Defending Drink Driving Allegations

Driving With Excess Alcohol – Breath

When a motorist is stopped and arrested for drink driving and taken to the police station, the first specimen the police will attempt to take is breath. An evidential specimen of breath can only be taken at a police station on an evidential breath testing machine. 

There are three evidential breath testing devices:

• The Lion Intoxilyser 6000UK 
• The Intoximeter EC/IR 
• The Camic Datamaster

When a motorist is taken to the police station, as a starting point a requirement will likely be made for a specimen of breath to be supplied. The police should go through a form called the MGDD/A form with the detainee. Whilst this form is 19 pages, not every question in the form must be read. The main questions that are required surround post-incident consumption, operation of the machine, and the “statutory requirement”. Failure to follow the form exactly is not a bar to conviction for the offence as the form is simply a “plain man’s guide”. With that being said, failing to give or failing to effectively communicate the statutory warning is fatal to any prosecution for driving with excess alcohol.

The statutory warning is a form of words which have been decided to effectively inform a detainee that a requirement for a specimen is being made, and that failure to provide such a specimen will render them liable to prosecution. 

Section 7(7) of the Road Traffic Act 1988 makes it clear that an officer must give the statutory warning on requiring a sample from a person. Therefore, even if a sample has been provided, if the warning was not read the sample would be inadmissible.

To comply with the requirement, a motorist will have to provide two satisfactory samples of breath. Typically, the police will not charge if the specimen is below 40 micrograms of alcohol per 100ml of breath despite the limit being 35 micrograms. If a sample is provided that is 40 micrograms or above, a motorist will usually be charged and bailed to attend court.

When Would a Specimen of Blood or Urine Be Required?

There are specific circumstances when a specimen of breath may not be required, and an alternative of blood or urine would be required. These circumstances are outlined in Section 7(3) of the Road Traffic Act 1988: 

• The constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or 
• Specimens of breath have not been provided elsewhere and at the time the requirement is made a device, or a reliable device is not available at the police station, or it is then for any other reason not practicable to use such a device there, or 
• A device (the evidential machine) has been used but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned. 

A requirement for blood or urine would also be the only option with detainees at the hospital, as a specimen of breath can only currently be required at a police station.

Driving With Excess Alcohol – Blood

If for any of the reasons outlined above a specimen of breath is unable to be required or provided, then it is typical that the next specimen that would be required is blood.

The procedure for requiring a blood specimen is much more in depth and requires an extra layer of protection for defendants, seeing as they are being required to provide an intimate sample.

At this stage the officer will move on to the MGDD/B form to continue the procedure.

The procedure will follow a similar format to the breath test procedure, but with some extra layers of protection due to the type of sample which is being required. The police will begin with investigating whether there are any medical or other reasons why a specimen of blood should not be required. If medical reasons are raised, these reasons should be considered by the healthcare professional or doctor who has the ultimate decision on whether a specimen should be taken give the reason raised. If no reasons are raised the officer will then move on to make a formal requirement (statutory warning) for a specimen of blood. At this stage, a detainee will either agree to provide a sample of blood or refuse. If the detainee agrees to provide a sample a further confirmation of consent should occur in front of the doctor or healthcare professional.

It is then likely that the doctor or healthcare professional will do an assessment, obtain a detainee’s consent, and take the sample of blood from them. For the procedure to be lawful, there must be a singular sample, taken from the body on one occasion, which is then split into two samples. One sample is for the police to keep for analysis; the other should be provided upon request to the detainee for their own analysis.

The police will then send the blood sample off for analysis at a forensic laboratory. If the sample is in excess of 80 micrograms of alcohol in 100 millilitres of blood, then it is likely a charge of driving with excess alcohol will follow.

Driving With Excess Alcohol – Urine

Urine is the least often sample which is required. Usually, if it is not possible to obtain a sample of breath, officers will move on to require a specimen of blood. It is, however, the officer’s choice whether the specimen is of blood or urine, and therefore it is possible for an officer to proceed directly to a urine specimen. 

Similar to the blood test procedure, the officer will begin the procedure by moving on to the MGDD/B form and investigating any medical or other reasons for the non-provision of a sample of urine. Subject to no reasons being raised, the officer should then move on to make the formal requirement for two specimens of urine. The first specimen should be discarded, with the second specimen being provided within the hour.

This process is usually where officers can slip up. Often, the police will not ensure there are two distinct separate specimens, and this can result in arguments about the admissibility of the urine. A detainee should be advised to fully empty their bladder. The contents of this first urination are to be discarded and then a second sample should be provided within an hour of then which is then split into two. One sample is for the police to keep for analysis; the other should be provided upon request to the detainee for their own analysis.

The police will then send the urine sample off for analysis at a forensic laboratory. If the sample is in excess of 107 micrograms of alcohol in 100 millilitres of urine, then it is likely a charge of driving with excess alcohol will follow.

Hospital Procedures

As the name suggests, there are a separate set of procedures which occur if a motorist is brought to a hospital. A specimen of breath cannot be required at a hospital, so the only specimens which can be required are blood or urine and an officer will go through the MGDD/C form.

