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manchester
On Saturday i drove to my local Mcdonalds to get my tea. I had an argument with the girl serving me, got my burger and went home.

Once home i opened a bottle of wine and started to relax for the evening.

about 1 hour later there is a knock at the door, its the police. The girl at Mcdonalds has phoned them to say i was drink driving. Which i wasn't.

Having drank most of a bottle of wine since arriving home i was now well and truly drunk.

The officer asked me to blow into his machine, so i refused while pointing out the prediciment i was in, that yes i am now drunk but had only had alcohol since arriving home.

on went the handcuffs and down to the station.

i was asked to blow into the bigger and better machine at the station, i refused again explaining to the office incharge what had happened.

he said that if i did not give a specimen of breath they were going to charge me with failing to provide a specimen.

it was like catch 22 get done for drink driving or get done for not providing a specimen, i made my choice of got done for not providing a specimen. i am in court on 2nd september 2010.

Please help.
peterguk
You need to see a solicitor.
GB69
Police never found you in the car, so they can only go on her word over yours, or have they got CCTV evidence you were driving?
I think you should of given the sample and took it from there.
manchester
The service was slow and i shouted at here and was abusive when she just fobbed my complant off, not the nicest thing to do looking back and yeah she was well within her rights to ring the police and say i had verbally abused her, but yeah she just took my reg and phoned the cops saying i was drink driving.
SunDayDriver
QUOTE (Durzel @ Mon, 23 Aug 2010 - 17:26) *
You got into an argument with someone at McDonalds (over what?) and completely spuriously she made a point of recording your vehicle details, phoning the Police and telling them you were drink driving (instead of just abusive, threatening or whatever), despite the fact that making that sort of accusation frivolously could open her up to potential prosecution?


Regardless of wether you believe the OP, the situation which he described is technically possible. As such, there must be a plausible defence. It is certainly possible that the women at Mc Donalds reported the OP to the police out of malice. It is also possible that the OP was over the legal limit at the time. We should not be passing judgement on posters that come to these forums for help.

manchester, as per Peters comment Drink Driving charges as best defended by solicitors. If you know in your heart that you were no drink driving, then you have no option but to plead not guilty. In any case, should you win (assuming your case is in England / Wales) your costs will be paid.

QUOTE (GB69 @ Mon, 23 Aug 2010 - 17:29) *
Police never found you in the car, so they can only go on her word over yours, or have they got CCTV evidence you were driving?
I think you should of given the sample and took it from there.


Neither side will need CCTV evidence. He will have to admit he was driving and at the McDonalds otherwise risk a PCJ charge. The argument was that at the time he was driving, he was not over the legal DDL. As such he is not guilty of driving whilst unfit through drink or drugs or drunk in charge of a vehicle.

Edit: As a side note, the offence he will be charged with is failing to provide a specimen or breath. He is indeed guilty of this offence unless he can show he was unable to by reasonable excuse such as a medical reason or duress.

SunDayDriver
Pancras
To charge with failure to provide, the police do not need any evidence that you was driving - in fact there is a stated case which upholds this. You should have provided a breath test, and relied on the hip-flask defence. The police only have to have reasonable grounds to suspect that you was driving, and they was investigating that matter. Had you provided the test, they would have subsequently interviewed you and you should have raised your defence then. As they have no evidence that you was over the prescribed limit, they can't charge you with that, and so will not investigate it further.

The penalty for FTP is minimum 4 points, and discretionary disqualification. There is a presumption to disqualify unless exceptional circumstances. I would prepare yourself for disqualification.

QUOTE (SunDayDriver @ Mon, 23 Aug 2010 - 17:35) *
Neither side will need CCTV evidence. He will have to admit he was driving and at the McDonalds otherwise risk a PCJ charge. The argument was that at the time he was driving, he was not over the legal DDL. As such he is not guilty of driving whilst unfit through drink or drugs or drunk in charge of a vehicle.

Edit: As a side note, the offence he will be charged with is failing to provide a specimen or breath. He is indeed guilty of this offence unless he can show he was unable to by reasonable excuse such as a medical reason or duress.

