the individual relying on it.

5] Special Reasons 

A ‘special reason’ is not a defence but does give the court discretion not to impose a disqualification. A guilty plea must be entered to the offence before a ‘special reason’ argument can be advanced. This defence is applicable to the following offences:

  • Driving in an emergency
  • Short distance driven
  • Spiked drinks
  • Reflux.


DELAY IN ANALYSING BLOOD SAMPLES

Due to continual failings by the police to correctly process and store forensic samples, the government commissioned an investigation by the HM Inspectorate. The report that was produced advised that forensic samples be processed onward to laboratories within one week of being taken. This is because the police station fridge is not suitable for long-term storage of forensic samples.

Blood is an organic material and will decompose over time. A result of this is that alcohol is created in the blood (a process known as fermentation). Each time a refrigerator door is opened, the temperature inside the fridge will fluctuate, this can disturb the stability of the specimen and may speed up the fermentation process. 

One way to prevent this from happening is to add a preservative to the sample, such a sodium fluoride. Often – due to lack of training – officers fail to ensure that this preservative is evenly distributed within the vial, or even added at all. The result here is that the sample finally analysed by the laboratory contains a higher alcohol concentration than what was in your body at the time it was taken (often enough to considerably inflate your blood alcohol reading), resulting in a prejudicial charge.


STREAMLINED FORENSIC TOXIOLOGY REPORT

If your sample is above the prescribed limit for blood, you will be charged and bailed to court. The first court hearing is hugely important – as this is the first opportunity we will have to consider the evidence against you and enter a plea with the court. On this date the CPS should provide a report detailing the analysis of your blood sample – known as the MG22(b) or ‘Streamlined Forensic Toxicology Report’. This report should contain all the relevant technical information that we would need to check, including:

  • The method of analysis used
  • A unique barcode for tracing purposes
  • The condition of the sample and its packaging upon receipt
  • The date the sample was received by the laboratory
  • The amount deducted from the sample for analytical variation
  • The level of alcohol found in the sample
  • The name of the Forensic Scientist overseeing the analysis.

We would first begin to cross-reference this report with the MGDDA and MGDDB documents. Any inconsistencies or discrepancies with the report would quickly be highlighted to the prosecutor, who may agree immediately to drop the case (if there is no realistic prospect of a conviction). Alternatively, we may decide to keep the issue quiet and raise it at a later date when it would do more damage to the CPS’s case.

Our specialist defence solicitors consider each and every piece of prosecution evidence in detail. The CPS may try and ‘pull a fast one’ by presenting only streamlined information, but this is insufficient. If a ‘Streamlined Forensic Toxicology Report’ is served on your first court date, it is more than likely that we would ‘reject’ this report and request a ‘full evaluative statement’ – which should be provided within 28 days (although we are yet to receive one within this time limit).

The full statement should address any issues raised re the analysis of the sample. Our aim is to have any evidence relating to the blood analysis excluded under section 78 PACE 1984. This could be achieved by showing that:

  • 1. The full evaluative statement fails to address all forensic issues raised by the defence
    2. The CPS have failed to provide the full evaluative statement or they have served it out of time
    3. 
    The full evaluative statement is produced by a forensic scientist who had no involvement in the analysis of the sample, meaning the statement falls foul of the ‘hearsay’ provisions and is deemed inadmissible
    4. The full evaluative statement concludes that the blood sample was not received in a suitable condition and/or that any results provided by the laboratory may be inaccurate.


3] URINE SAMPLE

The law states that you have one hour to provide two specimens of urine. The first sample is obtained and discarded by the officer (it is during this attempt that you are required to empty your bladder, but this cannot be into a toilet). You should then be given a period of time – often around 40 – 60 minutes – to refill your bladder. 

The second sample is then obtained, retained and split into two. Part of the second sample is provided to you, the other part is the evidential sample that will be sent to the laboratory.

The majority of urine cases we win will fail because of one of the following reasons. If you think any of the points set out below may have happened to you, it’s crucial that you call us immediately. The starting point when challenging a drink driving urine case is to consider the following:

  • Do you have a statutory or common law defence?
    Don’t worry if you’re not sure. GQS Solicitors can talk you through your options and identify any available defence immediately.
  • Were all the correct procedures completed before a sample of urine was taken, including two 25 page legal documents?
    If there is fault with the evidence, our team will find it. This could secure your acquittal.
  • Did the officer have the power under statute to require you to provide a specimen of urine?
    An officer cannot simply request a urine sample; he must have the legal authority to do so. If he was acting outside of his power – the case would collapse.
  • Were you provided with part of your own specimen?
    A failure to provide you with part of your sample would render the CPSs sample inadmissible, leading to a complete acquittal.
  • Was a preservative tablet added to your sample before it was sent to the laboratory and was your sample shaken for the required period?
    This procedure ensures the stability and accuracy of your urine sample. If the correct chemicals were not added, the sample may change in alcohol concentration.
  • Did the sample vial contain all the relevant information and was it sealed in a tamper-evidence bag?
    Without this information the CPS would struggle to establish continuity. The court must be certain that the sample received by the laboratory belonged to you.
  • Can the CPS prove that the sample was stored in stable conditions prior to being sent to the laboratory?
    Storage conditions are one of the most important factors that should be considered in a drink driving urine case. From police vehicle footwells to police officer’s pockets – we’ve seen it all.
  • Was the sample analysed with an approved and recognised method and was this correctly documented?
    At GQS Solicitors we know the ‘ins and outs’ of forensic analysis. If you’d like to put our knowledge to the test – don’t be afraid to call us.
  • Can the CPS prove each and every element of the offence beyond all reasonable doubt?
    Due to funding shortages and administration problems, the CPS rely on people pleading guilty at the first court hearing. By pleading not-guilty you force the CPS to provide the evidence within 28 days.


