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Volvo V40
Hi Posters,

On friday I had a bit of a party at my house. A few guests stayed, and whilst I drank a bit I wasn't sure how I was feeling. Waking up the next day with a headache a few of the girls asked me to drop them down at the local tube station.

Being only 5 minutes away I didn't grab breakfast because they were in a bit of a hurry. just grabbed a T-shirt, and then out the door, barely a sip of my coffee was made I took them down to the station, then disaster - apparrently i went through an orange light and I was being pulled over and breath tested.

Back at the station my readings came back at 41 over 35 and I excercised my rights to have a blood sample. The officers gave me a coffee straight after my breath test and were genuinely really friendly. I didn't think that they wanted to charge me.

The blood test was undertake approximately 45 -50 minutes after the breath test, and the alcohol was definitely on the way out of my system. Does anyone know if a breath test on an empty stomach may have influenced the results against me.

If my blood reading is 80 or 81 millilitres per litre - I have calculated this based on the delay, Can the police excercise discretion. They were impressed as I am full time volunteer helping keep under privileged children in the community, maybe this will sway them?

I am going to get my own sample tested but by counting back on an average of 15 ml burnoff of alcohol I think I will be just on the limit. Even though I am fairly slight, I am a fit active guy with a high metabolism will this help?

Any help or advice would be greatly appreciated, and yes I will be getting my own blood sample anaylsed too - Cheers



Volvo
Glacier2
Between 35 and 40 on the breath test will result in no further action. Now with a 50 min delay I would think the blood will comeback clear.
ict_guy
You blood alcohol level will reduce over time after your stomach has emptied. It is your saving grace that you skipped breakfast. If you had had breakfast, you would have delayed the absorbtion of alcohol. The 40-45 minutes delay, will undoubtably be in your favour. Would have been better though not to have drank or eaten anything at all during the process.
Volvo V40
Hey Posters,

Thanks for your comments. Yes I will not be getting into that situation ever again - it was very much a wake up call/ close shave.

I have been doing some more googling and have found the following website link.

Evidently there is as 6 ml tolerance for the blood sample, so in order to be prosecuted I would need to be over 86 ml per 100 ml, therefore it would be highly unlikey given two breath samples at 41 and 42, I would still be over the limit

The attached link is of interest for those who are in a similar position.

http://www.druglibrary.org/schaffer/Misc/driving/s20p2.htm

Cheers,


Jeff
jobo
what did the pull you for
Fredd
QUOTE (Volvo V40 @ Sun, 1 Feb 2009 - 11:32) *
apparrently i went through an orange light and I was being pulled over and breath tested.

The Rookie
QUOTE (ict_guy @ Sun, 1 Feb 2009 - 13:55) *
You blood alcohol level will reduce over time after your stomach has emptied. It is your saving grace that you skipped breakfast. If you had had breakfast, you would have delayed the absorbtion of alcohol. The 40-45 minutes delay, will undoubtably be in your favour. Would have been better though not to have drank or eaten anything at all during the process.


Seeing as the alcohol was drunk the night before, I doubt there was any left to absorb.

Eating will speed up the metabolism and that would have helped him metabolise the alcohol out of his sytem!

I suggests the Op gets his own blood sample analysed according to the FAQ sheet he would have been given.

Simon
Ocelot
Even though you only drank the previous night, your liver will still be working on detoxifying approximately 1 unit (half a pint) per hour. As they don't prosecute under 40 and your reading was 41 I suspect your blood test will be justunder the limit, but I would still have the blood sample they would have given you analysed independently.
Starfighter
QUOTE (Volvo V40 @ Sun, 1 Feb 2009 - 11:32) *
The blood test was undertake approximately 45 -50 minutes after the breath test, and the alcohol was definitely on the way out of my system.

Are the police permitted to do back calculations for this length of time?

QUOTE
Back at the station my readings came back at 41 over 35

The Poilce take 2 samples and it the lower of these used as evidence of intoxification. The level for prosecution is generally taken as 40 or more so the fact you blew "over 35" but presumably below 41 should give an indication that you were marginal. There is also a maximum difference between the 2 readings to make the test valid.

QUOTE
I excercised my rights to have a blood sample

You have no rights to exercise in this situation. The option of a blood / urine test is down to the office not the accused.

The learning point here is 1 hour per unit from the time you stop drinking.
southpaw82
QUOTE (Starfighter @ Mon, 2 Feb 2009 - 20:08) *
QUOTE
I excercised my rights to have a blood sample

You have no rights to exercise in this situation. The option of a blood / urine test is down to the office not the accused.


Not so in this case. Where a breath test can not be administered then the officer can move to blood/alcohol, the choice of which is down to him. However, where a breath test has been administered but is less than 50 then the subject may require it to be substituted by a specimin of blood/alsohol - s. 8(2) of the Road Traffic Act 1988 (your learning point for the day wink.gif ).
Volvo V40
Hi again,

Thanks for your messages. Today I went to the blood alcohol testing clinic with my sample. My results were phoned in tonight, I am totally devestated this is really terrible news.

