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west77
Hi i'm new to the forum but will describe my scenario the best i can...any questions or clarification please don't hesitate to ask me smile.gif Apologies for the length...


8 weeks ago i was driving along a quiet dual carriageway at approx 10pm when a fox ran across the road; causing me to swerve resulting in my vehicle clipping the kerb and colliding with a lampost...the fire service had to cut the roof of my car to get me out.

I was taken to the hospital (broken ribs, and collar bone) and the 2 attending police officers breathalysed me at approx 3am where i blew 50 (35 breath limit). Blood was taken also which on the summons i've only just received states a reading of 130 (80 limit).

On the summons the only charge mentioned is the drink driving - nothing in relation to the accident etc. Can the courts/prosecution still bring the accident up even though it was due to an external factor ie, the fox running out onto the road

6 years ago, i was convicted of drink driving making this my 2nd offence in the space of 10 years...i am dreading the court appearance and would do anything to avoid a 3 yr ban. I dont mind paying a massive fine...but realise this was a stupid lapse of judgement and have suffered many sleepless nights as a result of my actions...

Solicitors have quoted me around £600 inc VAT to attend court with me and to review the papers prior to my hearing to ensure the police have followed correct procedures; due to the complications ie, accident, hospital, broken ribs

Also is it worth hiring a solicitor, then being banned anyway plus paying the fine on top of that. I'm really 50/50 on this one...I will be suited and booted in court


Questions?

• Only offences stated on summons is drink driving - No mention of accident ?
• Distance driven only half a mile
• Had 2-3 pint cans of stella in car (taken as evidence) …HIPFLASK defence ? (drank them in car after incident, due to shock/pain/panic)
• Had broken ribs but why still breathalysed ?
• One doctor took the blood, should there be permission from 2 ?
• Should i just plea guilty or if not guilty from my description any defences in my favour ?
• Re BACK CALC I was in/out of consciousness & DON’T RECALL being asked any questions so does this mean they haven’t one?
• How likely is the case to be thrown out of court due to a TECHNICALITY ?
• I was offered and accepted the drink rehabilitation course 6 years ago; how likely are magistrates to offer it me again? anything i can say to get them to consider offering it me again ?

Thanks for reading and await in anticipation for replies - all views/opinions welcome



Lew
I think you know most of the answers and due to your previous offence I cant see any way of "getting off"
THe only thing I can see is a possibility of a prison sentence should you pursue the "hipflask defence" and I cant see anyone here wanting to help you with that (unless its true of course, but as you said you were slipping in and out of conciousness that seems an unlikely scenario
Also due to your prior conviction you would have been well aware of the rules and regulations and it could be inferred that if you did drink them after the crash that you were doing it in an attempt to try and get out of the mess you were in
*My personal opinion*
I'm sure someone else will post theirs sometime soonish
Logician
There a quite a number of technicalities in your case, and I would say you need a good lawyer experienced in road traffic.
If only DD is on the summons, that is the only offence you will face in court. With a single vehicle accident it would be difficult to prove careless driving and the penalties are so much less anyway.
Don't even think about concocting a false hip flask defence.
You only drove a short distance but that was because you crashed, how far might you have driven otherwise will be the question asked.
You cannot be required to provide a breath test in a hospital and I do not understand how you gave what seems to have been an evidential reading in a hospital.
The doctor in charge of your case would have had to have given his consent for blood to have been taken from you.
The investigating officer must ask the driver if there is any reason why a specimen of blood should not be taken. The correct procedure is detailed in the MG/DD/C form which will need to be produced in evidence.
If you are found guilty, you are at the level where a fine would be imposed, and 36 to 40 month ban. You cannot trade a greater fine for a lesser ban. Most magistrates would not consider a second chance at a course, but nothing to stop you asking for one.
Pancras
QUOTE (west77 @ Thu, 12 Aug 2010 - 11:16) *
• Only offences stated on summons is drink driving - No mention of accident ?
• Distance driven only half a mile
• Had 2-3 pint cans of stella in car (taken as evidence) …HIPFLASK defence ? (drank them in car after incident, due to shock/pain/panic)
• Had broken ribs but why still breathalysed ?
• One doctor took the blood, should there be permission from 2 ?
• Should i just plea guilty or if not guilty from my description any defences in my favour ?
• Re BACK CALC I was in/out of consciousness & DON’T RECALL being asked any questions so does this mean they haven’t one?
• How likely is the case to be thrown out of court due to a TECHNICALITY ?
• I was offered and accepted the drink rehabilitation course 6 years ago; how likely are magistrates to offer it me again? anything i can say to get them to consider offering it me again ?