There are over 10 differentroutes an officer can take to obtain a specimen of urine. He must have the lawful authority to take the chosen route and this must be documented correctly in the MGDDB document – it’s no wonder it can often become confusing and overwhelming.

GQS Solicitors recognises that each case falls on its own facts and no two cases are the same. We often win drink driving urine cases using complex legal arguments and unique defence strategy. 


Drunk in Charge of a motor vehicle

The law is clear – it is an offence to be in control of a motor vehicle whilst over the prescribed limit.

The penalty for a Drunk in Charge offence can range from 10 points to 6 weeks in prison, depending upon the breath reading provided and the circumstances of the offence.

GQS Solicitors are a team of specialist motoring defence solicitors. We have years of experience challenging motoring offences and exceeding client’s expectations. We believe that every person has the right to quality legal representation.

Despite the potential penalty for a Drunk in Charge offence, there is no single test to determine whether a person is in control of a vehicle. This often leads to confusion amongst the police and can result in the police incorrectly charging people without all the necessary evidence.

Simply being sat in the vehicle does not mean that you are in control of it. The court will consider the following circumstances;

  • How far you were from the vehicle;
  • What you were doing at the relevant time;
  • Whether you had the ignition key;
  • Whether there is evidence that you were about to drive the vehicle

Many people believe that this offence was created to prevent people ‘sleeping it off’ in their vehicles. Whilst this is one reason, there is perhaps a more important reason as to why this offence was created. Consider the following.

In many cases, the police cannot prove that you were driving the vehicle (because you had stopped by the time they arrived), but may be able to prove that you were in control of it. If only one offence of drink driving existed, a huge number of people would avoid convictions due to insufficient evidence. It’s a lot easier to prove that someone was in control of a vehicle, than to prove that someone was driving it.


Driving or attempting to drive whilst unfit through drink


  • Under section 4(1) of the Road Traffic Act 1988 it is an offence for a person to drive or attempt to drive a motor vehicle on a road or other public place whilst unfit to drive through drink.

Driving whilst unfit is a serious offence. If the police are alleging that you were unfit, it is crucial that you consider your options prior to the first court hearing, as it is possible that you have been charged with the wrong offence. Due to the similarities between driving whilst unfit and drink driving, the police often get confused between the two. If you provided a breath, blood or urine sample over the prescribed limit at the police station, you should be charged with drink driving, not driving whilst unfit.

Of course, it is always open to the police to charge you with driving whilst unfit even where an evidential sample has been provided. But there is little sense in doing this as it is much harder to prove that you were ‘impaired’ than proving that you were over the limit. In the majority of cases that GQS Solicitors defend, the CPS will realise the mistake made by the police and attempt to amend the charge to drink driving. However, this may not be as simple as it sounds, particularly if trying to amend a charge after the first court hearing. An inaccurate or defective charge can lead to a failed prosecution, so it is crucial that we don’t ‘tip’ the CPS off.

If you think you may have been charged with the wrong offence, please call us immediately. The earlier the team at GQS Solicitors can intervene, the earlier we can safeguard your position and identify the defence strategy.

Proving that you were ‘impaired’

To achieve a conviction, the CPS must prove that you were ‘impaired’ as a result of the alcohol consumed. To do this, they may need evidence that;

  • You were unsteady on your feet
  • Your speech was slurred
  • You smelt of intoxicants
  • Your eyes were glazed
  • You provided a positive breath sample
  • Your driving was erratic
  • You failed a Field Impairment Test

“through drink”

The difficulty for the CPS arises when trying to prove that any impairment was as a consequence of any alcohol consumed. What if you were impaired because you were tired? Or because of a drug that had been consumed, whether illicit or not. This may be the reason why you were driving erratically. This may amount to a defence.

Our team would be happy to discuss your case in detail with you, completely free of charge. You may not realise that you have a full defence to the allegation. Please call us immediately.

Penalty

The minimum penalty for driving whilst unfit is a 12 month disqualification. The maximum penalty is 6 months imprisonment. The court has the option to impose an immediate disqualification up to 36 months and a fine up to £5,000.00.
The court also has the option to impose a community service order.

The penalty imposed will depend upon your level of impairment. It is for this reason that you take the opportunity to consider the evidence against you (which may not be provided on the first court date). You may dispute the facts alleged by the police (who may exaggerate your level of impairment). This, of course, would have a direct bearing on the penalty imposed if convicted. Our team have the technical expertise to secure your acquittal.

 

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