The Defence Brief

  Drink driving law is more complex than many appreciate One thing I have found since specialising in motoring law is that it is an area that is poorly understood by many people, criminal lawyers and judges included. I have heard comments from fellow solicitors that include, “I don’t need any papers to advise him about his case, it’s only drink driving.” And, “there are no defences to drink driving.” Most worryingly I’ve heard more than one court legal adviser tell their magistrates that “it is impossible to avoid a driving ban following a drink driving conviction.” None of these things are true and I hope, through a series of blog posts, to give a brief glimpse into the law of motor vehicles and alcohol. In this first post I think it’s worth spelling out exactly what drink driving is and what needs to be proven to secure a conviction. The first thing to know is that there are two different types of drink driving and they require the prosecution to pro...

As police investigate forensic experts it is ever more important to challenge scientific evidence   You may, or may not, know that I specialise in motoring law and that my practice has a particular emphasis on drink driving, drug driving and the associated offences . Because these offences usually require some scientific enquiry to be conducted to prove guilt, they frequently include forensic evidence and today I want to look at how courts deal with forensic evidence and challenges to it. Let’s assume that somebody has been arrested for drink driving and, for whatever reason, the police have taken blood to assess how much alcohol is in his body. The prosecution will usually provide a document called an SFR1, which is a summary of the scientific examiner’s findings. It is not a document that is admissible itself, although it can be admitted if all parties agree. If a party does not agree to the summary being admitted then the prosecution ask the expert to produce an SFR2...

Ant McPartlin I haven’t blogged about drink driving for a while, which is a bit of a shame for me since drink driving cases form the bulk of my case load. So, with the conviction and sentencing of Ant McPartlin, of Ant and Dec fame, this seems like a great time to talk about how sentencing works in drink driving cases using this case as an example. Mr McPartlin entered a guilty plea when he appeared in court, which negates the need for a trial because he admits that he committed the offence. The maximum sentence is six-months imprisonment, an unlimited fine and a driving disqualification. The minimum driving ban is 12 months but there is no cap on what the magistrates can impose, although I have yet to personally witness anybody receive a ban longer than five years and first-time offenders will rarely get such a lengthy ban. It should be noted that although the ban may end after a year or two, the conviction remains recorded on your driving record for 11 years. Once the defe...

Courts have wide powers in dealing with people convicted of drink driving Most people realise that once they are convicted of drink driving the court will take away their driving licence for at least 12 months, but most people aren’t too sure whether the court can also take away their car, it’s probably right to say that most people never think about it at all. The answer is, yes, a court can take your car from you if you are convicted of drink driving. Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 grants criminal courts the power to deprive a convicted defendant of any rights in property they to the property that was used to commit or facilitate a criminal offence or any property that the defendant intended to use to commit a crime, this specifically includes motor vehicles. It is called a Deprivation Order and means that a court can lawfully deprive you of your car not only if you are convicted of driving with excess alcohol but also if you a...

Mitigation can significantly reduce a drink driving sentence There is a, very minor, story in today’s Daily Mail about a businessman sentenced for drink driving that has led to quite a few people asking why he received a fine of £488 (actually, he was fined £367 but the Mail got that bit wrong) and a 14-month driving ban while Chris Tarrant was fined £6,000 and handed a 12-month ban for the same offence , even though Mr Tarrant had a much lower alcohol level.  As I acted for the businessman, I’m tempted to say that the difference must reflect the fact that one had a specialist drink driving solicitor while the other was represented by a corporate crime expert, although I’m sure that the truth is that the law on sentencing came into play. So, since people are speculating about the differences in sentence I though we might as well take a moment to look at how people are sentenced by criminal courts. We’ll use drink driving as an example, but the principles apply to all c...

Knowing the law is vital to defending yourself in court The statutory warning sounds like something impossibly dull – any maybe it is if you’re not a lawyer – but it is something that is very important in drink driving cases. When the police suspect somebody of drink driving they must take a specimen of breath, blood or urine from them that can be analysed to show whether the person was over or under the drink driving limit at the time they drove. Parliament has laid down strict rules about what must happen prior to the police requiring that a person suspected of drink driving provides a specimen for analysis. Section 7 of the Road Traffic Act 1988 gives the police the power to require a person to provide a specimen and tells us that the person commits an offence if he or she fails or refuses to do without reasonable excuse. However, section 7(7) says that: “A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a f...

"Not the usual suspects" - police are on the lookout for drink drivers of all ages It’s only November but with Christmas less than six-weeks away you can be sure that police forces across the country are well into planning their Christmas 2017 drink driving campaigns. Last year saw thousands of people breath tested and thousands more arrested across the country for drink driving and police forces reporting a shift in the type of people being arrested. People often associate drink driving with young men; however, West Yorkshire Police reported in January 2017 that 40% of people arrested for drink driving were over 35 years old and of those a significant proportion were women. Dorset Police supported those sentiments labelling the majority of drink drivers as, “not your usual suspects”, pointing out that most of those arrested are normally law-abiding people who misjudged how much alcohol they could drink before driving. Drink driving the morning after a night...

