Breath Samples

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. 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 breath 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 breath test device is unreliable if insufficient alcohol was consumed to exceed the prescribed limit. The courts have ruled that breath test machines are not infallible. 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 machine was functioning correctly. The police may have difficulty providing further evidence to support this or the defence expert may identify machine fault.

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

R v OA – Stratford MC 

The Defendant was charged with driving with excess alcohol. The client had driven away from a nightclub in fear for his safety. The firm persuaded the prosecution to offer no evidence at trial after they had agreed a statement supporting the client's version of events. 

R v LH – Barnsley MC

The client was charged with driving with excess alcohol. The hip flask defence was raised (post driving alcohol consumption). After representations the case was discontinued before trial.

R v DK – Carlisle MC

The prosecution agreed to discontinue the drink driving charge with a plea bargain to drunk in charge. There was no video evidence supporting a continuous line of sight when the officers claim to have seen the client driving. The client received 10 penalty points Instead of an automatic driving ban. 

R v AP – Stratford MC

The client was charged with driving with excess alcohol The defence called an expert in evidential breath test instruments (EBTI) who gave evidence that the EBTI was unreliable due to a long purge anomaly. After hearing evidence from both defence experts with no rebuttal from any prosecution experts the Court dismissed the charge.

R v OO – Warwick Crown Court 

The client was charged with driving with excess alcohol. A report had been obtained from the defence expert on the functioning of the evidential breath test device. There were ‘short fuel cell response times' which raised concerns about the reliability of the machine. The prosecution decided not to proceed with the case on appeal.

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:

• The 19 page breath test booklet MG DD/A is not completed during the evidential breath test. 
• The police officer fails to rule out the risk of contamination by asking questions about medication, breath spray, mouthwash or anything inhaled in the 20 minutes before the police station breath test procedure
• The two breath samples taken are outside the permitted 15% range.
• The officer overlooks error messages on the breath test device which require the officer to move to blood or urine.
• The courts have ruled if you are not told you will be prosecuted for failing to comply with the breath test the police must not continue with the case against you. This is called the ‘statutory warning'.
• The officer must take a blood or urine sample where the breath test device is unreliable.
• Where an officer expresses doubts about the machine for good reason they must take an alternative sample.
• The operator must take the mouthpiece out of the sealed wrapper and place this on the breathing tube in your presence to avoid contamination.
• The officer must switch off police radios to comply with home office requirements and avoid interference from radio transmissions.
• The officer may not have the necessary training and authorisation to operate the machine.
• The courts have ruled a blood or urine  sample must be taken where your demeanour and alcohol consumed is incompatible with the breath alcohol level.
• 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 breath test. 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 operator must take a blood or urine sample where the breath level at the station is higher than the roadside level. This raises questions about the accuracy of the breath test device because over time your breath level should be reducing not increasing.
• 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 XL – Carlisle MC

The client was charged with driving with excess alcohol. The issue in the case was whether a translator should have been provided. The case was discontinued before trial after a skeleton argument was served on the prosecution. 

R v AK – Medway MC 

The client was charged for driving with excess alcohol. The breath test procedure had to be repeated but the officer forgot to repeat the statutory warning which is a legal requirement. The firm successfully defended the case at trial after presenting legal argument. The case was dismissed with costs awarded to the client.

R v RP – Slough MC

The issue was radio interference. The officer at the trial accepted that the radio equipment was not tuned off. The Magistrates were persuaded that this was a breach of home office guidance and were not satisfied that radio interference had been ruled out. Case dismissed.

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 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 RJ – North Tyneside MC.

Client did not have an 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 example 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 can 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

Acid reflux resulting in regurgitated mouth alcohol can affect breath test machines by artificially inflating the breath level. We can obtain a scientist report to confirm if this applies in which case there may be special reasons to avoid a driving ban if the breath alcohol level would have been below the prescibed limit without mouth alcohol. 

Other 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 reading on the breath test device.