POST-INCIDENT DRINKING OR THE “HIP FLASK”
Drink Driving Scotland- The Hip Flask Defence
The Road Traffic Act 1988 contains a
number of offences connected with drink or drugs, including the offence of
driving or being in charge of a vehicle whilst being above the legal limit for
A specimen of breath, blood or urine from
a driver suspected of any of these offences will normally be taken by the police
for use in the case against him.
The effect of section 15 of the Road
Traffic Offenders Act 1988 (the RTOA) is that it will be presumed that the level
of alcohol in the specimen was at least the same as the level of alcohol
in the suspected driver’s breath, blood or urine at the time of the alleged
offence. i.e Whatever your reading then the court reckon that this was the
reading when you were driving or in charge of the vehicle.
However if a driver drank after the
alleged offence, then the level of alcohol in the specimen will obviously be
higher than the level of alcohol at the time of the alleged offence. This
is often referred to as the "Hip Flask Defence". It comes from the reference of
an accused to taking a drink from his hip flask to steady his nerves after a
road accident. Nowadays Sheriffs are suspect of this defence and it will take a
great deal to persuade one that you were so shocked by an accident that you had
to have a drink to calm yourself down. The social climate has changed since the
hip flask defence first made its way into the courts of Scotland and most
Sheriffs would want to hear a VERY GOOD reason for you taking the decision to
drink especially where you would know or reasonably expect the police to become
involved in the investigation of an road
In cases where the suspected driver drank
alcohol after he stopped driving or being in charge of the vehicle but
before the specimen was taken, section 15 of the RTOA provides that it
is a defence to show that the post-incident drinking caused the specimen to have
a reading which was above the legal limit.
What the defence need to
Usually the crown have to prove your
guilt but here we have the situation where we, the defence have to establish
your innocence! OK, we do not need to prove it "Beyond a reasonable doubt" but
the standard that we require to meet is still a high one.
The defence must show that the
post-incident drinking caused the specimen reading to be over the legal limit on
a balance of probabilities – that is, a greater than 50% likelihood.
The defence case has to be particularly
strong to overcome the presumption in section 15 of the RTOA. The driver’s
evidence of what he drank must be verified by commissioning a toxicology
report from a qualified expert.
would normally call upon the services of a respected and experienced forensic
toxicologist to compile a report based on the facts in your case.
This report will show what the effect of
the post-incident drinking had on the specimen reading. The expert will
calculate the rate at which the your body processed the alcohol that was
consumed. The expert must be provided with accurate information on the
following, if a worthwhile report is to be compiled.
· How much you drank after the
· The alcohol content of what you had to
· The time of the post-incident drinking,
and the period over which you drank
· Height, weight, age and sex of
If a driver had nothing to drink
before the incident (that is, he only drank afterwards), the defence would have
to lead evidence of this fact. If a driver drank before the incident and
had a post-incident drink, the defence would have to lead evidence that any
pre-incident drinking did not put him over the legal limit. The defence should
ask the toxicologist to calculate what the specimen reading would have been on
the basis of the driver’s pre-incident drink.
The prosecution may
use an expert toxicology report to show that, even if the post-incident drinking
is discounted, the driver would still have been over the limit when he was
driving or in charge of the vehicle. Remember, section 15 of the RTOA contains a
presumption that the level of alcohol in the specimen was at least the same
as the level of alcohol in the driver’s breath, blood or urine when he was
driving or in charge of the vehicle. It therefore allows for the possibility
that the level could have been higher than the level in the
This is a
difficult defence to establish and it requires expertise not just from the
toxicologist but from the solicitor conducting the case. A great deal of case
law exists in this area and it is a legal minefield for the uninitiated and even
for many experienced solicitors.