SunDayDriver

CCTV evidence is irrelevant. Unless he can demonstrate a reasonable excuse as to why he didn't provide a breath test - and claiming it was drunk after driving would not be sufficent, then a FTP charge is likely to succeed.
The Rookie
With Pancras here, the whole scenario is totally irrelevant, he was required to give a breath test and failed to do so.

Besides I would imagine the OP has admitted driving when giving his version of events, so he can't now say he he wasn't, the Police seemed to have good reason to require him to provide a sample, thus covering that base.

His mistake was stupidly not providing the sample as it leaves no defences really, providing the sample and arguing it out later is the only approach that was likley to suceed.

Simon
GB69
The Police are supposed to give you a leaflet to read while you're at the station, so that you know your rights, and what happens if you refuse a sample.
If you're innocent, then should of given a sample, if you were guilty of being drunk at McD's then refusing could be the best option.

Refusing could be seen as an admittance of guilt, and wont go well with a judge.

manchester
i never received any leaflet and was basically told to make my choice give a sample or don't,
they did say that if i did not provide a sample that they would charge me for failing to provide a specimen.
Pancras
QUOTE (manchester @ Mon, 23 Aug 2010 - 18:03) *
i never received any leaflet and was basically told to make my choice give a sample or don't,
they did say that if i did not provide a sample that they would charge me for failing to provide a specimen.

You don't have to be given a leaflet.

You have to be advised that you are suspected of driving a motor vehicle on a road or public place while the proportion of alcohol in your breath exceeds the prescribed limit contrary to s.5 RTA 1988. You then have to be required to do so, and warned that failing to do so is an offence - as they have told you this "they did say that if i did not provide a sample that they would charge me for failing to provide a specimen", then you was aware that that would be the outcome, regardless of what happened before.

If the MG DD/A form was read out correctly by the officer conducting the procedure, then all of these bases were covered, and you will have committed the offence unless you can offer a defence. You will need medical grounds, not the fact that you dispute driving or dispute having consumed alcohol at the time of driving.

Sorry, but the offence seems to be complete, and I would be prepared for a driving ban, as I can not see what defences you have.
GB69
Maybe different forces have different policies, I was given a leaflet, and told I had to read it while they set the machine up.
I was then asked if I wanted to give a sample. I was happy to give a sample and argue later, rather than be done for failing to provide.
Leaflet also said if reading was between 35-39 I would be a given a caution only, between 40-50 another sample of either blood or urine would be taken.
The Rookie
QUOTE (GB69 @ Mon, 23 Aug 2010 - 17:59) *
Refusing could be seen as an admittance of guilt, and wont go well with a judge.

Not at all, you either give a sample and then be proecessed accordingly, or fail to give a sample, in which case everyone charged with that is guilty of the same offence and the sentancing guidleines for the MAGISTRATES apply to all.

Unless you think you are a long way over, providing is the best option, there is always a chance, not providing and offence complete unless there is a major defect in their handling of the case.

To clarify, where you informed that not providing was an offence in its own right?

Simon
Logician
QUOTE
he said that if i did not give a specimen of breath they were going to charge me with failing to provide a specimen.


The OP received proper warning, it seems.

The object now is to minimise the sentence, so the OP needs to empathise his honestly held but unreasonable excuse for not providing a specimen, while pleading guilty. That should keep it down to a fine, and the amount should be about one week's net income, and ban of 12 to 16 month, provided there is no history of drink-drive offences in the last 10 years. It should be possible to knock 25% off the ban with a drink-drive course.
viper


I am unsure about them having the legal authority to require you provide a specimen of breath. There is a one hour gap you claim between them attending your address and the incident at McDonalds (according to your account). Are you being honest here was it an hour or maybe 20 minutes? It is quite conceivable that someone could consume a large amount of alcohol in one hour and you were not involved in any motor vehicle accident. You really need specialist advice.