The overall procedure relating to the taking of a blood or urine sample is relatively the same as it is at the police station. What path an officer follows will depend on whether a motorist is conscious or unconscious. In most circumstances a motorist will be conscious, and the procedure will proceed. If a motorist is unconscious, a sample of blood can still be taken with the consent of the doctor in immediate charge of the detainee’s case. The procedure would then end until the detainee was fit to continue with the procedure, whereby the officer would make the formal requirements before the sample can be sent off for analysis. 

Motorists who are brought to the hospital (usually following a crash or medical episode) are granted certain protections pursuant to Section 9 of the Road Traffic Act 1988. This adds a further layer to the evidential procedure, in that the police need to notify the medical practitioner in immediate charge of their case about the requirement for a specimen. If the medical practitioner in charge of their case is happy for specimens to be required, the officer can move on with the procedure. If the medical practitioner is not happy for the requirement to be made or for specimens to be taken, the procedure would end.

As the rest of the procedure is the same as it is at the police station, once samples are taken they will be sent off for analysis at a forensic laboratory. If the sample is in excess of the legal limit, then it is likely a charge of driving with excess alcohol will follow. 

Defences to Drink Driving 

While a drink driving charge can feel overwhelming, there are several defences that may apply to your case: 

Procedural Errors 

The police must follow strict procedures when conducting breath, blood, or urine tests. If there were errors in how the tests were carried out, the evidence may be inadmissible in court. 

Faulty Breathalyser or Testing Equipment 

Breathalysers and other testing devices must be correctly calibrated and maintained. If there are doubts about the accuracy of the equipment, we can challenge the reliability of the evidential specimen. 

Challenging Blood/Urine Results  

We can ensure the accuracy of your blood/urine test results by questioning the procedures followed during sample collection and analysis.  

We will look to ensure that the correct chemicals were used to preserve the sample, the sample was properly stored, it was tested by an accredited lab using recognised methods, and the analyst is appropriately qualified. We will also scrutinise the analytical material to ensure the analysis is one on which is safe to rely. These factors are crucial and may form the basis of a legal challenge.  

Continuity  

The continuity of evidence is crucial. Any breaks in the chain of custody can undermine the prosecution’s case.  

Lack of Consent

In cases involving specimens of blood, you must provide clear and unconditional consent for the sample to be taken. Improper pressure from an officer can invalidate the sample. In samples involving blood, the legality of obtaining a blood sample is a critical issue that can significantly impact the outcome of a prosecution. Under UK law, the sample must be taken with the individual’s informed and voluntary consent, typically by a registered healthcare professional – not a police officer. 

If consent is obtained through coercion, misunderstanding, or without proper explanation of rights, this may constitute a breach of the correct procedure. Courts have consistently upheld that any pressure or improper conduct by officers during this process can render the evidence inadmissible. The prosecution must prove that consent was freely given, often through documentation like the HORT/5 certificate, which must be properly completed and disclosed before trial.  

If these safeguards are not strictly followed, it may be possible to challenge the admissibility of the blood sample, which if excluded, would result in an acquittal.  

Failure to retain/split/provide sample on request 

If the sample has not been split into two (one sample into two vials) or if you have required your sample of blood/urine and the police have either failed/refused to provide you the sample, or the sample has subsequently been destroyed or lost by the police, Section 15 of the Road Traffic Offenders Act 1988 makes clear in these circumstances the prosecution’s sample would be inadmissible.

Doctor in Immediate Charge

In cases where the procedure occurs in the hospital, if the police did not inform the doctor in immediate charge of your case that a specimen would be required, this could render the evidential sample inadmissible.

‘Hip Flask’ Defence 

If you consumed alcohol after driving but before being tested, this could explain why your alcohol level was above the limit when tested, even though you were not over the limit while driving. 

No Evidence of Driving 

The prosecution must prove that you were driving or in charge of the vehicle. If there is insufficient evidence, the case may be dismissed. 

Mitigating Factors & Reducing Your Sentence 

Even if a defence is not available, there are often ways to reduce the severity of the penalty: 

• Highlighting personal circumstances, such as reliance on driving for work or family responsibilities. 
• Demonstrating remorse and taking proactive steps, such as attending a drink driving awareness course. 
• Challenging the length of a driving disqualification to minimise its impact on your life. 
• Advancing a special reasons argument not to endorse/disqualify.  

It must be remembered however that the minimum penalty if pleading guilty to or convicted of drink driving is a 12-month disqualification. This is mandatory. Our experienced solicitors will carefully assess your case and present the strongest possible mitigation to the court. 

Penalties for Drink Driving 

The penalty is largely dependent upon how high your alcohol reading was, but other circumstances will  be taken into account: 

• The minimum penalty for a first offender is 12 months’ disqualification from driving and an unlimited fine. 
• The minimum penalty instantly increases to a three-year disqualification when it is a second offence within ten years. 
• Second Offence within a three-year Period and/or an Extremely High Alcohol Level: The court will consider imposing a prison sentence of up to six months, in addition to a disqualification and fine.  

At Olliers we will work tirelessly to protect your driving licence and your future.