An "interesting one". Failure to provide breath, not driving

[tenpenceshort]

Snowboy said:

If it can be shown he wasn't in charge if the vehicle then the breath test shouldn't have been requested in the first place.

It's clutching at straws.
But I'm just playing the part of the defence rather than the prosecution.

You are clutching at straws, as this is utter nonsense.

The breath test can be required if the officer reasonably suspects you're in charge of the vehicle. The test is whether his suspicion was reasonable, not whether the person actually was going to drive or actually in charge. Approaching with the keys and opening the door gives an officer plenty of reasonable suspicion.

[Snowboy]

But the driver has the mitigating circumstances that he was temprarilly insane and unable to give consent on account of being drunk.

My point remains, that if the OP's story is true as described I hope the powers that be find some way to send him home with nothing more than a stern lecture about the evils of drink.

[ED209]

Perhaps it was automatism? He was being chased by a swarm of very angry bees and automatically sought refuge in the car?

[anonymous-user]

I guess you mates excuse has been used as million times before.

I do find it a it random he turns up at the car and the police suddenly appear..

The biggest problem with drink drivers is they are liars, and maybe innocent people may be convicted in the blanket approach to tackling it, but maybe that is the price to pay..

[turbojay555]

Hiya stu,

I was in this position a few years ago, slightly different situations but i was not driving and refused a breath test.
I was a rear seat passenger in a crash where the driver and passenger legged it, i was left at the scene of accident, refused a roadside test, was taken to hospital then refused a station test as i believed that because i wasn't driving i couldn't be prosecuted.

Driver handed himself in next morning blew a 0 and admitted driving and crashing the car, i thought this would sort out the mess of my failing to provide now he had admitted being the driver, well after 4 or 5 court appearances lots of days off work and numerous visits to solicitors we got the verdict,

Driver got 3 points and £240 fine, me as a rear seat passenger got 3 weeks ban, £240 fine and a dr70 for 4 years.

Police said if i'd give a sample this would have been thrown out as soon as driver handed himself in.

[VinceFox]

turbojay555 said:

Hiya stu,

I was in this position a few years ago, slightly different situations but i was not driving and refused a breath test.
I was a rear seat passenger in a crash where the driver and passenger legged it, i was left at the scene of accident, refused a roadside test, was taken to hospital then refused a station test as i believed that because i wasn't driving i couldn't be prosecuted.

Driver handed himself in next morning blew a 0 and admitted driving and crashing the car, i thought this would sort out the mess of my failing to provide now he had admitted being the driver, well after 4 or 5 court appearances lots of days off work and numerous visits to solicitors we got the verdict,

Driver got 3 points and £240 fine, me as a rear seat passenger got 3 weeks ban, £240 fine and a dr70 for 4 years.

Police said if i'd give a sample this would have been thrown out as soon as driver handed himself in.

You got a driving ban when you weren't driving?

[carinaman]

The Spruce goose said:

The biggest problem with drink drivers is they are liars, and maybe innocent people may be convicted in the blanket approach to tackling it, but maybe that is the price to pay..

I think that's a generalisation, and people having different ideas of what constitutes a drink driver and what constitutes a liar.

Someone may not be a frequent drinker and we've already established that people can make stupid or unsound decisions when drunk.

[turbojay555]

Yep, and i wasn't even in the front 2 seats i was a rear passenger. Even though the driver got prosecuted in the same court as me i was still banned.
They said they had to ban me for not providing a sample and gave me the lowest ban so got 3 weeks.

[anonymous-user]

carinaman said:

I think that's a generalisation, and people having different ideas of what constitutes a drink driver and what constitutes a liar.

Someone may not be a frequent drinker and we've already established that people can make stupid or unsound decisions when drunk.

i agree but i talk from experience and had to attend a 6 month course with other 'drink drivers' to a past drinking problem, and i guess from your response you haven't been around these hard core drinkers. (which are hard to identify)

To the man in the street they are normal and hide it well, but in reality lie to themselves they are not drink drivers and everyone else around them, when they are habitual offenders.

[carinaman]

The Spruce goose said:

I agree but i talk from experience and had to attend a 6 month course with other 'drink drivers' to a past drinking problem, and i guess from your response you haven't been around these hard core drinkers. (which are hard to identify)

To the man in the street they are normal and hide it well, but in reality lie to themselves they are not drink drivers and everyone else around them, when they are habitual offenders.

