ChatterBank0 min ago
drink driving
12 Answers
A friend went to a birthday party for a 87 year old male at a local pub, during the 6-7 hours she was there she had 2-3 glasses of wine and a meal and some orange J2O.
Even thought it was pre-booked the landlord made it obvious the party was not welcome and upset one person so much she caught a bus home, trouble was she was the driver for the night.
She drove home and had been in about 1/2 hour when police entered her home [the front door is usually unlocked] and arrested her taking a glass of wine out of her hand. No breath test taken here.
At the Police station she was immediately breathallsed and blew 52, it is doubtful if the 20? minutes you are allowed between last drink and test had elapsed. When she told the officer she was drinking at home the arresting officers denied it
The police never actually saw her drive they say they have a CCTV picture, the only camera is at the pub.
Having googled it looks like police can enter your home without a warrant for any reason, how can she show she had had more drink after driving, and can a CCTV picture be taken as proof
No rants re drink drivers please
Even thought it was pre-booked the landlord made it obvious the party was not welcome and upset one person so much she caught a bus home, trouble was she was the driver for the night.
She drove home and had been in about 1/2 hour when police entered her home [the front door is usually unlocked] and arrested her taking a glass of wine out of her hand. No breath test taken here.
At the Police station she was immediately breathallsed and blew 52, it is doubtful if the 20? minutes you are allowed between last drink and test had elapsed. When she told the officer she was drinking at home the arresting officers denied it
The police never actually saw her drive they say they have a CCTV picture, the only camera is at the pub.
Having googled it looks like police can enter your home without a warrant for any reason, how can she show she had had more drink after driving, and can a CCTV picture be taken as proof
No rants re drink drivers please
Answers
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First of all I am confused:
�...upset one person so much she caught a bus home�
�She drove home and had been in about 1/2 hour...�
Did she drive or catch a bus?
There are two issues as I see it:
1. Do the police have evidence that she drove?
2. Did they conduct the testing routine in accordance with the law?
CCTV evidence can be used to support a prosecution but the images are usually of such poor quality that they are unlikley to be able to identify a driver of a vehicle. However, it may well identify the vehicle itself and that may be what the police are relying upon.
Your friend should be provided with the evidence the police have to support both these issues. The only way she can show she had more drink after driving is to give evidence to that effect. From what you say she would be well advised to engage a solicitor to sort this out.
�...upset one person so much she caught a bus home�
�She drove home and had been in about 1/2 hour...�
Did she drive or catch a bus?
There are two issues as I see it:
1. Do the police have evidence that she drove?
2. Did they conduct the testing routine in accordance with the law?
CCTV evidence can be used to support a prosecution but the images are usually of such poor quality that they are unlikley to be able to identify a driver of a vehicle. However, it may well identify the vehicle itself and that may be what the police are relying upon.
Your friend should be provided with the evidence the police have to support both these issues. The only way she can show she had more drink after driving is to give evidence to that effect. From what you say she would be well advised to engage a solicitor to sort this out.
To New Judge:
I expect that the SHE who got the bus home is not the same SHE as the friend who is the subject of this story.
To Sandbach99 :
I'm not sure of the relevance of the person whose birthday it was being 87. Throwing in such facts and other irrelevant may seem like a diversionary tactic to some.
Was she (the driver with the wine glass) given a chance to have legal representation when charged?
How close is 52 to the legal limit? 3 glasses of wine still sounds too much to me to be driving. And maybe if she started off thinking she wasn't going to be driving she perhaps didn't keep a proper count. Could 2-3 have been 3-4 glasses? How big were the glasses? What strength wine? Safest thing is not to drink at all- or at most have one glass of wine all night.
Your friend needs legal advice- is 'Mr Loophole' Nick Freeman available?
I expect that the SHE who got the bus home is not the same SHE as the friend who is the subject of this story.
To Sandbach99 :
I'm not sure of the relevance of the person whose birthday it was being 87. Throwing in such facts and other irrelevant may seem like a diversionary tactic to some.
Was she (the driver with the wine glass) given a chance to have legal representation when charged?
How close is 52 to the legal limit? 3 glasses of wine still sounds too much to me to be driving. And maybe if she started off thinking she wasn't going to be driving she perhaps didn't keep a proper count. Could 2-3 have been 3-4 glasses? How big were the glasses? What strength wine? Safest thing is not to drink at all- or at most have one glass of wine all night.
Your friend needs legal advice- is 'Mr Loophole' Nick Freeman available?
Hi Sandbach. I doubt the Police/CPS would have a leg to stand on. Your friend should wait to see if she is actually summonds. It would be the police's word against hers re the drink that she had when she got home. I am a little confused that you say that she caught the bus home and then you say she drove? or was that someone else?
