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Mayhem007
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.
southpaw82
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.

QUOTE
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?
Logician
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.
The Rookie
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.
southpaw82
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.
Mayhem007
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.
Fredd
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.
NewJudge
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.
Durzel
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".
Steve_999
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).
Mayhem007
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
southpaw82
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.
Mayhem007
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.....
Ocelot
Your friend will need to request the course at Court. One won't be offered automatically.
Mayhem007
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
NewJudge
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).
Mayhem007
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.
henrik777
Was he entitled to ask for a blood sample ?

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

I believe that entitlement was repealed.
Fredd
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.
peodude
QUOTE (Fredd @ Wed, 26 Jun 2019 - 11:20) *
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.


It was certainly being talked about as early as 2009
Mayhem007
In all honesty he was shocked when he blew positive and is not the sort of guy to doubt the equipment or the procedure. Once you've done the breath test there is no chance of asking for a urine or blood test. I will have to ask him if he was immediately released. More for curiosity really.
Fredd
QUOTE (Mayhem007 @ Wed, 26 Jun 2019 - 13:39) *
In all honesty he was shocked when he blew positive and is not the sort of guy to doubt the equipment or the procedure.

I don't really know why he was shocked. A roadside test reading of 46 shortly after finishing 2 pints isn't shocking, nor is it having dropped to 40 on an evidential test some time later. Unless he's a big guy, 2 swift pints of all but the weakest session beer is risky.
Mayhem007
QUOTE (Fredd @ Wed, 26 Jun 2019 - 14:23) *
QUOTE (Mayhem007 @ Wed, 26 Jun 2019 - 13:39) *
In all honesty he was shocked when he blew positive and is not the sort of guy to doubt the equipment or the procedure.

I don't really know why he was shocked. A roadside test reading of 46 shortly after finishing 2 pints isn't shocking, nor is it having dropped to 40 on an evidential test some time later. Unless he's a big guy, 2 swift pints of all but the weakest session beer is risky.

Not to sure where the 2 swift pints come in Fred when I stated the last half of his second pint.
The Rookie
I think its reading all your comments together, regardless it doesn't surprise me in the least as I mentioned in my first reply.

You did mention the last half pint was an on empty stomach (so presumably the other 1 1/2 were as well as you say he hadn't eaten that day) which only exacerbates it, if it's his regular behaviour it suggests he's actually a habitual drink driver, just wasn't aware of it or been caught until now.
Ocelot
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).


It does normally have to be requested. There is no guarantee they will offer one unless you request it.
Irksome
10 years and 10 months ago I can assure you it was offered without request, whether the policy has changed in the meantime I wouldn't know.
The Rookie
QUOTE (Ocelot @ Wed, 26 Jun 2019 - 16:31) *
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).


It does normally have to be requested. There is no guarantee they will offer one unless you request it.

That’s not what the government says....
https://www.gov.uk/drink-drive-course
NewJudge
I can only say that in the two areas where I have seen sentencing undertaken for Excess Alcohol, the offer has come from the Bench unsolicited. The decision whether or not to offer the course should form part of the overall sentencing exercise and be agreed by the Bench before the sentencing pronouncement begins. Obviously, if the course is not offered (either by design or oversight) there is nothing to prevent the defendant from asking for it.

After the offer has been made the defendant must say there and then whether he wants to accept it. If he does he must nominate a provider before he leaves court. If he accepts the offer but does not take it up it does not matter (he simply serves his full disqualification). However, if he declines the offer he cannot later change his mind.
Logician
Yes, in my experience the bench will make the offer of a course, and there is no reason not to do so for a first offence. There may be hesitation when it comes to a second offence.
Mayhem007
QUOTE (NewJudge @ Wed, 26 Jun 2019 - 19:20) *
I can only say that in the two areas where I have seen sentencing undertaken for Excess Alcohol, the offer has come from the Bench unsolicited. The decision whether or not to offer the course should form part of the overall sentencing exercise and be agreed by the Bench before the sentencing pronouncement begins. Obviously, if the course is not offered (either by design or oversight) there is nothing to prevent the defendant from asking for it.

After the offer has been made the defendant must say there and then whether he wants to accept it. If he does he must nominate a provider before he leaves court. If he accepts the offer but does not take it up it does not matter (he simply serves his full disqualification). However, if he declines the offer he cannot later change his mind.

So he needs to establish who provides the courses in our area and if he does not have that information at hand he will lose the opportunity of taking the course.

