Blood Specimens

We will assess your case to see if any of the following general defences apply.

Private land

If the vehicle is on a private road or car park you will have a defence as the law requires the vehicle is in a public place for the offence to be committed. Some car parks have restrictions for example patrons only or there may be private land signage or the road may be used too infrequently by the public for example remote council owned tracks or cul-de-sacs. In one case decided by the Courts, a university campus was held to be private land when used outside of normal hours. 

Hip flask defence

If alcohol is consumed after driving the vehicle we can calculate what your blood alcohol level would have been without the post driving alcohol. You will have a defence if the calculations show your level is below the prescribed limit. The prosecution may offer no evidence with a favourable scientists report.

Duress of circumstances

Where the driver fears life or serious harm to themselves or someone else this is a defence which may avoid disqualification and a criminal record. In other cases of emergency this may amount to special reasons to avoid a ban (see special reasons).

Evidence of driving

Being found inside the vehicle or near the vehicle may amount to evidence of drunk in charge (which usually carries 10 points) but not drink driving. Sometimes the only evidence of driving will be verbal exchanges with the police which may not be used as evidence against you if you have not been cautioned. Even with admissions in interview at the police station we can apply to the court to exclude this evidence and argue there is no case to answer where the police fail to explain your right to speak to a solicitor by phone when a face to face has been declined.

Amount of alcohol consumed

We can argue the blood analysis is unreliable if insufficient alcohol was consumed to exceed the prescribed limit. A scientific calculation is carried out to confirm if you would have been below the prescribed limit with the amount of alcohol consumed. If the report is favourable the burden of proof is reversed so that the police are required to show the analysis has been carried out correctly. The police may have difficulty providing further evidence to support this or the defence expert may identify issues with the testing process.

If these legal defences do not apply or are not successful we can still attempt to avoid a ban by challenging police station procedure.

We can view the video footage from the arrest, booking in and specimen procedure to assess whether there are serious and substantial mistakes in police procedure.

In this situation the court has the power to exclude the crown's case, resulting in dismissal of the charges.

These are just a few examples, many of which have been used successfully to avoid bans for clients of this firm:

• Where the officer fails to complete the blood specimen booklets MG DD/B at the police station or MG DD/C at the hospital this may invalidate the whole process.
• If you are not medically fit to consent at the hospital the police may not test the sample without first requesting permission following your discharge from hospital.
• If the officer fails to state the reasons for not taking a breath sample then the prosecution must fail.
• The police must demonstrate they can account for the whereabouts of the blood sample at every stage of the testing process and that the sample not been tampered with. This is called ‘continuity'. Charges have been dismissed where the packaging is damaged when received by the laboratory, labels have been wrongly completed, serial numbers do not match or the officer has not completed the blood specimen booklet properly.
• The blood sample may have been taken unlawfully if the officer wrongly believing the breath test machine was unreliable.
• The charges may be dismissed if the police fail to enquire about medical problems preventing you from providing blood, or fail to refer any medical reasons to a doctor before deciding whether to continue with the blood specimen procedure.
• Refusing to allow a urine sample where you have a needle phobia.
• The doctor fails to shake the container for 30 seconds after taking the sample as required by guidance.
• If you are not provided with your own blood sample, or not told how to store the sample, or you are discouraged from taking your blood sample away with you or having it tested, this may result in a defence to the charges.
• If you have been given a blood sample we can have this tested using one of our approved independent labs. Cases have been dismissed because the blood alcohol level was below the legal limit.
• The courts have ruled if you are not told you will be prosecuted for failing to comply with the blood specimen procedure the police must not continue with the case against you. This is called the ‘statutory warning'.
• The police must arrange an assessment by a police doctor where you have sustained injuries to determine your fitness for interview.
• The police must take a blood or urine sample at the hospital if you are not medically fit to be detained after sustaining injuries.
• You must be medically and mentally fit for the blood specimen procedure. If you are in shock or in pain and this prevents you from understanding your legal rights we may apply for dismissal of the charges with a favourable medical report.
• The courts have ruled the police must arrange a translator where the suspect has limited English for example difficulty with long or technical words.

Here are some example cases dealt with by the firm with the above issues.

R v SP – Basingstoke MC 

The client was charged with driving with excess alcohol in blood. Fitness to consent and failure by the to provide to provide an independent sample were in dispute. After receiving a comprehensive report from the defence expert and following written representations to the prosecution the charges were discontinued before trial.

R v W – Romford Magistrates Court

The prosecution were required to prove that the client's evidential blood sample had been properly labelled, stored at the right temperature, safely transported to the Laboratory in time, and then accurately tested by the Prosecution's scientist. The Prosecution were unable to prove these procedures had been satisfactorily followed and discontinued the case.