Sounds to me that the Landlord did the grassing here and if I were your friend, I would be annonymously phoning the environmental health to complain about his standards of hygeine in his kitchen/toilets etc and also to the Tax Office stating that he has two tills! That should shut him up.
Katie. x
Sounds to me that the Landlord did the grassing here and if I were your friend, I would be annonymously phoning the environmental health to complain about his standards of hygeine in his kitchen/toilets etc and also to the Tax Office stating that he has two tills! That should shut him up.
Katie. x
The 'hipflask' defence may be available to your friend - that she was over the limit only because of the additional alcohol consumed after she had completed her journey. The police could lead expert evidence to rebut this assertion. She only has to prove her defence on the balance of probability - not beyond reasonable doubt. It is for the fiscal or CPS to prove beyond reasonable doubt that the offence was committed on her journey home from the function: that she was over the limit before the additional alcohol was consumed after her journey home.
In my opinion, if you are telling the truth, since the timescales and amount of alcohol consumed can be supported by the evidence of witnesses such as yourself, then your friend has a good chance of being found not guilty - but probably not at first instance in front of a JP who usually know damn all about law. An appeal will probably be necessary.
In my opinion, if you are telling the truth, since the timescales and amount of alcohol consumed can be supported by the evidence of witnesses such as yourself, then your friend has a good chance of being found not guilty - but probably not at first instance in front of a JP who usually know damn all about law. An appeal will probably be necessary.
It's a shame you have such a low opinion of JPs, Stu.
It is not their function in these circumstames to know damn all about the law, any more than it is that of a jury. In judging such a matter as this at trial they are arbiters of fact.
You will also be aware that any appeal heard from the magistrates' court is judged by a panel consisting of two magistrates and a judge - each of whom have an equal say in the outcome.
Sorry to divert away from your question, sandbach.
It is not their function in these circumstames to know damn all about the law, any more than it is that of a jury. In judging such a matter as this at trial they are arbiters of fact.
You will also be aware that any appeal heard from the magistrates' court is judged by a panel consisting of two magistrates and a judge - each of whom have an equal say in the outcome.
Sorry to divert away from your question, sandbach.
Thanks for your replies I took the lady who was to drive back from the party, I didn't stay and returned to pick 4 up., I offered to return for the other 3 but was told that the one now accused that she was alright to drive
I mentioned the age to show it wasn't a party with loads of troublesome guests.
From pub to flat is about 10 mins and from flat to police station 10 mins. it took the police about 30 mins io arrive
It's the aggresiveness of the police when they entered the flat thats' annoyed her friends, she is a 60 year old lady.
I think it is something to do with the glasses size and the strength of the pub wine.
I mentioned the age to show it wasn't a party with loads of troublesome guests.
From pub to flat is about 10 mins and from flat to police station 10 mins. it took the police about 30 mins io arrive
It's the aggresiveness of the police when they entered the flat thats' annoyed her friends, she is a 60 year old lady.
I think it is something to do with the glasses size and the strength of the pub wine.
Thanks for your reply, New Judge.
It's not that I have a low opinion of JP's per se. It's a criticism of the system. I believe that justice is better served when it is administered by those who are legally qualified as opposed to those who are not, however good their intentions are and how much they may wish to serve the public.
On the face of it, drink-driving seems quite simple. There is a limit, and if you go over it, you're guilty. But it's not as simple as that. There are defences available and JP's are often unaware of how those defences work, and how the evidence should be presented and viewed, where the burden of proof should lie, and what thestandard of proof should be. Many 'day-to-day' offences are far more complicated than many JP's seem to think. Cases often seem to be decided from a rather biased position without the assistance of a jury. At least where there is a jury, there is someone to direct that jury on points of law. JP's, may not know the law.
I am not a fan of a system that allows people to be given a criminal conviction by those who are legally unqualified.
Ask yourself this: If you were the accused and were pleading a defence to the crime you were accused of committing, wouldn't you want someone hearing that defence to at least understand your plea?
It's not that I have a low opinion of JP's per se. It's a criticism of the system. I believe that justice is better served when it is administered by those who are legally qualified as opposed to those who are not, however good their intentions are and how much they may wish to serve the public.
On the face of it, drink-driving seems quite simple. There is a limit, and if you go over it, you're guilty. But it's not as simple as that. There are defences available and JP's are often unaware of how those defences work, and how the evidence should be presented and viewed, where the burden of proof should lie, and what thestandard of proof should be. Many 'day-to-day' offences are far more complicated than many JP's seem to think. Cases often seem to be decided from a rather biased position without the assistance of a jury. At least where there is a jury, there is someone to direct that jury on points of law. JP's, may not know the law.
I am not a fan of a system that allows people to be given a criminal conviction by those who are legally unqualified.
