Mistakes In Drink Drive Cases In Scotland
1st Road Traffic Law Specialists Scotland
Drink Driving Job loss, business failure, loss of home, relationship melt down!! Drink driving, drunk in charge, failing to stop.
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Drink Driving ruins lives- We do not condone it and nor do our clients but we do our best for those who come to us for help. We frequently deal with drink related cases and delicate situations. You may rest assured that we are committed to communicating with you regularly and having a dynamic impact on your case. Myself and my team of lawyers have more than 30 years court experience between us. Both of my assistants were former Procurator Fiscals and one of them was even a traffic policeman for the first 1/2 of his career!
We can make our experience count in your case. We did not set up our law practise yesterday, we have been doing this for more than 24 years.
Drink Driving, Dangerous Driving and Speeding cases, often require a lot of technical and scientific information to be obtained analysed and thoroughly considered. In addition to knowledge of the basic laws of procedure and evidence that govern just what evidence can be led before a court, our knowledge experience may be the deciding factors in winning your case.
Common Mistakes In Drink Driving Cases...
Mistake 1- Assuming You Cannot Win
When that intoximeter has printed out the reading of more than 35ug your heart sinks as you realise the consequences of the result. It is at this stage that some people just throw in the towel. The police officer may have explained that the roadside test wasn't reliable but nobody is suggesting that THIS machine has got it wrong. You may be left in a cell for the next few hours then handed a slip of paper and told to be in court or face arrest. However the breath test, the alcohol blood level test, the alcohol urine test and the roadside tests all have potential pitfalls. It may be in the method of use, the procedures not being followed as they should be or it may be simple operator error. Whatever the problem a good defence team needs to find it and exploit it to win the case. Winning or losing a road traffic case comes down to the lawyers determination to investigate every angle and fight every legal argument. Did you know that the results of a breath test can be challenged. The Log Book detailing all tests that day and the service log for that year can be examined by the defence to check for signs of faults or evidence of tampering. The service record for months before and after the test can be examined. Experts can be instructed to check the analysis machine itself and checks can be made reading and assesing the police procedures at time of testing.
We have even had experience of an entry that had been "tippexed" when changed.
We are not advocating a "Fishing expedition" but when our clients challenge the accuracy of a reading then they can expect that no stone will be left unturned. The cost of defending such a case can be considerable and we can tell you that it will undoubtedly run into thousands of pounds however with so much at stake it can be worth investing that money in your defence. Think how much could be saved over the term of any ban. Of course it is more costly to defend a case than to plead guilty at the outset but this is because of all the extra work and court time that will be involved. We are often asked if pleading not guilty will attract a higher sentence if convicted and the answer is no. You are entitled to defend your case but what you must be aware of is that the court will not punish you for taking a case to trial but they will reward you for tendering an early plea. That reward does not mean that they will reduce a mandatory minimum period of ban but may mean that the fine imposed is less than it would have been.
Mistake 2- Assuming The Procedures Were Followed Correctly
The correct sample procedure was not followed. the results indicate that the device was not properly calibrated
* your breath sample was interrupted e.g. sickness
* you had something in your mouth, such as chewing gum, etc.
* you were on a special diet.
* you have diabetes, asthma, other relevant medical condition.
* you have ill fitting dentures.
* you had close contact in a confined space with paint or solvents.
* you have to take medicine on a regular basis.
* an alcohol antiseptic was used when blood was drawn.
* an alcohol antiseptic was used by you when washing
By not challenging the Crown case you don’t get to question the arresting officers. You will not be entitled to say that you accept that the results are partially correct but that they do not accurately reflect what you had to drink. You would require, therefore accept whatever the reading was and accept that all procedures were followed properly. Plead not guilty and a trial is set where the defence will get the chance to interview the police officers and examine the physical productions ALL before you attend court. You will then have the opportunity to attack the results on the grounds that the technical rules weren’t followed. If your lawyer considers that all procedures were followed and that there is no technical defence then the lawyer can have the case brought forward to tender a guilty plea and secure any sentence reduction for an early plea.
Mistake 3-Assuming The Breath Analysis Machine Device Is Never Wrong
Even the Space Shuttle has failed in the past. I can't think of a machine that hasn't broken down at sometime! All the defence require to do is show the Sheriff that there is room for a "reasonable doubt" regarding the reliability of the machine and your licence is saved. Laymen and even lawyers are sometimes guilty of failing to read the piece of legislation that the case relates too. The law in relation to drink driving cases, of course requires to be fully understood however all the statutes and the regulations governing the use of technical equipment requires to be read and understood. The lawyer needs to know what is and what is not admissible evidence-This is not always easy and again experience tends to be our key to success. Those that don’t know the laws and regulations don’t realise that violations of the rules introduce into evidence matters that can be kept out of the trial on the grounds of unfairness to the accused.The intoximeter devices are "type approved" there is a presumption that they are reliable and that they work properly. Therefore to defend such a case you need to get copies of the various logs, maintenance records, printout of sample taken etc. This is not easy as the Crown will refuse to provide these documents if they consider that this is a "Fishing expedition" where the defence are just looking for some kind of get out! My own view is that we should be entitled to obtain all such documents, even if it were a so called "fishing expedition" since this is how we the public have any chance of establishing that the correct procedures and proper working equipment has been used.
