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Drink driving, A friend random check leaving a pub
Mayhem007
post Mon, 24 Jun 2019 - 11:23
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A friend of mine downed the last half pint of his second pint.
As he left the pub car park he was pulled over by unmarked BMW and advised that it was a random check. He was asked if he had been drinking and he advised them that he had 2 pints. They breathalysed him and he scored 46. At the police station he scored 40 twice and advised they were sorry but had he scored 39 they would have let him off.
Both parties were courteous and friendly.
It's his first offence.
What is he likely to get.

I also thought if you had just had a drink the police had to wait 20 minutes, before giving him a side of the road test.


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post Mon, 24 Jun 2019 - 11:23
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southpaw82
post Mon, 24 Jun 2019 - 11:33
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QUOTE (Mayhem007 @ Mon, 24 Jun 2019 - 12:23) *
It's his first offence.
What is he likely to get.


A Band B to C fine and a ban of around 12 months. Usual ancillaries like costs and surcharge. Ban can be reduced (to 9 months) by attendance on awareness course. The DVLA May require him to satisfy them that he does not have an alcohol problem before they give him his licence back.

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I also thought if you had just had a drink the police had to wait 20 minutes, before giving him a side of the road test.

Perhaps they did?


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Logician
post Mon, 24 Jun 2019 - 11:50
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The roadside test is not evidential, it is a screening test. What matters is the station test, and in the course of that he would have been asked to confirm that amongst other things he had not consumed any alcohol in the last 20 minutes. He was indeed unlucky, under Home Office Circular 046/1983 the police do not proceed against any driver with a breath reading of less that 40 micrograms, and the lower of the two readings is used.


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The Rookie
post Mon, 24 Jun 2019 - 12:48
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QUOTE (Mayhem007 @ Mon, 24 Jun 2019 - 12:23) *
I also thought if you had just had a drink the police had to wait 20 minutes, before giving him a side of the road test.

They should, had he not failed at the station it may have been an issue with his detention.

As above, what matters bis that more than 20mins had elapsed between him finishing his drink and the evidential test to avoid any residual mouth alcohol impacting the result.

2 pints in quickish succession is always going to be marginal for many people to be honest.


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southpaw82
post Mon, 24 Jun 2019 - 13:06
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Failure to follow the manufacturer’s instructions may render an arrest unlawful but does not of itself affect the lawfulness of a subsequent test at the police station - DPP v Kay.


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Mayhem007
post Tue, 25 Jun 2019 - 09:21
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Thanks for the replies.It's immaterial now, the process has started, but had he been given that 20 minutes at the roadside, the test may have been below the 40 mark.Unfortunate, for him, but he had not eaten that day and actually was leaving the pub to get to the local shops for some scran.
C'est la vie
As Southpaw has mentioned he is hopeful of being sentenced with 12 months and a reduction of 3 months with the course. No problems medically as he is just a sensible social drinker. There is always no guarantee of the minimum sentence, so I will be helping him with a mitigation statement. There is no hardship plea, in fact he has organised lifts for work, which should have little or no affect on travel arrangements.
Just a shame he had that last half pint on an empty stomach and was immediately breathalyzed after being honest with the officer.


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Fredd
post Tue, 25 Jun 2019 - 09:51
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QUOTE (Mayhem007 @ Tue, 25 Jun 2019 - 10:21) *
Just a shame he had that last half pint on an empty stomach and was immediately breathalyzed after being honest with the officer.

They didn't need his admission to have reasonable suspicion and justify breath testing him - the smell of alcohol on his breath would have been enough.


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NewJudge
post Tue, 25 Jun 2019 - 10:27
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QUOTE (Mayhem007 @ Tue, 25 Jun 2019 - 10:21) *
Thanks for the replies.It's immaterial now, the process has started, but had he been given that 20 minutes at the roadside, the test may have been below the 40 mark.Unfortunate, for him, but he had not eaten that day and actually was leaving the pub to get to the local shops for some scran.
C'est la vie
As Southpaw has mentioned he is hopeful of being sentenced with 12 months and a reduction of 3 months with the course. No problems medically as he is just a sensible social drinker. There is always no guarantee of the minimum sentence, so I will be helping him with a mitigation statement. There is no hardship plea, in fact he has organised lifts for work, which should have little or no affect on travel arrangements.
Just a shame he had that last half pint on an empty stomach and was immediately breathalyzed after being honest with the officer.

As you say, it is water under the bridge, but your assumption that his alcohol reading may have reduced had he been allowed twenty minutes at the roadside is not necessarily correct. His level may well have increased in that time as the alcohol in his last drink was absorbed into his blood.