Ask yourself this: If you were the accused and were pleading a defence to the crime you were accused of committing, wouldn't you want someone hearing that defence to at least understand your plea?
As an example of what I'm talking about you should read this case:
http://www.scotcourts.gov.uk/opinions/2005HCJA C138.html
Now this was a case completely wrongly decided by someone with very substantial legal qualifications and experience. The Sheriff completely misunderstood what the standard of proof was and when and where the burden of proof switched from accused to accuser. A rather shocking case in my opinion!
If he can get it so wrong, what chance does a JP have?
http://www.scotcourts.gov.uk/opinions/2005HCJA C138.html
Now this was a case completely wrongly decided by someone with very substantial legal qualifications and experience. The Sheriff completely misunderstood what the standard of proof was and when and where the burden of proof switched from accused to accuser. A rather shocking case in my opinion!
If he can get it so wrong, what chance does a JP have?
We�re straying somewhat from the original question but I�m sure sandbach99 won�t mind as it is an interesting debate.
As I�m sure you know, magistrates have the services of a qualified legal advisor (usually known as the court�s �clerk�) to advise them on matters of law. Most matters that magistrates deal with are straightforward but where points of law are concerned it is the job of the advocate to provide the Bench with the salient points in order to make their argument, and for the LA to provide direction in the same way that a judge would advise a jury.
Yes, there are defences against the offence of excess alcohol, as there are for many offences. However, these are not so mysterious that a competent Bench of three magistrates could not grasp them.
The case you cite does not, to my mind, illustrate that the Sheriff was baffled by the complexities of the law. He had a simple matter of fact to determine and he decided that he did not believe the defendant�s contention that she had no intention of driving whilst she was intoxicated. Whether he decided this beyond reasonable doubt or (as he should have done) on the balance of probabilities, is not clear and that seems to be the basis of the appeal. I do not believe there was any misunderstanding of the law on the part of the Sheriff. It is hard to say with only outline details to go on, but I believe the same defence would have been unlikely to succeed in an English magistrates� court. It is clearly insufficient for the accused to simply say he had no intention of driving.
Those convicted by a jury are convicted by people �dragged off the street� (metaphorically, I hasten to add!). Juries have to give no explanation for their verdicts. Magistrates, whilst not usually legally qualified, at least have experience of judging similar matters and have to provide full reasons in open court for their findings.
As I�m sure you know, magistrates have the services of a qualified legal advisor (usually known as the court�s �clerk�) to advise them on matters of law. Most matters that magistrates deal with are straightforward but where points of law are concerned it is the job of the advocate to provide the Bench with the salient points in order to make their argument, and for the LA to provide direction in the same way that a judge would advise a jury.
Yes, there are defences against the offence of excess alcohol, as there are for many offences. However, these are not so mysterious that a competent Bench of three magistrates could not grasp them.
The case you cite does not, to my mind, illustrate that the Sheriff was baffled by the complexities of the law. He had a simple matter of fact to determine and he decided that he did not believe the defendant�s contention that she had no intention of driving whilst she was intoxicated. Whether he decided this beyond reasonable doubt or (as he should have done) on the balance of probabilities, is not clear and that seems to be the basis of the appeal. I do not believe there was any misunderstanding of the law on the part of the Sheriff. It is hard to say with only outline details to go on, but I believe the same defence would have been unlikely to succeed in an English magistrates� court. It is clearly insufficient for the accused to simply say he had no intention of driving.
Those convicted by a jury are convicted by people �dragged off the street� (metaphorically, I hasten to add!). Juries have to give no explanation for their verdicts. Magistrates, whilst not usually legally qualified, at least have experience of judging similar matters and have to provide full reasons in open court for their findings.
It is possible for an analysis to show how much alcohol was in the blood at a given time despite that person having drunk since.
Here is Hampshire Police's procedures for countering the Hip flask defense
http://www.hampshire.police.uk/NR/rdonlyres/C5 91322F-C53F-48AF-844B-EC5A07873613/0/02511.pdf
Here is Hampshire Police's procedures for countering the Hip flask defense
http://www.hampshire.police.uk/NR/rdonlyres/C5 91322F-C53F-48AF-844B-EC5A07873613/0/02511.pdf
So, if you took the person home who was supposed to be driving, then who caught the bus? Very confusing!
Youre adding a lot of superfluous information here. Why does it matter if it was only a 10 minute drive? And why did she have her car there anyway if she wasnt going to drive?
If she had 3 glasses of wine then there's a decent possibility that she was over the limit.
Youre adding a lot of superfluous information here. Why does it matter if it was only a 10 minute drive? And why did she have her car there anyway if she wasnt going to drive?
If she had 3 glasses of wine then there's a decent possibility that she was over the limit.
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