This is a complex
and serious area of law therefore we offer a FREE online case consultation service in relation to such cases. Accused of
being a Drink/driver then ask us about
your own case
Drink/drivers should be aware that there is a legal presumption taken from section 15(2) Road
Traffic Offenders Act 1988 that the proportion of alcohol in a drivers
breath, blood or urine at the time of the alleged offence was
not less than in the specimen.
This means that the defence require to establish the defence if the
driver claims that he/she had been drinking after the incident but prior
to giving a sample. Check section 15(3) - if the driver establishes the
matters set out at section 15(3) on a balance of probabilities then the
defence is made out and must be rebutted by the Crown case. This type of
defence is common in practise but uncommon in success. It is often
referred to as "The hip flask defence" coming from the term used in a
case where the accused claimed that after a crash he had taken a few
drinks from his hip flask to calm his nerves. Sheriffs tend to take the
view nowadays that anyone who has been involved in a road traffic
accident will expect to be tested and would be extremely unwise to
consume any more alcohol in these circumstances. It is therefore VERY
difficult to establish such a defence.
It is not impossible but will usually require the evidence of an
independent forensic toxicologist who can provide a detailed
report that will hopefully support the accuseds' explanation of the
amount of alcohol consumed and when.
The defence must call scientific evidence on the point unless it is
obvious to a layperson that the post offence consumption of alcohol
explained the excess. Never assume that it would be obvious, you would
generally always be wise to seek out a report and to forward a copy of
same to the Crown well in advance of the trial to have it agreed
wherever possible. Reports normally cost in the region of £250+Vat to
prepare however if you require your expert to come to court to give
evidence this can be very expensive. It will depend upon the time taken
for the witness to be called and to give evidence.
If a driver provides a specimen a long time after the driving offence
and this proves to be below the limit the forensic experts acting for
the Crown may provide a report indicating that at time of offence the
blood alcohol was over the limit and therefore the driver may still be
prosecuted. This is not something that happens very often probably
due to the evidential issues and difficulties n presenting the case in a
The expert will provide a report setting out his presumptions and the
mathematical calculations used in coming to any conclusion.
To be successful you really need to provide the expert with as much
accurate information as possible otherwise there will always be an
element of guesswork about the process and this will work against you.
Although the defence ONLY requires to be made out in the Balance of
probabilities you will find that this is still a high standard. It is
worth instructing a specialist law firm to assist with this whole
process but however you proceed there will be a set amount of
information that your expert requires. It can be worth calling the
forensic department of your local University to see if they have an
expert available and then ask them to fax you a list of they require.
They sometimes have a form that you can use to provide the required
- Full detail of any food consumed from six hours before the
- Weight, height, build, age and sex
- Known medical condition (Acid reflux, irritable bowel etc)
- Medication taken regularly, or within 6 hours prior to drinking;
- Type and quantity of alcohol consumed before the offence and, if
possible, the times at which the units of alcohol were consumed.
Brand names ok and provide the actual containers that the drink was
consumed from eg Glass marked with the measure taken.
- the same information concerning any alcohol that you consumed
after the offence but before you gave the specimen for the test.
This is a complex area of law and there are a great many cases that
have assisted us in the definition of what is and is not a "reasonable
excuse". It is not a reasonable excuse to state that you did not give a
sample because you wanted your lawyer to be present. Nor is it a
reasonable excuse to refuse to provide a specimen of breath or other
sample simply because you had not been the driver.
The main successful area of reasonable excuse has tended to be cases
where there is a genuine medical problem such as Asthma or real phobia
of needles etc. Medical evidence of such a phobia or condition will
require to be obtained and examined. Simply because you are asthmatic
will not preclude you from providing a sample. The court will require
full details about your condition and how it would affect your ability
to provide a sample. Expert evidence may be required in relation to your
psychological state as this could also have had a bearing on whether or
not you could commit this offence.
Once such a defence is raised, the onus is upon the Crown to prove
beyond a reasonable doubt that it has failed and that you are therefore
guilty of the offence.
Failing to provide a sample is a very interesting area of
defence and we have had a great deal of success in defending such cases.
We do not wish to publicise just how we have been successful as this is
a competitive area of the law and we all guard our knowledge jealously.
If you want the benefit of our success in this area pleas e call or
provide us with some of your case details online.
