Drink Driving - You Could go to Prison

Everyone knows it's an offence to drive when you're over the limit, but not everyone knows that you can go to prison for the offence, and not everyone knows just how technical this area of law is. Having a good lawyer on your side who knows the area well can mean the difference between being found guilty and not guilty of the offence of drink driving. Similarly, the old wives’ tale of sucking a penny when caught drink driving will not keep you out of jail, but having a specialist barrister to represent you may do.

It is an offence to drive after consuming so much alcohol that the proportion of it in your breath, blood or urine exceeds the prescribed limit, and these limits are as follows:

• Breath: 35 micrograms of alcohol per 100 millilitres of breath.
• Blood: 80 milligrams of alcohol per 100 millilitres of blood.
• Urine: 107 milligrams of alcohol per 100 millilitres of urine.

In these types of cases, the prosecution will have to prove the following:

• That you were "driving" or “attempting to drive”
• A “motor vehicle” (or “mechanically propelled vehicle” if you have been charged with the offence of driving while unfit through drink or drugs)
• “On a road or other public place”
• After consuming so much alcohol that you are over the limit.

“Driving”

The definition of “driving” is wider than you might think.

Whether a person is “driving” is essentially a question of fact, dependent on the degree and extent to which a person has control of the direction and movement of the vehicle. Whether the accused deliberately sets the vehicle in motion is also an important factor.

Court have held that two people can “drive” a car at the same time (e.g. if someone in the passenger seat leans across the person in the driver’s seat and steers the car using the steering wheel, while the person in the driver’s seat works the pedals).

A learner driver, sitting in the driver’s seat, is a “driver”, although an instructor, who retains simultaneous control of the car, may also be a driver.

Where it is not clear which of two persons was the driver of a vehicle at the relevant time, but that whoever had been the passenger must have aided and abetted the commission of an offence, it is possible for both persons inside of the car to be charged with “driving”.

It is also possible to be deemed to have driven a car without even having started the engine, e.g. if you sit in the drivers’ seat, release the hand brake and allow the car to roll forwards (in this situation, it would be crucial to consider the length of time that the steering wheel was handled and the distance the vehicle travelled in order to determine whether you were really “driving”).  In the same vein, a steersman in a motor vehicle that is being towed by a rope or chain can be said to be “driving”.

“On a road or other public place”

If the Prosecution say that a person was drink driving “on a road” they will need to prove firstly that the surface the person was driving on was indeed a “road” and, secondly, that it is a road to which the general public (not just a special class of the public) have access.

It is a matter of fact and degree whether the surface is determined to be a “road” and a road to which the general public have access; for example, a roadway within a private caravan park has been deemed to be a “road” where it was used by members of the public as a route to the beach.

It has also been decided that a vehicle does not even have to have touched the “road” in order to have driven on it; for example, where a car reversed to the end of a driveway and the car’s boot came into contact with a car parked on the road at the bottom of the driveway, the car on the driveway was held to have been driven on the road as “any material encroachment on the air space vertically above the road” was held to be ”sufficient to justify a conclusion that the vehicle concerned was on the road”.

Lay-bys have been held to be part of a public road. Car parks, however, are generally not “roads”, and you may have a defence if you have been charged with drink driving on a “road” only, and you were stopped by the police driving in a car park (however, it is important to note that such a defence would be unlikely to succeed if you were charged with “driving on a road or other public place” – unless of course you were caught driving in the car park at a time that members of the general public would not have had access to the car park).

Defences to a charge of drink driving

There are a number of defences that can be raised if you are charged with an offence of drink driving:

It goes without saying that if the Prosecution are unable to prove, to the criminal standard, that you were "driving", or that you were "on a road or other public place", you cannot be found guilty of the offence of drink driving.

Other potential defences would include significant procedural breaches when the police are carrying out the drink drive testing procedure at the police station, for example, if the statutory warning that someone can be prosecuted if they fail to provide a specimen was not given.

Another example of a procedural breach would be if a sample of blood was taken from you and you had not given your consent to the relevant medical professional at the time that they took the sample.

Due to the possibility of a procedural breach, it is important that you obtain the relevant drink drive booklet that the police completed when they went through the drink drive procedure with you, as well as any CCTV of when you were put on the intoximeter machine at the police station.

You could argue as a defence that there was something wrong with the intoximeter machine when you gave your breath sample, however, there would need to be specific evidence that supported an assertion that there was a problem with the machine that would have affected the intoximeter reading. Such defences rarely succeed in practice.

A further potential defence would be if someone asserts that they drank alcohol after they had been driving, but before they were breathalysed (this is commonly known as “the hip flask defence”).  Raising this defence does not guarantee that you will be found not guilty by any stretch of the imagination, however.  To be most persuasive, such a defence should be raised at the earliest opportunity with the police (one of the questions that a person is asked during the drink drive procedure is “Have you, since the time of the alleged offence, consumed or used alcohol?”).  The Prosecution are then likely to instruct an expert to undertake a back calculation to attempt to determine the level of alcohol in your breath/blood/urine excluding the additional alcohol that you have consumed.  Due to the very robust way that drink drive cases are charged, if you raise the hip flask defence, you should still expect to be charged with an offence of drink driving, and you should be prepared to take your case to trial and obtain a defence expert report to attempt to prove that your level of alcohol would not in fact have been over the prescribed limit when you drove.

"The Statutory Option"

If you are asked to provide a specimen of breath and the level of alcohol in your breath in the lower of the two specimens that you provide to the police contains no more than 50mcg alcohol, you are entitled to ask that the specimen of breath be replaced by a specimen of blood or urine (it will be for the police to determine whether the further sample is blood or urine) for laboratory analysis. If you choose to give a further sample as a result of being offered the statutory option, the sample you provide should be split into two and you will be asked whether you wish to be given one of the two samples (if you are in this position, it is important that you request to be given one of the two samples, as you can arrange to have the sample in your possession independently analysed at a later date).

If your lower breath reading is 50mcg or less, you may be entitled to be acquitted if:

• You were not offered the statutory option.
• You are mistakenly required to provide a blood sample.
• You provide a sample of blood or urine and, through no fault of your own, the sample cannot be used.
• You are not given the option of providing urine when you might have a medical reason for not providing a blood sample.
• Improper pressure was exerted on you not to exercise your option to provide a sample of blood/urine.