A hardship plea is not available for excess alcohol. The sentence is a mandatory minimum of twelve months disqualification. He would be very unfortunate to receive more than that.
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Durzel
post Tue, 25 Jun 2019 - 11:01
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What purpose does the 20 minute delay serve? Is it to allow the reading to stabilise? Would it ordinarily benefit or disadvantage the driver, bearing in mind what was said above about it possibly rising instead of falling?

I suppose it's somewhat academic when the OP's friend would've been (and was) in charge straight after leaving the pub, during that 20 minute "grace".
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Steve_999
post Tue, 25 Jun 2019 - 11:35
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QUOTE (Durzel @ Tue, 25 Jun 2019 - 12:01) *
What purpose does the 20 minute delay serve? Is it to allow the reading to stabilise? Would it ordinarily benefit or disadvantage the driver, bearing in mind what was said above about it possibly rising instead of falling?

I suppose it's somewhat academic when the OP's friend would've been (and was) in charge straight after leaving the pub, during that 20 minute "grace".


The delay is to allow the dissipation of any "mouth alcohol" which may otherwise give a false high reading. Depending upon when the alcohol had been consumed, the delay could either benefit the subject (if the consumption was over a long period for example) or disadvantage them if they had consumed a relatively large amount over a short period (when their blood-alcohol would still be rising).
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Mayhem007
post Tue, 25 Jun 2019 - 12:24
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Do you get a reading at the roadside. If so it was 46. At the station he was 40 twice. So the level actually went down. Knowing the area I believe there would be a 15 minute time span


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southpaw82
post Tue, 25 Jun 2019 - 12:32
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Depends on the device used.

I once arrested a guy for drink driving when the roadside device took its sweet time to give a positive reading. He blew marginally under at the station and was released. Bully for him. Unfortunately, he crashed his bike a few days later and was killed. Ironically, he’d have been better off if he had blown over, appeared in court the next day (as was our way) and banned. Life is odd sometimes.


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Mayhem007
post Tue, 25 Jun 2019 - 13:52
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QUOTE (southpaw82 @ Tue, 25 Jun 2019 - 13:32) *
Depends on the device used.

I once arrested a guy for drink driving when the roadside device took its sweet time to give a positive reading. He blew marginally under at the station and was released. Bully for him. Unfortunately, he crashed his bike a few days later and was killed. Ironically, he’d have been better off if he had blown over, appeared in court the next day (as was our way) and banned. Life is odd sometimes.

You take the red pill or the blue pill.....


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Ocelot
post Tue, 25 Jun 2019 - 18:17
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Your friend will need to request the course at Court. One won't be offered automatically.
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Mayhem007
post Tue, 25 Jun 2019 - 18:20
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QUOTE (Ocelot @ Tue, 25 Jun 2019 - 19:17) *
Your friend will need to request the course at Court. One won't be offered automatically.

Thank you best advice. Cheers bonnie lad


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NewJudge
post Tue, 25 Jun 2019 - 20:52
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QUOTE (Ocelot @ Tue, 25 Jun 2019 - 19:17) *
Your friend will need to request the course at Court. One won't be offered automatically.

The offer of a "Drink Drivers' Rehabilitation Course" comes from the Bench. it does not have to be requested. It is offered if (and only if) the Bench thinks it is appropriate (which it almost certainly will be in your friend's case).

This post has been edited by NewJudge: Tue, 25 Jun 2019 - 20:53
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Mayhem007
post Wed, 26 Jun 2019 - 07:52
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QUOTE (NewJudge @ Tue, 25 Jun 2019 - 21:52) *
QUOTE (Ocelot @ Tue, 25 Jun 2019 - 19:17) *
Your friend will need to request the course at Court. One won't be offered automatically.

The offer of a "Drink Drivers' Rehabilitation Course" comes from the Bench. it does not have to be requested. It is offered if (and only if) the Bench thinks it is appropriate (which it almost certainly will be in your friend's case).

Thank you.


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henrik777
post Wed, 26 Jun 2019 - 08:44
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Was he entitled to ask for a blood sample ?

Should he have done so ?
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southpaw82
post Wed, 26 Jun 2019 - 08:56
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QUOTE (henrik777 @ Wed, 26 Jun 2019 - 09:44) *
Was he entitled to ask for a blood sample ?

I believe that entitlement was repealed.


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Fredd
post Wed, 26 Jun 2019 - 10:20
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QUOTE (southpaw82 @ Wed, 26 Jun 2019 - 09:56) *
QUOTE (henrik777 @ Wed, 26 Jun 2019 - 09:44) *
Was he entitled to ask for a blood sample ?

I believe that entitlement was repealed.

It seems that the statutory option of a blood test was repealed by schedule 11 of the Deregulations Act 2015 and as of 10th April 2015 suspected drink drink drivers can no longer rely on the statutory option. I thought it happened longer ago than that TBH.


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