Driving under the influence (the section 4 offence) is different from driving with excess alcohol (the section 5 offence) as the police do not need to show you were above the legal limit.
They only need to prove that your driving was impaired by alcohol with evidence that your driving was erratic.
Usually the section 4 offence will be used when the police have seen you driving but you have been unable to provide an evidential sample.
We adopt a methodical six stage process to safeguard your license.
STEP ONE – GENERAL DEFENCES
We will assess your case to see of any of the following general defences apply to your case
Where you drive on a private road or place e.g. car park the offence of drink driving may not have been committed as the vehicle must be driven in 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 drink drive. For example, in one case decided by the Courts, a university campus was held to be private land.
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)
Sometimes the police are unable to prove you were driving. Being seen near to the vehicle may amount to ‘prima facie’ evidence of drunk in charge but not drink driving. Sometimes the only evidence of driving will be a roadside confession by the driver. If the driver has not been given their rights before admitting to being the driver we can stop the police using this evidence and argue there is no case to answer. Even where you have been interviewed at the police station and given a full confession we can prevent the confession being used in Court where you have been denied certain rights e.g. medical treatment or proper access to a solicitor.
Driving not impaired
If you do not accept driving carelessly or you believe that your driving was not impaired by alcohol then you have a full defence. It may be possible to refute the allegation using the police officers statements or from your recollection and that of any witnesses.
If these legal defences do not apply or are not successful we can still attempt to avoid a ban by challenging police station procedure.
STEP TWO – LEGALITY OF ARREST AND POLICE CONDUCT
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.
STEP THREE – NON DISCLOSURE
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.
STEP FOUR – DISCONTINUANCE
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 and called the police due to not being able to drive home having been unable to contact her husband for a lift. The case was dropped after we persuaded the CPS the client had no intention to drive home.
STEP FIVE – PLEA BARGAIN
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 example.
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.
STEP SIX – SPECIAL REASONS
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 would have impaired your driving. Where this is confirmed we may argue special reasons against a ban on your behalf.
Call us now on 0800 044 3730 to find out how we can help you