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  • Win your drink driving trial

    Beating the prosecution case

    There are two ways of winning a drink driving trial: disprove part of the prosecution case or raise a defence. In this section we’ll look at how you can win by knocking out one of the elements of the prosecution’s case. Strictly speaking these are not defences but they have the same result of getting you acquitted so you can think of everything in this section as a defence if you like.

    The prosecution must prove that every word of the allegation they bring against you is true, this means that if you can disprove any part of the allegation you will win your drink driving case.

    Because you can win your case by disproving any part of the drink driving definitions we’ll work our way through each element of the definitions and discuss defences that arise.

    Driving or attempting to drive

    The first thing to consider is can the police prove that you were driving the vehicle or attempting to drive it? Notice, the question is not “were you driving” but can the police prove it, this is because it is up to the prosecution to prove what they say you did, not for you to prove that you did not do it.

    Obviously, if you weren’t driving you need to tell that to the police as early as possible to avoid being charged. It does happen that a person is mistakenly identified as the driver and, if that has happened you will have a strong defence to any allegation of drink driving.

    It may also be possible to persuade the court to exclude evidence of your driving at trial – this typically happens when the prosecution intend to rely upon your own admission to driving and the police have not properly cautioned you and told you that you do not need to answer their questions.

    Road or other public place

    There are a surprising number of places where you’ll find cars and other motor vehicles but which do not count as roads for the purposes of the Road Traffic Act 1988. This means that you cannot be guilty of drink driving if you were in one of these places when the police stopped you.

    In one case, Nick Diable was able to convince a court that a defendant was not guilty of drink driving because the offence took place on a campsite where only members of the campsite had access. Nick argued that these people were a select class of people and thus not members of the general public.

    In another case a causeway linking an island to the mainland was held not to be a road. Although the residents of the island used the causeway there was no evidence from the prosecution that members of the public, other than the residents, used the causeway.

    Intoximeter faults

    In some cases, it is possible that the intoximeter at the police station has produced an erroneous reading. You will have provided two specimens, if they are significantly different you will have a defence. You will also know that the intoximeter is not working correctly if you have simply not consumed enough alcohol to produce the reading from the machine – for example, if you have had one pint of beer in the 24-hours before being tested and you blew 84, you might suspect that the machine was faulty.

    If you used particular products shortly before providing a specimen, such as mouthwash, mouth spray, medication or if you have eaten or inhaled anything that may interfere with the intoximeter’s functioning and render it unreliable.

    Defences to drink driving

    There are very few defence to drink driving. In some, very rare, circumstances you will be able to claim that you drove under duress or through necessity but that will be a very difficult defence to prove.

    Hip flask defence

    The hip flask defence (aka post-driving consumption) relies on you proving two things. First, that after you stopped driving or attempting to drive you had an alcoholic drink; and secondly, that if you had not had that drink you would have been under the drink driving limit.

    This typically arises in situations where the police suspect you of drink driving, perhaps because somebody has reported you, but do not find you for some time after the report by which time you have consumed more alcohol.

    Calling witnesses who can say they were with you before you drove and you weren’t drinking (or you didn’t drink much) and a witness who can say what happened when you got home will increase your chances of success.

    You will also need a medical expert who can carry out a back calculation to ascertain what your alcohol level would have been but for the post driving drink.

    If you have been accused of drink driving call Nick now on

    01869 866 490 or visit our contact page now.