The incident I could cite was a young person busy growing up in their first job, just getting their first wheels and going to a party where there's some drink. People can make mistakes growing up, it doesn't mean they're bad for life. I wasn't referring to hard core drinkers.

Regarding the alcoholics I've a good friend whose parent was one. She nudged an adjacent car pulling away from the shops. Someone smelt drink on them and they got banned. In a previous job I had an alcoholic colleague that would've been driving about 20 miles each way. There was some discussion whether they should've been informed on and I can't remember the outcome.

[Pit Pony]

stuthemong said:

PurpleMoonlight said:

Drunk people rarely make wise choices .....

And is exactly how I got so much action through uni!

!

That would be erm technically possibly maybe how do you say erm rape ?

Hence why I told my son, before he went to uni "Never sleep with anyone who is drunk, as they might not actually be consenting"

Or are you saying you chased women whilst you were drunk who normally you wouldn't normally look twice at.

[sunbeam alpine]

I think your friend is in trouble.

About 20 years ago we had friends staying for the weekend. After a boozy evening at home one of my friends ran out of cigarettes and went to his car (parked on the street) to get a new pack. The police just happened to pass by as he was unlocking the car and asked him to provide a breath sample. He failed spectacularly.

Despite his wife, bag with clothes etc being in our spare room (police weren't interested to come and check), and my turning up in court to attest to the fact that he wasn't planning to drive, he got a year ban.

[tenpenceshort]

The Spruce goose said:

To the man in the street they are normal and hide it well, but in reality lie to themselves they are not drink drivers and everyone else around them, when they are habitual offenders.

At the tender age of 16 I did work experience at a VW garage in Harrogate. My mentor for the week was the dealership's business manager, who used to give me a lift home every evening.

Aside from the small bottle of whisky he kept in his desk draw for lunch time, he used to stop at the off licence on Skipton Road to pick up a four pack of Special Brew, which he duly drank as we sat in traffic. Mental.

[16plates]

Yep, to add to whats been concluded, drunk in charge is(can be) an offence.

A mate of mine slept in his car after a night out but put keys on top of the n/s/f tyre, whilst he kipped in the reclined passenger seat. An hour or so later the cops show up, breathalyse him, he explained the situation stating he put the keys outside the car incase something like this happened but long story short gets a 12month ban and few hundred quid fine. That was with a lawyer.

He did say himself though, he would most likely have woken up after 3/4/5 hours sleep and decided to drive home anyway(still over the limit)...

[Pit Pony]

tenpenceshort said:

The Spruce goose said:

To the man in the street they are normal and hide it well, but in reality lie to themselves they are not drink drivers and everyone else around them, when they are habitual offenders.

At the tender age of 16 I did work experience at a VW garage in Harrogate. My mentor for the week was the dealership's business manager, who used to give me a lift home every evening.

Aside from the small bottle of whisky he kept in his desk draw for lunch time, he used to stop at the off licence on Skipton Road to pick up a four pack of Special Brew, which he duly drank as we sat in traffic. Mental.

Father in Law is more sober after 1/2 a bottle of scotch, than I am after a cup of coffee.

[agtlaw]

stuthemong said:

Hi All,

Ahh, that catch-all prefix....

"A friend" has recently got into a bit of a bind with t'Plod.

-Drove into town.
-Decided to go out drinking, got drunk.
-Arranged for a friend to give him a lift home.
-Went back to car to get house keys.
-Whilst stood at front of car unlocking it, plod pulls up.
-Requests roadside breathalyser test as they suspect he has been / is about to drive
-He explains that he's getting his house key out the car as he's getting a lift home, and is not driving
-Plod still requests breathalyser sample, he refuses
-Arrested for failure to supply and locked up overnight
-Now expecting discretionary 3-12 month ban for failure to provide.

Seems a bit harsh given he was not going to drive, and was merely going to get key out of parked car. His friend knew what he was doing and that he was going to be getting a lift home. He's not the first person to be drunk near a car and getting into bother, and won't be the last, but this is my rough understanding of the legal situation around this:

-People have been able to prove that was no intent to drive whilst being drunk around a car before (e.g. after a party at a house, going outside to get some fresh clothes), but letting friends know that this is the case. In this instance, I believe he would be 'clear', apart from the fact that he failed to provide, which is an absolute offence!

