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Drink driving, Edinburgh, 7th February 2018, Not Guilty

Drink driving cases are extremely difficult but not impossible to win.

This was a case in which we relied upon a defence of “post-incident” drinking. This defence is available by virtue of section 15(3) of the Road Traffic (Offenders) Act 1988. The legislation is somewhat controversial as it involves a reverse “burden of proof”.

Basically, in any drink driving case, the Crown only needs to prove that an accused person has a certain amount of alcohol in their system and that they drove at some point. The law then “assumes” that the level of alcohol in the accused’s system at the time of driving is not less than the reading provided by breath (or blood or urine) analysis. So imagine a scenario where a person is driving home. They are very upset and this affects the quality of their driving. A concerned passer-by suspects that the person may be drunk. The driver gets home, still upset, and quickly consumes a large amount of alcohol. The police then arrive about half an hour later, having traced the driver via his registration plate. The police smell alcohol. The driver is breathalysed and provides a reading 5 times in excess of the limit. The law “assumes” that he has driven with at least this level of alcohol in his system. The driver is no longer presumed innocent. He must prove his innocence.

Fair? Probably not. But it is the law.

In this drink driving case, our client was reported to the police by workers at a builders yard who were concerned that he was drunk. In the words of one witness he was “stinking of drink”. That same witness also said he stumbled into a shelf unit. Other evidence was not so clear-cut. Our client was otherwise steady on his feet. He was speaking clearly. There was nothing in his driving to or from the yard which gave cause for concern. Our client’s position was that he had been out shopping and had booked his wedding date. He was feeling pretty god when he got home and poured himself a glass of wine. He had almost finished the glass of wine when he spoke to his fiancée on the phone. During the course of the conversation he realised he had forgotten to buy gravel for a building project. So he then drove to a nearby builders yard, made his purchase, returned home. Still feeling pretty elated he drank the best part of two bottles of red wine in about an hour. Then the police knocked on the door……

Cases like this require planning. A toxicology report is required and the client has to give details of what they had to drink and when. The toxicologist then works out if this is consistent with the reading provided to the police. As the burden of proof lies with the accused, the accused also has to give evidence on what they did and when. In this case, the Crown hung its hat on the “stinking of drink” comment. Fortunately our toxicologist was able to give evidence that a strong smell of alcohol is not indicative of the amount consumed but only how recently it was consumed. The fact our client was “stinking of alcohol” proved nothing other than he had taken an amount of alcohol (which he had already admitted – but one glass of wine was insufficient to put him over the limit.

In the end, the Sheriff held that our defence had been made out and our client was found Not Guilty.

This case was defended by Steven Farmer on 7 February 2018