If the court offers the course and he accepts, when can he take the course. Can he take it, for instance, 1 month before the 9 months is up,
The Rookie
It can be done at any time, but obviously if its left too late within the 9 months then the paper work may not get processed fast enough for the full benefit to be realised.

Its 16 hours over 3 days spread over three weeks if you read the link to gov.uk I posted earlier.
NewJudge
QUOTE (Mayhem007 @ Thu, 27 Jun 2019 - 09:44) *
So he needs to establish who provides the courses in our area and if he does not have that information at hand he will lose the opportunity of taking the course.

A list of providers will be made available to him, usually before his case is heard.
Mayhem007
Thanks Rookie and New Judge.

And thanks for the link Rookie.

Looks like he will have to and is probably best off, anyway, supplying the courts with a provider. The cost is £150 quid and one particular one starts, ideally in September, in our local town.


I'm presuming the courts will ask him if has anything to say, in which a simple case of apologising for committing the offence and placing a burden upon the courts, along with total remorse for the incident.
The Rookie
QUOTE (Mayhem007 @ Fri, 28 Jun 2019 - 09:48) *
in which a simple case of apologising for committing the offence and placing a burden upon the courts, along with total remorse for the incident.

Pretty much, there is nothing much he can say except fall on his sword, and admit stupidity, he needs to be careful with his wording as my interpretation is that it's likely he's done this before (without realising he was likely over the limit) so trying to claim it as a 'one off' may not go down well. That said the penalty is pretty much nailed on at that low level offence so he'd have to try really hard to make it worse and little he says will make it any better.
Mayhem007
QUOTE (The Rookie @ Fri, 28 Jun 2019 - 09:55) *
QUOTE (Mayhem007 @ Fri, 28 Jun 2019 - 09:48) *
in which a simple case of apologising for committing the offence and placing a burden upon the courts, along with total remorse for the incident.

Pretty much, there is nothing much he can say except fall on his sword, and admit stupidity, he needs to be careful with his wording as my interpretation is that it's likely he's done this before (without realising he was likely over the limit) so trying to claim it as a 'one off' may not go down well. That said the penalty is pretty much nailed on at that low level offence so he'd have to try really hard to make it worse and little he says will make it any better.

Thanks Rookie. His first detected offence at the age of 60, so I dare say he will be a bit more wiser in the future.
Mayhem007
QUOTE (NewJudge @ Wed, 26 Jun 2019 - 19:20) *
I can only say that in the two areas where I have seen sentencing undertaken for Excess Alcohol, the offer has come from the Bench unsolicited. The decision whether or not to offer the course should form part of the overall sentencing exercise and be agreed by the Bench before the sentencing pronouncement begins. Obviously, if the course is not offered (either by design or oversight) there is nothing to prevent the defendant from asking for it.

After the offer has been made the defendant must say there and then whether he wants to accept it. If he does he must nominate a provider before he leaves court. If he accepts the offer but does not take it up it does not matter (he simply serves his full disqualification). However, if he declines the offer he cannot later change his mind.

Once the magistrates have completed the sentencing pronouncement, would he still be able to address the bench, if they had by oversight failed to offer the DDR course.
Can he he suggest to the court, during his mitigation, that they consider the offer of the course, if it pleased them.
NewJudge
QUOTE (Mayhem007 @ Sun, 30 Jun 2019 - 10:20) *
Once the magistrates have completed the sentencing pronouncement, would he still be able to address the bench, if they had by oversight failed to offer the DDR course.
Can he he suggest to the court, during his mitigation, that they consider the offer of the course, if it pleased them.

He will be given the opportunity to address the Bench before they announce their sentence. He may well mention at that point that he may "benefit" from the opportunity to take the course if the court offers it. If he forgets and the course is not automatically offered (which is unlikely) he can always ask after the sentence is announced as he should be asked if he understands everything about the sentence. A Magistrates' Court is less formal than a Crown Court and he will not be slapped down for speaking "out of turn" so long as he does not interrupt anybody else.
Mayhem007
QUOTE (NewJudge @ Sun, 30 Jun 2019 - 11:03) *
QUOTE (Mayhem007 @ Sun, 30 Jun 2019 - 10:20) *
Once the magistrates have completed the sentencing pronouncement, would he still be able to address the bench, if they had by oversight failed to offer the DDR course.
Can he he suggest to the court, during his mitigation, that they consider the offer of the course, if it pleased them.