An area of some confusion as the motorist tends to believe that they
have a choice about what type of sample is given and how and where it
should be given. You will find that the police officer requesting the
sample can decide what type of sample is to be used. Sections 7, 8 and 9
of the Road Traffic Act 1988 set out procedures which must be
followed by the police when laboratory samples of blood or urine
are taken. Sometimes police officers fail to follow the strict
guidelines that are laid out in the forms that they use as an aide
memoir when following the procedure and then he defence have an
opportunity to win their case!
The admissibility of those specimens in excess alcohol cases depends
upon the procedures being followed strictly. The procedures are set out
in this manner to secure a fair and just process that is beyond
As a suspected driver you are legally obliged to provide a sample
where an officer has reasonable grounds to suspect that you have driven
a vehicle whilst under the influence of drink or drugs. Do not refuse to
give a sample because you were not driving or you were not driking- Bad
idea to refuse as this is a separate offence. Let the lawyers sort out
the presentation of the defence at court. It is best for you to
cooperate fully with the testing process and procedures and simply note
carefully what is being said to you and what is going on.
Before a sample is taken the driver needs to be told:
- The reason why breath cannot be used as a sample;
- That the officer will decide that the sample will be Blood or
Urine and what it will be.
- Tell you that if you refuse then this is a separate offence. I
tend to think they should also tell you that you will most likely be
disqualified from driving or holding a licence if you fail to
- If they want to take blood they require to ask about medical
conditions or any reason to refuse such a specimen. (The police
casualty surgeon is called out to take a sample of blood from you)
Section 8(2) of the Road Traffic Act, a driver may choose to replace
a breath specimen by supplying a lab sample in the following
- Where the specimen of breath exceeds the statutory limit; but
does not exceed 50 microgrammes of alcohol in 100 millilitres of
The police officer then require to inform you
- You are entitled to have this specimen replaced by a specimen of
blood or urine; but it will be for the police officer to decide
whether the replacement specimen is to be of blood or urine.
- He has to check if the driver has any medical reasons why
a sample of blood cannot or should not be taken from him.
There are sometimes failings in this process and we find that we can
successfully defend motorists in such cases where the police have failed
in the procedure required of them.
The test of whether the officers failure has caused a fundamental
breach of procedure that cannot be cured is usually a matter for the
Sheriff however in circumstances where the police officer has failed to
check if you have any medical condition that precludes you from giving
such a sample we can safely say that we should win that point and save
your driving licence.
Sometimes samples are taken from a driver when he/she is in the
process of receiving treatment following a road traffic accident. Again
this is an area of law where the prosecution require to be careful about
the methods used to ensure fairness and admissibility of evidence.
The reporting police officer should ASK the driver if there is any
reason that he/she cannot provide a sample of blood for analysis.
Sometimes this whole process is just handed over to the police casualty
surgeon or to a Doctor who is in attendance for another treatment
reason. One has to consider if proper legal cautions have been provided
and if all proper procedure followed.There is often room for error in
the procedure and this area therefore requires careful consideration of
a specialist road traffic lawyer.
The Intoximeter EC/IR, the Camic Datamaster or the Lion Intoxylizer
are used throughout the Uk we understand from experience that the
Intoximeter EC/IR is now the most widely used piece of equipment for
breath testing in Scotland.
They are all type approved and as such certain presumptions of
reliability follow. If the defence wish to challenge the reliability iof
such a device they really require to do so long before the trial!
They will require to have checked the instrument, the service log,the
calibration process, the details of use on day and any other aspects of
use. However they may find that the Crown are reluctant to cooperate
with the defence on the basis that the whole issue of challenge is
merely a "fishing expedition" for the defence.
Therefore when instructing your lawyer on this issue you must bring
up the issue of device reliability if you consider it important eg If
the reading seems way to high then you should explain to your lawyer
what alcohol if any was consumed and why the machine must be at fault.
You may require to obtain a forensic toxicologists report to validate
your claim BEFORE the Crown will even allow your solicitor to obtain any
details regarding the intoximeter device. If the Crown persist in their
refusal to provide disclosure on this issue then other areas are open to
the defence in an attempt to secure the access to documents that is
required for the proper presentation of your defence. You will require
an experienced defence lawyer to pursue these issues with the required
vigour for success.
In Scotland a Lord Advocate's directive ensures that persons with a
reading of 40ug or less will not be prosecuted and in England a driver
will not be prosecuted under section 5 with a breath alcohol level of
less than 40 ugs. In accordance with the guidelines contained in
. Drink Driving In Scotland raises a lot
of questions please do not hesitate to call or e mail for advice.