-So had he just blown into the meter, blown high, but mounted a defence of not being in control, I believe he would have a strong case for not being prosecuted for drunk driving.

-That he refused to give a sample complicates things, as it's absolute. But surely it's only absolute if you're in control of a car? Otherwise an officer could just breathalyse me in a pub, tell me I'm over the limit, and make DD stick. There must be clauses relating to the suspect being in control of a car for the right to demand a breath test to be valid, no?

If anyone can chime in and help with finding the specific bit of law (or give me a pointer where to look) that relates to both 'being in control' of a motor vehicle, and the requirements that need to be fulfilled for a legal request for breathalyser sample to be demanded, that would be useful, as I think that this is the only way for him to avoid a hefty ban. FI know there are some pretty clued up people on here, so even if you could point me in a direction of what to google it would be great. Is this all under the RTA, or some other bit of legislation? Where should I begin to look?

Thank you one and all for any pointers on the matter.

FWIW, yes he has booked in with a Lawyer next week for some advice, but the more information he knows beforehand, the more effective the meeting / advice will be.

Kindest,

Stuart

and no. It's not me, I'm trying to help him out and this is somewhat of an interesting one to contemplate given the issue of failure to provide and control of vehicle - be interesting for me to understand a little more about how this all works

He would likely have a problem defending this on a NG basis. Some posters are discussing irrelevant info as if it mattered.

First, find out the basis of the prosecution. Is it fail to provide when driving / attempting to drive or (much more likely) failing to provide whilst in charge? Both offences (if in a police station rather than at the roadside) are section 7(6) so reading the charge sheet won't be helpful. You need the case papers. Get them from the CPS by email.

The latter offence carries a discretionary ban (of any length - not sure where you got 3-12 from) or 10 points. Therefore, another problem arises if he has any relevant points - he may be a "totter". Make sure your solicitor appreciates the difference between these offences - they are on different pages of the SGC sentencing guidelines document.

There's a potential way out - guilty but argue Special Reasons. In a similar case, McCormick v Hitchins, SR not to endorse were found where:

1) D had no intention of driving the vehicle, and
2) he could not have been a danger on the road.

You mentioned that he was drunk so SR possibly a non-starter. Need further info.

As always, not enough info given for proper advice but that's my provisional view.

[otolith]

I wonder if the officers involved explained to him the difference in consequences between refusing to give a sample and giving a sample but protesting his innocence of intent to drive?

It's obvious what the drunk in charge law is for, but to be honest I'd rather a few criminals got away with lying about their intentions than one person be unjustly prosecuted.

[Cat]

There are very, very few circumstances where failing to provide a specimen if required to do so is the best course of action. In just about every situation the best option is to provide and deal with the outcome, whatever that may be.

Cat

[agtlaw]

tenpenceshort said:

Snowboy said:

If it can be shown he wasn't in charge if the vehicle then the breath test shouldn't have been requested in the first place.

It's clutching at straws.
But I'm just playing the part of the defence rather than the prosecution.

You are clutching at straws, as this is utter nonsense.

The breath test can be required if the officer reasonably suspects you're in charge of the vehicle. The test is whether his suspicion was reasonable, not whether the person actually was going to drive or actually in charge. Approaching with the keys and opening the door gives an officer plenty of reasonable suspicion.

Briefly,

- The legality of the roadside arrest is irrelevant.

- It is not a prerequisite that a s. 4 or 5 offence has been committed. All that is required is a bona fide investigation into the same (tenpence is right).

- a conviction can follow even if D is not driving, attempting to drive, or in charge.

- even if D cannot be shown to be driving, attempting to drive or in charge then discretionary disqualification or 10 points are available.

- if D is proved to be driving / attempting to drive then absent special reasons, mandatory disqualification

- if D is proved to be "in charge" then absent special reasons, 10 points or a discretionary ban of any length.

[agtlaw]

otolith said:

I wonder if the officers involved explained to him the difference in consequences between refusing to give a sample and giving a sample but protesting his innocence of intent to drive?

It's obvious what the drunk in charge law is for, but to be honest I'd rather a few criminals got away with lying about their intentions than one person be unjustly prosecuted.

If statutory warning is absent then that would be a defence. In reality, they would charge the refusal at the cop shop (where there's CCTV and/or a MGDD/A record of refusal.