Mistake 4- Not Knowing When To Object To Evidence
If you do not know the law in relation to what and how evidence is should be led, how can you possibly tender a proper and timeous objection? If you don't get this right you can easily be convicted before you realise the error of your ways.
Mistake 5- Not Going To The Arrest Location
Lawyers call this a locus attendance. Many people don’t visit the locus. This can be crucial. In road traffic offences we often go to the scene with our clients to take relevant photographs, and video and to draft diagrams. With the advent of Google Maps we now find that printing off some satellite photographs can also assist the case preparation. Police officers are often trained to refer to the "off side" or the "nearside" when describing the vehicle and position in relation to the offence, the accused might say left or right and another witness might say East and West. Thats why we always have Maps, Photographs and diagrams. It makes sense of all the left, right, nearside, offside, middle and don't knows that we will have to deal with at the trial. Drunk in charge cases can sometimes involve a piece of land where the public do not have any right of access but this might only become plain once the area is visited. We tend to video the location for most cases. We had one case where our client was found intoxicated in his vehicle in a private field. The Crown allegation was that our client must have been drunk in charge of his vehicle to get into the field in the first place! What they didn't know was that he had driven his friends to meet a helicopter in this field and when the helicopter returned later that evening (Much the worse for wear) he didn't feel inclined to walk home so he slept in his car, dropped off in the field by a helicopter. Roadside Tests involving walking a straight line and the like are becoming increasingly used in Scotland. Seeing and knowing the locus allows you to bring better cross examination to court as you can test witnesses on true conditions that existed. e.g. sloping, ill lit roadside that is very busy with traffic.....it may be reasonable not to be walking on the kerb? These things makes it much easier for your lawyer to understand and more importantly the Sheriff to understand your concerns about any roadside test, and, in some cases, point out a physical impossibility to the Sheriff. We had one case where the police officer admitted that he requested our client to walk a straight line inches away from a dual carriageway. Needless to say the Sheriff wasn't too impressed by this and threw the case out.
Mistake 6- Not Explaining The Du Plooy Discount
Your lawyer should advise you about the sanctions resulting from a conviction as opposed to an early guilty plea. (The Du Plooy case) Why are these important? If you have previously been convicted for drink driving in the past ten years and you choose to go to trial with a very high reading and no real defence then expect incur the wrath of the Sheriff. A good experienced solicitor will always know when it would be appropriate to tender a plea, particularly if you are a border line jail case. It might just mean the difference between your liberty and several months in jail. And this mistake can happen all to often if your lawyer is rushed or is a duty solicitor with very little time for each client. We have acted as Duty solicitor and we know how tough it is to get through maybe 30 to 40 cases in an afternoon. Recently Duty Solicitors in Glasgow have been dealing with even more than this number meaning that on average each client is likely to have approximately 2-3 minutes with the duty solicitor to prepare a plea in mitigation that could mean the difference between jail or freedom.
Mistake 7- The BIGGEST Mistake is Not Going To A Road Traffic Law Expert Lawyer! (I would say that wouldn't I)
Defence lawyers who are experts in Road Traffic Law say that someone who isn’t a specialist should consult one. We have been consulted and have acted for fellow lawyers, police officers, relatives of judges and forensic scientists. Although these people have an intimate knowledge of our judicial system and criminal law in particular they still wanted a specialist. Gone are the days when people had "a lawyer" someone who dealt with everything from their will to their conveyancing to setting up their business.
When I started out in law I specialised in Criminal Law. I was told by colleagues that there wouldn't be enough work to keep me fed and watered but I stuck with it and nowadays Criminal Law Specialists are all over Scotland. In 2001 when I set up the first road traffic law website those same people told me road traffic law was too small an area of practise to specialise in. I have found the opposite to be true. It is an area that is constantly evolving and requires a more intimate knowledge of law, evidence and procedure than any other area I have been involved in. The challenges are constant, varied and incredibly interesting. The benefits to me as a lawyer are that this area of law is well valued by the public and I find that I have seldom received any negative feedback regarding the value for money that we offer. Quite the opposite is true as you can see from our comments page.
Inspired by Barry Sharoff
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