I agree with the other posters you probably should have given a specimen as I think the case would be hopeless if you had. Your only argument now would be that the basis for them requiring you to provide a specimen was unlawful. The reason being you had not been a in motor vehicle for over one hour and had not been stopped in or around your vehicle but in your own private home. I would imagine a large amount of alcohol could be consumed in the space of one hour. I often attend the off license in my car return home and have a drink, if an officer came around an hour later and said I think you have been drinking, I would say yes but not whilst driving. You need to see the officer log books, witness statement from McDonalds and transcript of the police call. You should be receiving all this in due course. In future just give a sample and save the legal argument for later, pointless refusing the sample as you are giving the police more charges to throw at you. People who refuse to provide samples are normally regarded by the court to be “smashed”.

I would not personally plead guilty without consulting a specialist motoring solicitor.
jobo
QUOTE (viper @ Wed, 25 Aug 2010 - 13:46) *
I am unsure about them having the legal authority to require you provide a specimen of breath. There is a one hour gap you claim between them attending your address and the incident at McDonalds (according to your account). Are you being honest here was it an hour or maybe 20 minutes? It is quite conceivable that someone could consume a large amount of alcohol in one hour and you were not involved in any motor vehicle accident. You really need specialist advice.

e.

<h4 class="LegClearFix LegP1Container">6 Breath tests </h4> (1) Where a constable in uniform has reasonable cause to suspect—

(a) that a person driving or attempting to drive or in charge of a motor vehicle on a road or other public place has alcohol in his body or has committed a traffic offence whilst the vehicle was in motion, or

(b) that a person has been driving or attempting to drive or been in charge of a motor vehicle on a road or other public place with alcohol in his body and that that person still has alcohol in his body, or

© that a person has been driving or attempting to drive or been in charge of a motor vehicle on a road or other public place and has committed a traffic offence whilst the vehicle was in motion,

he may, subject to section 9 of this Act, require him to provide a specimen of breath for a breath test.




it would seem to be sec b that applies




how long after they could do so is up for debate as is if the copper had reasonable course for the belief, if you could show there wasnt RCfB then you wouldn't have committed an offence

a GOOD solicitor required i think
Ocelot
There have been a number of similar cases on Pepipo this year. Try a search on this forum. In particular there was a case of someone who was driving a motorcycle who had to leave it with someone to pick up the next day, went back home and had a few, then got roused by the police who had traced his bike and arrested him for DD. I believe they dropped the case.
led zep
I tend to agree with the above comments especially get a good solicitor.Maybe it will go in your favour depending on the circumstances that you actually answered the door as it not been unheard of for people not to answer the door if they have been drinking and driving and made it home.

I suppose you could say that the reason you did answer it was because you beleived you had not commmitted a drink drive related offence as you had cousumed alcohol after the incident.Hence if this was indeed the case you would have been better off givinng a breath sample.You could have relied on the defence mentioned in this thread however this may have led to issues of back calculation but this is not now relevant.

When you were taken to the station you should have been informed that you can have legal advice but waiting the arrival of a solcitor to attend will not delay the procedure.
You should have requested to speak to solicitor either duty or your own on the telephone who may have given you the advice to provide a sample.You need to see a solcitor and seek their advice.
The Rookie
I'm struggling to see any relevance at all in the last two posts for someone charged with failing to provide.......maybe I'm missing something, but no, I think they are only relevant to those charged with a substantive drink drive offence.

Simon
led zep
If i understand this the OP failed (refused) to supply a breath test having been suspected of driving a motor vehicle having consumed alcohol.He was arrested for this and requested to supply a sample of breath at the police Station for analysis.This is the Police Officers Choice amd if he fails to provide without a reasonble excuse can be charged.
If for example person was stopped for moving traffic offence and requested to provide a specimen of breath even thought they did not suspect him of having cosumed alcohol refusal is an offence but this could be dealt with as a summons and there is arrest process.
So by being at the station and refusing will get you proabaly disqualified there may defences open to you but these will have to be presented at court.
Pancras
QUOTE (The Rookie @ Thu, 26 Aug 2010 - 03:14) *
I'm struggling to see any relevance at all in the last two posts for someone charged with failing to provide.......maybe I'm missing something, but no, I think they are only relevant to those charged with a substantive drink drive offence.