I was astounded, but my test results showed that over the 45 minute period to sober up my blood alcohol limit actually went UP a further 15 points ??? icon_redface.gif

I had nothing to drink for around 6 hours at that point so wasn't sure why my levels are going up, you will recall from my previous post I thought I would be going down not the opposite.

To provide you with further facts I finished drinking at 4:30am ish, ( I know it sounds bad, but I was the designated driver, so had my first drink at 1am). The night before I had a couple of large garlic bread baguettes, a burger with chips about midnight, celery, and plate full of chips and dip, so I had quite a bit of food in my stomach.

Having been dragged out of bed by one of the guests, at approx 8:30 only having time to brush my teeth with mouthwash, I was pulled 8:45am taking someone to the station 5 minutes away. The breatholiser at the time went to warning then 3 seconds later decided to fail me, as it took a while to give a failed reading the officers commented that usually people fail much faster than that so I would be borderline.

So with the evidential breath test at 9:55am in the morning my blood alcohol equivalent was 93 (41). The second test was 94 (42). (75 minutes after being pulled over)

My blood test was taken at 10:45 revealed abovementioned results 106 and 108. How come it was still going up. (120 minutes after being pulled over)

I do have one question however further to Starfighters comments which I note with interest. I worked out at the time I was pulled over using back calculations I would have been under the limit. Has this ever been used as a successful defence?

Any thoughts suggestions would be appreciated sad.gif .......

Jeff

jobo
your not mixing level in breath . with levels in blood are you

you cant know you blood level went up, coz it wasnt measured at the time

is your blood level over the limit for blood ?

its 80 in blood

you had 40 in breath

are you saying you blood was 55, if so your clear
Volvo V40
Hi Jobo,

I applied a "partition ration" to breath and blood, in the uk its 2.3 so any breath figure you multiply by 2.3 to get your blood sample - eg 41 *2.3 = 91.

My blood actually was 108 and 106 therefore much higher over the limit that my breath, despite having a 45 minute additional wait time...

Jeff
Starfighter
Southpaw82 - Thanks for that, I was not aware of the option above the marginal level. Who makes the choice (blood / urine)?

My comments of the 1 hour per unit are a starting point before you even think about going near the car / keys. ou also need to watch your units, most beers and cider is over 1 unit per half pint and most measures at home are MUCH larger than the pub measures and it all adds up quickly.
Ocelot
From http://www.lawontheweb.co.uk/crimedrinkdriving.htm

"What happens if it is close to the limit? If the lower of the two breath readings at the station is 39 micrograms or below, then you should be released either without charge or with a caution. If it is between 40 and 50 micrograms, then you MUST be offered the option of providing an alternative specimen of either blood or urine (if the police fail to offer you this option then you will have a defence to the charge). You should be asked which you would prefer, but it is up to the police to decide which one they offer you, unless, again, you have a medical condition which would preclude you from providing the necessary sample. The police cannot take a blood sample without your consent, but if this is the option offered and you refuse to consent then the police can rely on the breath sample they have taken.

If you are asked to provide urine they will ask you to provide two samples within an hour. If blood then this must be taken by a police surgeon, who will have to be called to the station. "

You have a right to have the second sample taken and you should always avail yourself of this right.

DavidMann
I think I know what may have happened here, and your problem is that you drank on a full stomach.

When you eat, the food passes from your stomach to your small intestine so it can be digested fully. There is a small valve between your stomach and small intestine that closes, preventing any extra food and drink from passing through.
So any alcohol you drink will sit in your stomach until this valve opens.
When it opens, any excess alcohol will be absorbed into your blood stream since the surface area of your intestines is much smaller than that of the stomach.
It will then take approximately one hour for the excess alcohol to be fully absorbed into your bloodstream.

The absorption of alcohol into the bloodstream occurs PARTIALLY through the wall of the stomach but MAINLY in the upper part of the small intestine .

AND EVEN THOUGH DRINKING HAS CEASED, BLOOD ALCOHOL CONCENTRATION MAY CONTINUE TO RISE BECAUSE ALCOHOL IS STILL BEING ABSORBED FROM THE STOMACH TO THE INTESTINES.

JPM1
MOUTHWASH!!

You should have been asked at the roadside and back at the station if you had recently used any mouthwash? Going by your timings the officers first breath specimen was illegally enforced, consequently if they again failed to ask or listen to the questions in custody then that could be invalidated too. If you have swallowed your mouthwash instead of spitting it out, it MAY explain why your blood/alcohol was still going up.
Volvo T5
hi
during the drink drive procedure you would have been asked questions relating to alcohol consumption/mouthwash etc since the time of the alledged offence AND similar questions relating to the last 20 minutes............whatever you replied to these questions would have been recorded by the BIB on form MG DD/A (drink drive procedure form).

