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Breath Samples

We adopt a methodical seven stage process to safeguard your licence


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

Private land

Where the vehicle has been driven on a private road or place e.g. car park the offence of drink driving may not have been committed as the law requires it must be a public place. Some car parks are open to the public but have limited class of users. In this case you may escape a conviction. For example, in one case decided by the Courts, a university campus was held to be private land. 

Hip flask defence

This is where alcohol is consumed after stopping the vehicle. We can calculate what your reading would have been without the post driving alcohol. You will have a defence if the likely breath alcohol level is less than the legal limit. The prosecution will often offer no evidence if we obtain a scientists report with favourable calculations.

Duress of circumstances

Where the driver fears life or serious harm to oneself or someone else this may amount to a legal defence which may avoid not only a ban but also a conviction and criminal record. In other cases of emergency this may amount to special reasons to avoid a ban (see special reasons).

Evidence of driving

Being sat in 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 a roadside confession. If the driver has not been given a caution we can stop the police using this evidence. Even where you have been interviewed at the police station we can exclude confessions and submit no case to answer where you were not told of your right to speak to a solicitor by phone after declining a face to face.

Amount of alcohol consumed

We can argue the breath level is inaccurate if you did not drink enough to take you over the legal limit. The Supreme Court has ruled that breath test machines are not infallible. A scientific calculation can be used to demonstrate that you should have been under the legal limit with the alcohol consumed. This reverses the burden of proof so that the police are required to show the machine was functioning correctly. The police often have difficulty with this.

Here are some example cases dealt with by the firm

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 CCTV from the breath test room to assess whether there has been a significant  breakdown in police procedure.

In this situation the Court has the power to disallow all prosecution evidence against you, 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 is not competed before the evidential breath test. This means the officer cannot legally be satisfied with the results. 
  • The police officer fails to rule out potential sources 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 too far apart and beyond the acceptable difference which is 15%
  • The officer disregards or overlooks the significance of messages on the display of the breath test device which require the breath test procedure to be abandoned
  • If you are not given a warning before the breath test the prosecution must fail
  • The officer fails to take a blood or urine 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 comply with the manufacturer’s instructions on the handling of the mouthpiece to avoid contamination
  • The officers sometimes fail to rule out the risk of interference from radio transmissions in breach of home office circulars.
  • The officer does not have the training required to operate the machine.
  • The police officer must take a blood sample where your demeanour and amount of alcohol consumed is not consistent with the breath level
  • The police fail to arrange an assessment by a police doctor before an interview where you have sustained injuries.
  • The operator fails to take a blood sample where the breath level at the station is higher than the roadside level.
  • The police fail to arrange a translator where you have limited English for example you have difficulty with technical jargon or procedural terms. 

Here are some example cases dealt with by the firm

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.

We have a panel of experts with in depth knowledge of breath test procedure who produce reports commenting on these issues. 


In some situations the Court has the power to disallow breath specimens as a result of the 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, and the inappropriate use of strip searches and taser guns.
  • Using handcuffs without justification contrary to ACPO guidelines
  • The police mislead you on the reasons for stopping your vehicle. This may amount bad faith or ‘mala fides’ for which the Court has the power to disallow all evidence against you.
  • Misleading statements by the police that there was permission to enter your property
  • Insulting or inappropriate behaviour can result in the case being dismissed. A case against one of our clients was dropped due to unwanted attention.
  • You are not taken to hospital immediately after a road traffic accident or the police delay your treatment to obtain a breath sample
  • The police are required by force policy to arrange hospital assessment where your airbags inflate.


A high proportion of successful cases are where the police fail to comply with their disclosure duties.

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. We offer a guilty plea to a less serious offence usually drunk in charge provided the prosecution agree to drop the drink driving offence. 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. Here are some examples


You may have believed at the time of driving you had no choice but to do so 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 people have driven due to concern for missing children.

Short distance driven

The Courts can waive a driving ban where you have driven a short distance so that no real risk was posed to the public.

Spiked/ laced drinks

If you drank more than what you thought you were drinking, or the drink was a different type to what you thought, or someone added drink to your glass without your knowledge, we can obtain a report from our scientists to work out 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

Some medical conditions and medications 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.

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.

Also 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 your case.

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

Call us now on 0800 044 3730 to find out how we can help you

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