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Motor vehicles: drink and drugs

November 4, 2020 by in category Drink Driving, Drug Driving, News with 0 and 0
motor vehicles drink and drug driving

The law related to drink driving offences and driving whilst impaired through alcohol or drugs is considered by many practitioners to be possibly one of the most complex and intricate areas of criminal law. Many say that drink driving “loopholes” are a phenomenon that were far more successful prior to the introduction of the Criminal Procedure Rules 2005/384.

These days, defence issues must be outlined so as to ensure there can be no cry of “ambush” and threats of wasted costs pursuant to “Chorley Justices

Many of the most common defences in drink and drug related prosecutions are arguably easily identified and equally capable of being defeated providing that lawyers for both parties know their subject. Most issues are contained within the body of the legislation and the rafts of case law on this area.

Overview of Topic


Section 5 of the Road Traffic Act 1988 provides as follows: “(1). If a person — (a) drives or attempts to drive a motor vehicle on a road or other public place, or (b) is in charge of a motor vehicle on a road or public place, after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he was guilty of an offence.


Driving or attempting to drive whilst exceeding the prescribed limit pursuant to s.5.1(a) is, by far, the most commonly prosecuted of all drink related offences and is considered in detail below. However, if the police are in any doubt as to whether or not an offender drove or attempted to do so, then the lesser offence of Drunk in Charge pursuant to s.5.1(b) would be preferred.


Drunk In Charge: The offence of being Drunk in Charge carries with it the possibility of a statutory defence, if the Defendant can prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit. The issues were fully considered in the case of DPP v Janman [2004] EWHC 101 (Admin); [2004] R.T.R. 31. Interestingly, this case threw up a further issue relating to those supervising a learner driver and their capacity to be drunk whilst in charge of the vehicle:
“A drunken supervisor of a learner driver may be held to be “in charge” of the motor and in Sheldon v Jones (1969) 113 SJ page 942, the prosecution sought to argue that it was impossible for a supervisor to establish that there was no likelihood of his driving since at any moment he might have to take over the driving. The justices found as a fact that there was no such likelihood, and the Divisional Court, although stating that they themselves might have come to a different conclusion, felt unable to disturb the justices’ finding to that effect. It is, however, submitted that a supervisor will usually have a difficult task in proving that there was no likelihood of his driving. It is submitted that momentarily taking over control of the steering or of the engine may well amount to “driving” as one of the main duties of a supervisor of an learner driver is to take control of the car in an emergency.”


Failing To Provide A Specimen: The offence of failing to provide a specimen pursuant to s.7(6) Road Traffic Act 1988 involves no requirement for the Crown to prove an offender was over the limit for this prosecution to succeed. There merely needs to be a failure to provide a specimen without reasonable excuse. Of course, it is never as straightforward as this. In “fail to provide” cases, the experienced Defence lawyer will examine, whether or not any aspect of the requirement to provide the specimen was flawed. Was there any reasonable excuse? Many wrongly assume that the excuse can only involve a medical excuse which is not the case. Was there a flat refusal to provide or did the Defendant attempt to provide a specimen and if there was an attempt, was there a problem with the breathalyser? An area that is commonly misinterpreted by the police that will most commonly feature in fail to provide defences is the issue of legal advice. Clients are often confused by the seemingly integral basic right to consult with a lawyer being dismissed or ignored by police when dealing with a drink driving investigation. The Police also get this wrong in many cases. To clarify, the Police do not have to delay the drink driving breath test to enable a detainee to speak with their lawyer. However, the police often fail to even attempt contact with a lawyer when requested by the detainee and in some cases, where it can be demonstrated that the provision of a lawyer would not have involved a delay to the procedure and would have made all the difference to the detainee’s decision to comply or refuse to provide a sample, this is likely to be accepted as a valid defence. DPP v Cowper [2009] EWHC 2165


Unlawful Arrest: Much of what happens at the roadside has become largely irrelevant as any question about the lawfulness of the arrest will usually not render the results of the breath alcohol test inadmissible unless there is an element of bad faith on behalf of the police – R. v Fox (Leslie Raymond) [1986] A.C. 281.


Driving Whilst Exceeding The Prescribed Limit: Once at the police station, if a defendant provides the necessary evidential breath test and it is in excess of the prescribed limit, subject to the level of the reading, they will face charge and prosecution through the Magistrates’ Court. A drink driving defence will most likely feature an argument concerning police procedure, the accuracy of the evidential reading and any factual issues such as denial of driving, proof of driving etc


Accuracy: Turning to the accuracy of the breath test, the case of Cracknell v Willis [1988] A.C. 450 is the leading authority on this issue as Justices erred in refusing to admit the defendant’s testimony as to his alcohol consumption and an appeal was allowed. Although this case is from the late 1980’s it has been upheld as good law in many recent drink driving cases and is still the leading authority on the challenge to accuracy of an evidential breath test.