Your lower specimen of breath was 41ug/100ml......the second reading you state was 42ug/100ml...on the way up!!!

You elected to have the BREATH specimen replaced by a specimen for laboratary analysis and in this case the BIB decided blood. It is NOT your option wheather you decide blood or urine....it is up to the BIB unless for medical reasons you cannot provide blood.....Had you declined this option you would have been charged with drink driving using the existing breath reading.

The analysis of the blood will now REPLACE the breath reading. If you come back over the legal limit you will be charged with excess alcohol in BLOOD.

You quote two readings from the blood 106/108.........I can only presume this is from you OWN analysis that you have had done with your blood sample at your expense as the result given by the BIB will consist of a single reading. Above the limit you are knackered....below and that will be the last of it.

bearing in mind the Forensic methods for obtaining a blood alcohol result from a specimen of blood is the same for both defence/prosecution.....I suggest the blood sample will come back from FSS over the legal limit.

Volvo T5
Volvo V40
Hi everybody,

You may have seen my recent discussion threads on drink driving - boy have I been doing a lot of research on the subject recently. blush.gif

Having been made redundant late last year, on Job Seekers Allowance and with a wapping big mortgage in tow and in major negative equity, I believe I am eligible for Legal Aid having negative nett assets and very little to speak of in the way of income.

Can anyone recommend any good specialist solicitors who can represent me in the London Area?

Kind Regards,


Volvo
Volvo V40
Hi guys and girls,

I thought I would share with you on what I have found out on Blood Alcohol level backcounting.

I have found whilst The Police can use backcounting to charge motorists for drink driving, motorists cannot by law use backcounting as a defence unless alcohol was consumed subsequent to being pulled over (the hip flask defence). So if your blood alcohol levels are on the up (eg food in your stomach which absorbed alcohol is emptying or were silly enough to have a drink just before driving), the levels taken by police are assumed correct at the time of driving, even though blood tests or evidential breath tests may be taken some hours later.

Following on from my query the results of the Police Blood test came back at 84, so with the limit being at 80 I am facing legal charges. I have one last question re: procedures that hopefully some may know, otherwise despite having a previously clean record I will get a criminal record for being only 5% over. This will be in my next post.

The Road Traffic Offenders Act 1988 reads:
15 Use of specimens in proceedings for an offence under section 4 or 5 of the Road Traffic Act


[i](1) This section and section 16 of this Act apply in respect of proceedings for an offence under section 4 or 5 of the Road Traffic Act 1988 (motor vehicles: drink and drugs); and expressions used in this section and section 16 of this Act have the same meaning as in sections 4 to 10 of that Act.


(2) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.

(3) If the proceedings are for an offence under section 5 of that Act or, where the accused is alleged to have been unfit through drink, for an offence under section 4 of that Act, that assumption shall not be made if the accused proves—

(a) that he consumed alcohol after he had ceased to drive, attempt to drive or be in charge of a motor vehicle on a road or other public place and before he provided the specimen, and

(b) that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if the proceedings are for an offence under section 4 of that Act, would not have been such as to impair his ability to drive properly

[/i]
Volvo V40
Hi Posters,

As per my previous topic, I made a major stupid mistake one morning after having a party. unsure.gif

I offered to take one of my guests to a local tube station, and was found to be over the limit when pulled over. My breath came back at 41/35, and my blood test came back at 84, so am being charged, and have got a solicitor and have some final police procedural questions someone may be able to help me with.

The one slight silver lining is because I lost my job before Xmas, drinking driving defendants on benefits are entitled to legal aid. My day in Court is on Friday, so am a little stressed by everything in general especially until my legal aid application comes through.

At the police station whilst I was arriving at the Custody Suite, and before evidence was collected, (evidential Breathtest/ Blood test was administered) I was told not to worry - Drink Driving is not a criminal offence but would come with a ban and a fine.

I was more relaxed by this, and answered all questions as helpfully as possible. (My parents always told me to be nice to friendly policemen and women)... Again stupid mistake number 2.

The standard procedure is for the police to ask you whether you would like to speak to a solicitor. This happened, and even though policeman advised I could not delay the breath test whilst waiting for a solicitor I asked to speak to the duty solicitor as soon as possible.

After being confused by broken promises of breakfast, and fingerprinting, and confronted by the Doctor with a very large syringe I totally forgot to remind the policeman to let me speak to a solicitor during the 2 hours I was held at the police station.