Simon

Yes, I would agree.

The reasonable cause to suspect the OP had been drinking came from the report of the McDonalds staff. There is a big difference between proving that the OP was driving while OPL, and having a cause to suspect him of driving while OPL. The law is very clear - if a lawful requirement is made for a breath test, then it is an offence not to comply with it.

The OP should have provided and then outlined his defence that the bottle of wine was consumed in the intervening period between him arriving home and the request being made. As it stands, the OP seems to have committed a clear cut fail to provide offence, and any scenario which is being put forward here would be mitigating circumstances, rather than a defence.
The Rookie
One thought does spring to mind, what if the OP can show (balance of probabilities) that he was too drunk to understand he was commiting an offence and unable to understand the consequences? I'm not suggesting either are true, but there must come a point where someone is so incapable ith drink that that would be the case.

On the downside from his own version I think the officers will be able to refute that by the OP's behaviour.

Simon
Pancras
QUOTE (The Rookie @ Fri, 27 Aug 2010 - 02:35) *
One thought does spring to mind, what if the OP can show (balance of probabilities) that he was too drunk to understand he was commiting an offence and unable to understand the consequences? I'm not suggesting either are true, but there must come a point where someone is so incapable ith drink that that would be the case.

On the downside from his own version I think the officers will be able to refute that by the OP's behaviour.

Simon

I'm not sure about this at all. One would have to be 'blind drunk' for this to be a realistic possibility. If the OP fully co-operated with the custody sergeant's booking in procedure by answering his name, address, and the risk assessment then this is unlikely to succeed as a defence.
The Rookie
Indeed. and that was the point in my second sentance, it was mildly hypothetical.

Simon
Top Cat
In such a case the police would just charge for driving whilst unfit (sec 4 RTA) where no specimen is required instead of sec 5 which requires an "excess alcohol" specimen.They both carry the same sentencing power.
Mayhem007
I don't know how it is now, but 20 years ago I was charged with failing to provide as I did not blow into the bag correctly 3 times. My car was close by and was asked to give a breath test when they thought they had the keys to the vehicle. Consequently arrested where it turned out at the police station the correct keys were in my possesion. Also, had a previous DD and failing to provide on my license.

Pleaded not guilty to the failing to provide on the grounds that I was not driving the car at the time.

The short version found guilty £50 fine and 4 points.

Possibly a guilty plea with extenuating circumstances would bring about fine and points. However, I would explore the not guilty, you had done nothing wrong other then get on the wrong side of a vindictive spotty faced girl. Who no doubt was in the scheme 'cash for grassing'.

The not guilty will most probably fail, however, at least you will shown the court that you believe you did not commit the more crucial bad behavior of drinking and driving.

You should go in the witness box and give the evidence.

I did not drink and drive

I did not drink and drive

I did not drink and drive

and forget about your emotions and leave out the argument with your sweetheart.
Pancras
QUOTE (The Rookie @ Fri, 27 Aug 2010 - 10:45) *
Indeed. and that was the point in my second sentance, it was mildly hypothetical.

Simon

On that point, I have done some research, and in DPP v Falzarano [2001] RTR 14, it was held that "Being drunk or under stress was not in itself enough to provide a 'reasonable excuse' for failing to provide a specimen".

In DPP v Beech [1992] RTR 239, it was held that "Where a defendants mental capacity to understand the warning is impaired by his/her own drunkenness, this is not a 'reasonable excuse' for failing to provide a specimen".

So that defence has been tested and failed twice.
The Rookie
Good finds....although if in both cases the accused were actually driving, (and I'll check later when I can) then that would obviously modify the level to whcih they were drunk, soeone who had been driving and since drunk more (shown to the same level as a hip-flask defence) must at some point reach a level where they must have a defence - for example actually unconcious!

Simon
desktop_demon
The previous case with the m/c was that of gold_leaf, Click here to see his post.. It is not entirely relevant as it explores the case of the police breathlysing the accused some many hours after the incident and after he had been to a party. He was asleep in bed when the plod stormed his house. Incredible story. and shows how bad statute can be framed.