The court has the power to exclude the crown's case as a result of unlawful arrest or from the conduct of the arresting officers. Here are some examples:

• Excessive force or intimidation. A number of clients have had charges dismissed due to intimidation, disproportionate force and the inappropriate use of strip searches and taser guns.
• Using handcuffs without justification is by definition an assault under ACPO guidelines
• The police officers may make false claims as to the reason for stopping your vehicle. This may amount to bad faith resulting in discontinuance of the charges as the credibililty of police witnesses must be taken into account by the CPS under the code for prosecutions.
• False claims by the police officers that they had your permission to enter your property which is proven not to be the case by body cam footage may result in discontinuance due to bad faith.
• Insulting or inappropriate behaviour can result in the case being dismissed. A case against one of our clients was dropped due to inapproptiate and unwanted attention by an officer.
• The police are required by force policy to arrange hospital assessment where your airbags deploy after a collision.

A high proportion of successful cases are achieved where it is not possible to have a fair trial because the police fail to provide the SFR/2 (streamlined forensic report) or video footage or documentation to comply with their disclosure duties.

The courts have ruled the crown's case may be excluded in its entirety in this situation. 

If we are unable to prepare your case due to the prosecution failing to supply evidence you are entitled to an acquittal.

Here are some examples

R v LW – Barkingside MC.

The client was charged with driving with excess alcohol. Richard Berman (Gold panel lawyer) instructed by Laura Heywood (reviewing lawyer) persuaded the prosecution to discontinue the case after failing to serve an SFR/2 (streamlined forensic report) to prove the blood sample. Costs were awarded.

R v RJ – North Tyneside MC.

There was no interpreter at the police station. Case dropped before trial due to the prosecution failing to comply with the duty to serve unused material.

R v MA – Camberwell Green MC.

Client had not consumed sufficient alcohol to exceed prescribed limit. Case dropped before trial after the prosecution failed to serve the CCTV from the breath test room.

In some cases we can persuade the CPS to drop charges before the case proceeds to court. This saves you the expense and worry of having to attend Court. Here are some examples of cases dealt with by the firm

R v ZA – Hendon MC.

The matter was discontinued in advance of a disclosure hearing. The Defendant didn't need to attend for her trial.

R v AK – Luton MC. 

Notice of discontinuance served. Issue of whether the police followed the correct procedure

R V HS – Banbury MC. 

Client was alone in her vehicle at a car park after consuming alcohol. She called the police with no other no means to get home after trying to contact her husband for a lift. The case was dropped after we persuaded the CPS the client had no intention to drive home.

This can be a quick way of resolving the case at the first hearing without the need for a trial.

You have the option of offering a guilty plea to a less serious offence namely drunk in charge where the prosecution agree to drop the drink driving offence. This may result in 10 penalty points instead of an automatic driving ban.

Here are some examples.

R v LG – Derby MC. 

The client admitted to driving after an accident but was not given her rights to access a solicitor by phone before the interview. The prosecutor agreed to accept drink in charge which meant 10 points instead of a lengthy driving ban.

R v LM – Swansea MC

Client not told about right to solicitor by phone before interview after declining a face to face. 10 points imposed instead of mandatory 12 month ban after prosecution accepted guilty plea to drunk in charge.

Special reasons may avoid a driving ban where no legal defence is available. In some cases even a criminal record may be avoided and your legal fees reimbursed where the court agrees to an absolute discharge.

Here are some examples

Emergencies

You may have believed at the time of driving you had no choice but to drive despite having consumed alcohol. Where this happens you may be able to argue “special reasons” as a way of avoiding a driving ban. The typical cases involve some kind of emergency. Cases have been upheld for medical reasons e.g. getting someone urgent medical treatment, to avoid threat of personal safety or that of others, and where clients have driven due to concern for missing children.

Short distance driven

The Courts can find special reasons to avoid a driving ban where you have driven a short distance so that there was no significant risk to other road users. 

Spiked/ laced drinks

If you drank more alcohol than what you thought you were drinking, or the drink was a different type of alcohol to what you thought, or someone added alcoholic beverage to your glass without your knowledge, we can obtain a report from our scientists to calculate if the additional alcohol took you over the legal limit. Where this is confirmed we may argue special reasons against a ban on your behalf.

Medication/ medical conditions and interfering substances

Medical conditions and medications may influence the rate by which alcohol is eliminated by the body. This can mean that your alcohol reading at the police station is not an accurate reflection of the amount of alcohol consumed.

Medical conditions may amount to special reasons if the prosecution accept a guilty plea to driving under the influence (section 4 drink driving offence).

Likewise inhaling fumes or coming into contact with certain substances such as liquids, sprays or inhalers can result in an unreliable blood analysis.