He will be given the opportunity to address the Bench before they announce their sentence. He may well mention at that point that he may "benefit" from the opportunity to take the course if the court offers it. If he forgets and the course is not automatically offered (which is unlikely) he can always ask after the sentence is announced as he should be asked if he understands everything about the sentence
. A Magistrates' Court is less formal than a Crown Court and he will not be slapped down for speaking "out of turn" so long as he does not interrupt anybody else.


My apologies New Judge for digging deeper. If he was asked if he understood the sentence and was not offered the course, what is the best way to approach a request.

I would have liked there to be with him as Mackenzie friend, however I will be back offshore.
NewJudge
QUOTE (Mayhem007 @ Sun, 30 Jun 2019 - 11:47) *
My apologies New Judge for digging deeper. If he was asked if he understood the sentence and was not offered the course, what is the best way to approach a request.

"Yes, I do understand everything, thank you, your Worships. Could I ask if you are prepared to offer me the Drink Drivers' Rehabilitation course?"

I think your worries are unfounded because it would be unusual to not be offered the course in your friend's circumstances.
Mayhem007
QUOTE (NewJudge @ Sun, 30 Jun 2019 - 16:31) *
QUOTE (Mayhem007 @ Sun, 30 Jun 2019 - 11:47) *
My apologies New Judge for digging deeper. If he was asked if he understood the sentence and was not offered the course, what is the best way to approach a request.

"Yes, I do understand everything, thank you, your Worships. Could I ask if you are prepared to offer me the Drink Drivers' Rehabilitation course?"

I think your worries are unfounded because it would be unusual to not be offered the course in your friend's circumstances.


Thanks you New Judge and everybody else, I guess that about wraps it up.
He's fully prepared now. I think we all have pretty good idea on the likely sentence, nevertheless,I'll post back here in about 4 weeks.
Earl Purple
I reckon the only word he should utter in court is "guilty" when asked how he pleas, and the representing lawyer should ask for the relative leniency, i.e. the course with the shorter ban that goes with it. As he has been cooperative and was only just over the limit and it is a first offence he is likely to get the most lenient sentence available if the attitude is right, which is best done via the lawyer.
wedged
Maybe a bit late now but how long did your friend intend to drive for (in elapsed time) before parking up - as you say he was going for some scran?

As my understanding is that the offence is for blood alcohol level, not stomach alcohol level.
The Rookie
QUOTE (wedged @ Thu, 4 Jul 2019 - 11:50) *
As my understanding is that the offence is for blood alcohol level, not stomach alcohol level.

It's for blood alcohol which is inferred from the breath alcohol result (as alcohol in your breath has come out your blood stream into your breath in the lungs).

Where 'stomach alcohol' comes into it I'm not sure, they didn't take a sample from his stomach.
wedged
It comes about because:

- He had consumer 1.5 pints (borderline) which was in his bloodstream I am guessing.
- He then consumed 1/2 pint and left the pub, that 1/2 pint was in his stomach. It was not in his blood.
- He wanted to go to the chippy. How far away?

If he had proceeded to the chippy within (say) 2 minutes, parked, and consumed a fish supper, with pickled onions, he may have been able to perform all this without committing an offence.

As it was, he was stopped by the police, which altered the course of events.
southpaw82
QUOTE (wedged @ Thu, 4 Jul 2019 - 12:18) *
It comes about because:

- He had consumer 1.5 pints (borderline) which was in his bloodstream I am guessing.
- He then consumed 1/2 pint and left the pub, that 1/2 pint was in his stomach. It was not in his blood.
- He wanted to go to the chippy. How far away?

If he had proceeded to the chippy within (say) 2 minutes, parked, and consumed a fish supper, with pickled onions, he may have been able to perform all this without committing an offence.

As it was, he was stopped by the police, which altered the course of events.

And?
The Rookie
Yeah good luck with that argument! Next you'll be saying he would have stayed at the chippy after eating until his blood alcohol level dropped to a safe value?
Logician
For all sad words of tongue and pen, The saddest are these, 'It might have been'.

But it wasn't, the proportion of alcohol in his breath was over the prescribed limit and that is the end of the matter.
wedged
Until he got back in his car, he wouldn't have committed an offence.

Are you going to prosecute him for _intent_?
TonyS
It's an interesting argument if in fact the police had not waited the required time before taking the roadside test. The argument, such as it is, would be that the roadside test did not prove excess alcohol at that time, and that he was neither driving nor in charge of a vehicle at the later time when the test at the station did prove the excess. But can't they work backwards? Based on the definitive test at the station, provide an estimate of what the blood alcohol level would have been at some earlier time?
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