How long will a pint stay in your system? Unless you check you do not know I’ve been prompted to write this post following a Periscope broadcast by @SgtTCS about drink driving and the use of home breath test kits. SgtTCS is a serving police sergeant whom I have followed on Twitter for many years. He is extremely dedicated to his work and to promoting road safety. He has used social media to campaign against all sorts of dangers that motorists encounter on the roads. This is his tweet with a link to the Periscope broadcast: Personal breathalysers - #31DaysLive Day 78 suggested by @jred196   https://t.co/ityxGz0cTJ — SgtTCS (@SgtTCS) October 17, 2017 First, I should say that I do not disagree with the points SgtTCS makes but, having spent many years representing drink drivers , I do feel that he, and many other police officers, underestimate the importance of breath test devices in helping people avoid drink driving. The argument from many seems to be th...

Wayne Rooney On the 1 st September 2017, Everton and England international footballer Wayne Rooney was stopped by police as he drove his car through Wilmslow, Cheshire in the early hours of the morning. The police said that there was a light out on the car Mr Rooney was driving so they decided to stop it – presumably on the basis that people who have committed more serious offences often commit minor ones like having a light out on their cars. They found Mr Rooney in the driving seat with a lady in the front passenger seat. The police officers asked him to provide a specimen of breath to establish whether he was fit to drive or not. I haven’t seen a report saying why they did this but as section 6 of the Road Traffic Act 1988 only allows a specimen to be required where a constable reasonably suspects that a person has been driving with alcohol or drugs in their system we can assume that something about Mr Rooney made them suspect he was drunk. Typically, police are on...

Expert legal advice is essential any time you are interviewed by police I met a new client last week. He is accused of drink driving and contacted me after hearing of me through others I've represented . He was arrested at home where the police found him in bed… asleep. He was not the only person in the house and was not the only person with access to the car he was accused of driving. Having considered the evidence, I saw that the police received call from an “unknown informant” saying that somebody was drink driving. No reason for this belief was given nor was there any description of the driver. In short, there was no evidence that the man charged with the offence was the driver. Since the prosecution must prove not only that a person is over the drink driving limit but also that he drove while over the limit, evidence identifying the driver is very important. At the police station, my client was interviewed in the presence of the duty solicitor – or at least ...

Lady and Lord Howard At Wimbledon Magistrates’ Court on the 1 st December 2016, Lord Howard was convicted of failing to identify the driver of a car belonging to him, which was seen speeding. Lord Howard is a Queens Counsel and former leader of the Conservative Party. He served as Home Secretary under John Major and frequently clashed with judges. One decision made by Lord Howard to set a minimum 15-year tariff to the life sentence imposed on the 10-year-old killers of James Bulger was described by a retired senior appeal judge, Lord Donaldson, as “institutionalised vengeance by a politician playing to the gallery”. The former party leader’s car was seen travelling at 37mph on a road with a 30mph speed limit. A section 172 notice was sent to his home, presumably with a notice of intended prosecution, and Lord Howard replied saying he could not recall who was driving. He identified the other person who might have been behind the wheel simply as “my wife”. The law Secti...

Drink driving limits vary not only between countries but also between the various parts of the UK In part 3 of this four-part series comparing the drink driving law in Norway with that here in the UK following the driving conviction of Halfords finance director, Jonny Mason, we turn our attention to the question of the drink driving limit. In other words, how much alcohol can you have in your system and still be allowed to drive? In Part 1 we looked at whether a golf buggy could be a motor vehicle here in the UK and concluded that it could not unless it was modified. In Part 2 we considered whether a person could commit a drink driving offence on a private golf resort and concluded that while it is possible, it seems unlikely that drink driving on this resort (if it were in the UK) would be a crime. Now, we ask whether Mr Mason would have committed a crime if he had driven a car on a road with the amount of alcohol in his system that he had in Norway. Throughou...

Kragero Golf Resort This post is part of a short series of blogs inspired by the conviction of Halfords Finance Director, Jonny Mason, for drink driving in Norway. In the last post , we looked at whether the golf buggy he was driving at the time of his arrest could be a motor vehicle here in the UK. In this post, we’ll consider how our law differs from Norway’s on the place of the offence. Mr Mason was staying in a golf resort. According to the press, he decided to drive a golf buggy from a bar to his holiday apartment. It is said that at no time did he travel beyond 10KPH or 6MPH. In the UK, drink driving is only a crime when committed in a public place or on a road, but the legal definition of a road is much narrower than you might imagine. If you drink drive in a private place or on a road that does not meet the legal definition of a road then you will be not guilty, so it’s important that you (and your solicitor) knows the difference. To decide whether Mr Mason...