I was officially charged on Thursday. It was agreed by the constable that she told me that Drink Driving was not an Criminal offence, and this was even reiterated by The Senior Seargeant who officially charged me. I understand that this is not the case and the charge will be listed on CRB, so even if I am lucky enough to find a job they will probably turn me down. Oh and visas to the US will be completely off limits too I understand, I so wish I had spoken to a solicitor when I was in the station.

Does anyone know if I have grounds to appeal based on procedural improprieties ie police not following set procedure or offering incorrect advice, failing to act upon requests for legal advice.

I will never go anywhere near car keys again having drunk in the previous 24 hours I promise.... I am a surveyor and desparately need to retain my license in order to get a job again.

Desparate and worried - Volvo V40 icon_hang.gif
andy_foster
QUOTE (Volvo V40 @ Tue, 31 Mar 2009 - 14:37) *
As per my previous topic...


You've started a duplicate thread!
Volvo V40
Hi Andy,

I thought it may be better to put on a different topic.

The topic title was: Is Drink Driving a Criminal Offence, and Possible Police Station Procedures contravention. This has nothing to do with discretionary limits as per the original title...

Perhaps you can review your comments about the suitability of a separate thread accordingly.

Thanks,

Volvo
Volvo V40
Dear all,


Its been a while, although I though i would provide an update on my case, I could not believe how long it took before this was resolved and I would hasten to add I am very much more careful now everytime I get behind the wheel.

The defence argument raised that there was reasonable doubt because my blood sample registered at 102 over a limit of 80, and the police test was 84.



Whilst I acknowledged the police automatically deduct 4 (so their actual result was 88) the difference between both samples was just too big, and chances of them coming from the same sample were 2.8 million to one. It turned out the sampling doctor had only 3 weeks experience. I appointed an expert witness, the person who tested my sample.


After three months the blood samples and because of other questions raised in the due procedure, the actual vials of blood were all disposed of so it was impossible to DNA test the evidence.


The prosecution argued that both samples were over as was my breath test at 41/35. The judge held that the breath test was irrelevant, and whilst there was some likelihood that I may have been over the limit there was sufficient doubt that I was indeed given a test sample of my own blood. This is a critical step in the process and without this the process has not been followed. All charges were thrown out and I am pleased to say I still have a totally clean license.


Best wishes for anyone else going through the same ordeal. You can message me and I will provide further info.


Volvo V40
ict_guy
Fantastic result. Well done!!!!

Next time a 'guest' tries to kick you out of bed for a lift to the station, tell them to WALK!!!!!!

biggrin.gif biggrin.gif
sgtdixie
QUOTE
Fantastic result. Well done!!!!


Given the circumstances not the phrase I would use.
ict_guy
QUOTE (sgtdixie @ Sun, 19 Aug 2012 - 13:09) *
Given the circumstances not the phrase I would use.


Hmmm!!! ....and the phrase you would use is??? rolleyes.gif
sgtdixie
QUOTE (ict_guy @ Sun, 19 Aug 2012 - 13:21) *
QUOTE (sgtdixie @ Sun, 19 Aug 2012 - 13:09) *
Given the circumstances not the phrase I would use.


Hmmm!!! ....and the phrase you would use is??? rolleyes.gif


LUCKY.

Hope a strong lesson learnt.
Mattd
Indeed, considering his own sample was analysed at considerably over the limit luck is the word I would use.
ict_guy
QUOTE (Mattd @ Sun, 19 Aug 2012 - 20:23) *
Indeed, considering his own sample....


But that is the defence - It is debatable that it was HIS sample. The original roadside breath test reading is neither here nor there and can not be used to convict. So, all the police had was one blood reading that was very marginally over the blood alcohol limit.

I do not condone drink driving at all, but there is lack of evidence that this was the case - So 'well done' in fighting for justice.
Mattd
Can't really agree myself, his breath results were over regardless just within the required levels for the statutory option.....lucky is def a good description.
Gan
I would also go with "lucky" but with the additional comment that the "morning after" failure will become a lot more common if/when the alcohol limits are lowered
sgtdixie

QUOTE
I do not condone drink driving at all, but there is lack of evidence that this was the case - So 'well done' in fighting for justice


Well, there was a failed RSBT, failed station procedure and a failed blood test. The OP 'won' because his own sample was ****** up and gave an unreliable reading. Very convenient but the law is the law and he walks away an innocent man.

But fighting for justice.... a bit of a stretch I think.
ict_guy
QUOTE (sgtdixie @ Mon, 20 Aug 2012 - 19:10) *
.....failed station procedure.....


I think you've hit the nail on the head!
mickR
QUOTE (sgtdixie @ Mon, 20 Aug 2012 - 19:10) *
Well, there was a failed RSBT, failed station procedure and a failed blood test. The OP 'won' because his own sample was ****** up and gave an unreliable reading. Very convenient but the law is the law and he walks away an innocent man.


or maybe not! thats the point

i do (for once) agree with Dixie. the OP is one very lucky bugger!
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