Thanks for reading and await in anticipation for replies - all views/opinions welcome

1) The only offence you are being summonsed for is Blood exceeding prescribed level. Why do you want to be summonsed for more offences?
2) Distance driven 'only half a mile' - you have said it is a quiet dual carriageway. Where was you going from and to? Distance driven may be a reason not to disqualify - it is mitigation, not a defence. This usually only applies when you are moving a few yards say from the outside of your house onto your driveway. Being on a dual carriageway is unlikely to be any sort of defence.
3) Drinking 3 cans of stella after the accident is a very foolish thing to do, especially as you was injured and needed to be cut out of your car. A stated case has said that the onus is on you to prove at the time of the accident the proportion of alcohol in your breath was under the prescribed limit.
4) The police have to ask the doctor who is in charge of your care for permission. Without this, they would not be permitted to breath test you. The same applies for taking a blood sample.
5) There does not have to be permission from 2 doctors. The doctor who is in charge of your care gives permission, and the police then call their own doctor to the hospital to take the sample. The sample can not be taken by a doctor who is looking after you at the hospital.
6) I am struggling to see what credible defences you have put up so far.
7) Back - Calculations? How do you know that there was a back - calc done? Is the 130mg amount a back calculation, or is it the amount of alcohol in your blood at the time?
8) If you tell us what technicality you are wanting it to be thrown out on, then we might be able to advise you, but at the moment it looks like you are clutching at straws...
9) The drink drive rehabilitation course is likely to be required as opposed to offered if you are convicted twice within 6 years.

On the face of it, it appears that you have lost control of your car on a deserted dual carriageway, collided with a lamp-post and had to be cut free from your car, and you required medical treatment for broken bones. Blood was taken and shows you to be approximately 1.7 times the legal drink drive limit of 80mg. You are relying on a mixture of possible defences such as the hip-flask defence - implying that you had not consumed alcohol before the crash and therefore are not guilty. You also are arguing about the validity of the breath and blood procedure. You then seek to raise mitigation - distance travelled. You then seek to reduce the sentence by raising the possibility of rehab courses.

All this smacks of desperation. I suggest you either accept that the breath/blood procedure was correct, but if you believe that you have a hip flask defence then go with that - as it does not matter if the procedure was correct if the defence succeeds, or accept the prosecution facts of the offence and look for a credible flaw in the breath/blood procedure to render that inadmissible in evidence.

I would suggest you seek competent legal advice before your court date, and your lawyer can review all of the evidence and advise you how to best prepare a defence.

Personally if I was you, I would be thinking myself lucky I hadn't killed myself, or worse someone else while driving OPL.
Ben Roles
The other thing to consider in court is whether the accident would then be raised as part of the evidence to the bench. Even if you plead guilty the bench will provide the details of your case including your readings and at that point may also choose to detail the accident. You will, of course, have your own opportunity to provide details (or via a legal representative if you choose).

Remember, if a ban is given for 2+ years (and in this case it is going to be at LEAST 3 years) you are able after 2 years to apply to the court to have the remainder of the ban dropped. You have to show (in person):

1. You have committed no further road traffic offences during the 2 year ban, and
2. There is a good and adequate reason for your return of their licence (eg the chance of a new job, promotion, moving to a rural location and need a car [proof of successful alcohol abuse treatment may also be relevant in drink driving cases])

B.

west77
It was a friday and i had drank a pint of strong lager or two at lunch and early evening.

The reason i made reference to 'BAC CALC' is because i wasn't tested for several hours after the incident so am just wondering whether i am lucky as maybe my samples would have been higher than the 50 breath and 130 blood which was eventually taken after x rays etc

Pancras
QUOTE (west77 @ Thu, 12 Aug 2010 - 12:01) *
It was a friday and i had drank a pint of strong lager or two at lunch and early evening.

The reason i made reference to 'BAC CALC' is because i wasn't tested for several hours after the incident so am just wondering whether i am lucky as maybe my samples would have been higher than the 50 breath and 130 blood which was eventually taken after x rays etc

Probably.

Out of interest, I take it the 50µg breath reading was only on a hand held screening device? If so that will not be admissible in court.

Was you offered a sample of the blood to have tested yourself?
west77
Yes the 50 breath was one of those hand-held devices

The courts will only be going by the blood as evidence

I paid to have my own blood sample independently tested by a forensic lab - the readings are the same

I am doubting whether a 'BAC CALC' has been done by the police as they've never interviewed me/phoned me whatsoever / invited me to the police station since the hospital ie, the night of the incident(to ask my weight, height, what i drank/ate and times in order to do BAC CALC )





The reason i feel a procedural error may have been made was that the 2 attending officers were say in their mid 20's and this appeared to be the first such scenario they had to deal with

What makes me say this ?

Well, the number of times they rang their senior officer asking what to do etc etc...they were ready to leave the hospital but the sarge pressurised them into waiting to take the breath/blood
Pancras
QUOTE (west77 @ Thu, 12 Aug 2010 - 12:26) *
Yes the 50 breath was one of those hand-held devices

The courts will only be going by the blood as evidence

I paid to have my own blood sample independently tested by a forensic lab - the readings are the same

I am doubting whether a 'BAC CALC' has been done by the police as they've never interviewed me/phoned me whatsoever / invited me to the police station since the hospital ie, the night of the incident(to ask my weight, height, what i drank/ate and times in order to do BAC CALC )





The reason i feel a procedural error may have been made was that the 2 attending officers were say in their mid 20's and this appeared to be the first such scenario they had to deal with

What makes me say this ?