Lord Griffiths interestingly explained his reasoning as follows:

“Suppose that a teetotaller after dining with people of the highest repute, two bishops if you will, forgets to turn on his lights and is stopped by the police. He is asked to take a roadside breath test and indignantly but inadvisedly refuses. He is arrested and taken to the police station. There he thinks better of his refusal. He agrees to supply two specimens of breath and the machine to his astonishment shows very high readings. He asks to be allowed to prove the machine wrong by supplying a blood or urine specimen. The police agree and he gives a blood specimen. An analysis shows no alcohol in the specimen. It is virtually certain that the police would accept the analysis and he would not be prosecuted. But if he were prosecuted it is equally certain that the magistrates would prefer the analysis and he would be acquitted. But now suppose that the police refused his request to supply a blood or urine specimen because the reading on the machine was over 50 microgrammes. Is he to be convicted without the opportunity of calling the two bishops as witnesses to the fact that he had drunk nothing that evening and inviting the magistrates to draw the inference that the machine must have been unreliable. If he can invite the magistrates to draw such an inference from the word of the analyst, why should he not invite them to draw the inference from the word of the bishops.”


The defence established in this case is clearly dependant on the magistrates accepting the accuracy of the defendant’s account of alcohol consumption and it would seem, corroboration of that account is a crucial element to the defence. That said, I am not sure that “Rent-a-bishop” is a company likely to succeed as Magistrates tend to be rather cynical about this line of defence, often choosing to prefer the evidence from the breath test printout to the defendant’s evidence of recollected alcohol consumption on the day in question. The defendant’s credibility will be in issue when presenting such a defence and possibly even more so with the introduction of impending legislative changes.


Demeanour: A further line of defence can be argued when the demeanour of the defendant and the alcohol reading they produce simply do not add up. Specifically, when a defendant’s reading is at a high level and yet they display no signs in their demeanour of intoxication. The success of this defence is again dependent on the defendant’s credibility and is often combined with arguments of machine inaccuracy and the defence account of their own alcohol consumption being most likely below the limit. The court would be entitled to reject the reading on the evidential breath test and acquit the defendant if they felt that the reading was incompatible with the demeanour of the defendant.


Where an officer has made one of the common observations in his records, such as “smells of intoxicating liquor on the defendant’s breath”, “ the defendant’s eyes were glazed”, “the defendant had slurred speech” it will be more of a challenge to raise a “Spurrier” defence. Conversely, a defendant would have to present more than just the absence of such observations in a “Spurrier” defence. If an officer expresses surprise at the level of the reading or says words to the effect that “I didn’t think you would be over” then there is certainly something to work with.


Police procedure and how a detainee is treated when required to provide a drink driving specimen is everything with drink driving and failure to provide a specimen prosecutions.
One of the leading authorities being DPP v Jackson (Failure to Provide Specimen) [1999] 1 A.C. 406 where a suspect’s claim “I don’t like needles” was first dismissed as a reasonable excuse for failing to provide a specimen. The case throws up a number of principles in relation to procedure and how this should be outlined by the police personnel conducting the tests.


It was held in Murray (Gary) v DPP (1994) 158 J.P. 261 that there is no discretion to admit evidence of a breath specimen if the procedural requirements of the Road Traffic Act 1988, ss.7and 8 have not been met. Further cases cited in this leading authority were Howard v Hallett [1984] R.T.R. 353 Russell v Devine [2003] UKHL 24


Section 16 of the Road Traffic Offenders Act 1988 provides that evidence of the proportion of alcohol or a drug in a specimen of breath may be given by the production of a statement automatically produced by the prescribed device by which the proportion of alcohol in a specimen of breath was measured and a certificate signed by a constable (which may but need not be contained in the same document as the statement) that the statement relates to a specimen provided by the accused at the date and time shown in the statement. If no statement or printout is served, this could be the fatal flaw in the Crown’s case.


Types of sample: Currently a drink driving charge could be based on a breath, blood or urine analysis. Blood and urine samples are only obtained from a suspect in certain circumstances, with the breath test being the favoured method of measuring the suspect’s blood alcohol levels. The police will move to blood or urine (and it is up to them to choose which of these to request or offer) if the variance between the two breath readings is too wide for the readings to be considered accurate; if the breath test machine is not working or is not available or if there is a medical reason why a suspect is unable to provide a blood test.


2015 Changes to remove the “statutory option”

Until 2015, many suspects were able to choose a second chance of providing a blood or urine sample if their breath reading was “borderline.” However, in March 2015 this option was removed by The Deregulation Bill. Therefore, even if a detainee’s reading is 41 in breath, they have no right to seek a second (more accurate) sample.


The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 were introduced in 2015 in order to make it easier for the police to apprehend and charge offenders without having to ensure the laborious impairment test is conducted correctly. The drug driving offence has seen an exponential increase in arrests for drug related driving offences with a zero tolerance limit in place for a number of illegal drugs and higher tolerance limits for prescription drugs. For more information about drug driving offences, visit our specialist www.drugdrivingoffence.co.uk website.

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