But in this case the situation is different. The Op refused to provide a specimen. Whoops. Bad move. And probably very difficult to defend. I suppose at best the OP could provide some explanation and mitigation - but I'll wager the bench will not be happy. I have some sympathy with the situation teh OP describes but I do not hold out much hope of an acquittal.

As others have said - it may be a VERY good idea for the OP to contact a specialist motoring (breathalyser situation) lawyer. Good luck!

edit: the relevant law is IMHO given in RTA 1988 s.6, Click here to see it.

6,Power to administer preliminary tests
6. (1) If any of subsections (2) to (5) applies a constable may require a person to co-operate with any one or more preliminary tests administered to the person by that constable or another constable.
[...]
(3) This subsection applies if a constable reasonably suspects that the person— (a)has been driving, attempting to drive or in charge of a motor vehicle on a road or other public place while having alcohol or a drug in his body or while unfit to drive because of a drug, and (b)still has alcohol or a drug in his body or is still under the influence of a drug.
[...]
(6) A person commits an offence if without reasonable excuse he fails to co-operate with a preliminary test in pursuance of a requirement imposed under this section. (7) A constable may administer a preliminary test by virtue of any of subsections (2) to (4) only if he is in uniform.

Then also;
6A Preliminary breath test (1) A preliminary breath test is a procedure whereby the person to whom the test is administered provides a specimen of breath to be used for the purpose of obtaining, by means of a device of a type approved by the Secretary of State, an indication whether the proportion of alcohol in the person’s breath or blood is likely to exceed the prescribed limit. (2) A preliminary breath test administered in reliance on section 6(2) to (4) may be administered only at or near the place where the requirement to co-operate with the test is imposed. (3) A preliminary breath test administered in reliance on section 6(5) may be administered— (a)at or near the place where the requirement to co-operate with the test is imposed, or (b)if the constable who imposes the requirement thinks it expedient, at a police station specified by him

So there can be "reasonable excuse" not to provide .... Hmmm. I will let others consider what might constitute the legal basis for a reasonable excuse. I suspect it would have to be a very reasonable excuse - not "a wing and a prayer".
The Rookie
I think the main 'reasonable excuse'(s) will be physical/medical, rather than in the OP's case a misunderstanding of the law and the situation he was in.

As an example I was breathalized 3 weeks after abdominal surgery (completely clear by the way) and I damn near couldn't do it physically (I actaully blacked out as I finished), the fact I had a very obvious 32 stitch very recent scar mark would probably count as a reasonable excuse for failing to provide, especially if I agreed to a blood test.

Simon
Pancras
QUOTE (desktop_demon @ Fri, 27 Aug 2010 - 16:19) *
So there can be "reasonable excuse" not to provide .... Hmmm. I will let others consider what might constitute the legal basis for a reasonable excuse. I suspect it would have to be a very reasonable excuse - not "a wing and a prayer".

According to Stated Cases in Blackstones Road Policing the following have been held in the courts:

Not Reasonable
  • Refusal until Legal Advice has been sought
  • The absence of an appropriate adult in the case of a juvenile
  • Refusal until Solicitor Present
  • Refusal at the advice of a Solicitor
  • Refusal until driver had read a copy of the PACE codes of practice
  • Mistaken belief by the defendent
  • Belief that the officer did not have the grounds to make the requirement
  • Religious Beliefs
  • Self-induced intoxication
  • Mental anguish caused by custody officer's behaviour


Reasonable
  • Mental incapacity
  • Physical incapacity
  • Inability to understand requirements caused by factors other than drink or drugs (e.g. language barrier)
led zep
I think that 2nd Septembr could be a telling day as this will be the day the OP will have to put his plea forward with the hekp of a good solicitor.
If I were a betting person I think he will have diffcult if not impossible task of convincing any magistrate that he had any sort of defence to failing to provide both a road side and station breath sample.
As has been said he should have provided a sample and used the hip flask defence and back calculations would have been made.
I have no doubt that most if not all magistrates have heard similar cases and ewll probaly make their own mind up (with a little help from the clerk etc).Best of luck.
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