Well, the number of times they rang their senior officer asking what to do etc etc...they were ready to leave the hospital but the sarge pressurised them into waiting to take the breath/blood

There may well have been a procedural error then if that is the case, however you will need to get all of the case papers viewed by a solicitor to establish if there is some kind of loophole. A procedural error is not guaranteed to get the case thrown out either if it is only minor. Case law on drink driving is very complex, and there have been many 'cases stated' as to what is and what is not admissible where procedural errors may have been committed. It is worth getting a lawyer at the earliest opportunity if you are serious about mounting some kind of defence here.
Ben Roles
It just sounds to me like they were pretty new cops lacking in experience. But they kept ringing a superior officer to understand how to do things properly. The fact they did this adds value to the validity of the tests - i.e. an experienced officer who knows the ropes ensured things were done correctly.

As other posters have mentioned, unless you can SPECIFICALLY state something that you think may have been a procedural boo boo I think you are stuck.

I realise you are not happy with the situation and are looking for an escape route but I think you need to face this for what it is. You crashed a car whilst over the limit and the blood sample confirmed that hypothesis. You now face the consequences of a 3 year minimum ban and fine. Sorry that's not what you want to hear.

Of course, if you geuninely do believe there is some sort of get-out technicality you need to consult an expert ASAP - these things take time to look in to so you need to have all the documentation you have received and a very clear description of events with which you can consult said expert. Without doing the work NOW procedure will just run its course and you will end up where you don't want to be.
Pancras
QUOTE (Ben Roles @ Thu, 12 Aug 2010 - 12:35) *
It just sounds to me like they were pretty new cops lacking in experience. But they kept ringing a superior officer to understand how to do things properly. The fact they did this adds value to the validity of the tests - i.e. an experienced officer who knows the ropes ensured things were done correctly.

As other posters have mentioned, unless you can SPECIFICALLY state something that you think may have been a procedural boo boo I think you are stuck.

I realise you are not happy with the situation and are looking for an escape route but I think you need to face this for what it is. You crashed a car whilst over the limit and the blood sample confirmed that hypothesis. You now face the consequences of a 3 year minimum ban and fine. Sorry that's not what you want to hear.

I would tend to agree.

The MG DD/C procedure is fairly watertight - what has to be said is all written down on the form - even if the officers were inexperienced the form is pretty idiot proof - it says which part to go to next, and the things are read out like a script. Providing that was accurately followed then you are stuck.
west77
I also agree with both you guys

And i don't want to come across in court like i have no remorse as i do; hence the only way is to face the music

"How do you plead ?"

"Guilty...."

3 yrs plus fine, i just hope i'm offered a 25% reduction via the course





west77
Just a quick update for all

Spoke to a solicitor this arvo whom has advised he would need to check through all the paperwork and that if i pleaded not guilty and it ended up going to trial, i'm looking at approx £2k, ob with no guarantees.

I gotta ask are all solicitors this bloody pressurising because it's kinda off putting

I feel like im stuck in a dark place here, and am struggling to see the light at the end of the tunnel
peterguk
QUOTE (west77 @ Thu, 12 Aug 2010 - 17:02) *
Spoke to a solicitor this arvo whom has advised he would need to check through all the paperwork and that if i pleaded not guilty and it ended up going to trial, i'm looking at approx £2k, ob with no guarantees.

I gotta ask are all solicitors this bloody pressurising because it's kinda off putting


Sounds like the solicitor was being straight and upfront.. How did he "pressurise" you????
Pancras
QUOTE (west77 @ Thu, 12 Aug 2010 - 17:02) *
Just a quick update for all

Spoke to a solicitor this arvo whom has advised he would need to check through all the paperwork and that if i pleaded not guilty and it ended up going to trial, i'm looking at approx £2k, ob with no guarantees.

I gotta ask are all solicitors this bloody pressurising because it's kinda off putting

I feel like im stuck in a dark place here, and am struggling to see the light at the end of the tunnel

I would say that £2k for a solicitor to read into and represent you at a Drink Driving trial is probably about the going rate. Not sure what the pressure is - you don't have to have a solicitor, but getting one will give you the best chance of establishing if there is a technicality. Obviously there are no Guarantees - A solicitor advises on the rules of the game, but can't give you a "get out of jail free" card...

If you are going to plead guilty, as you said you was in your earlier post, a solicitor may well be a waste of money - you will get what is coming regardless of what he says for you in mitigation.
west77
thank you all for your opinions and replies

i feel i now have enough to make a decision on my plea

will of course update of the outcome

thanks again peeps, this forum kicks asssssss!
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