An "interesting one". Failure to provide breath, not driving
Discussion
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
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 had the keys and was opening the car. He was therefore in charge of it and the officer had grounds to request a breath test.
He should have blown and then argued no intent to drive.
The former now does not matter because he failed to provide a sample so that is a different charge.
He is stuffed.
He should have blown and then argued no intent to drive.
The former now does not matter because he failed to provide a sample so that is a different charge.
He is stuffed.
He may have a good defence if he can prove he was going to get a lift home.
He may have mitigation for refusing to give a sample by admitting he was stupidly drunk and was objecting about being done for driving when he wasn't driving.
Now he's sober he realises the sillyness of his actions.
I wonder if you admit to being drunk whether the test is needed?
It's going to come down to the views of the court.
From what you have said I would hope the judge/magistrate would be lenient.
Then again, this could be total nonsense and the mate was planning to drive home.
That's for a court to decide.
He may have mitigation for refusing to give a sample by admitting he was stupidly drunk and was objecting about being done for driving when he wasn't driving.
Now he's sober he realises the sillyness of his actions.
I wonder if you admit to being drunk whether the test is needed?
It's going to come down to the views of the court.
From what you have said I would hope the judge/magistrate would be lenient.
Then again, this could be total nonsense and the mate was planning to drive home.
That's for a court to decide.
PurpleMoonlight said:
Drunk people rarely make wise choices .....
And is exactly how I got so much action through uni!Thanks, Snowboy. Also interesting.
Indeed the story does seem far fetched, he's either lying to me or not, but he has said that he's accepted lifts home from this other guy about 5-8 times before, so he does have 'form' for driving into town, changing his mind re drinking & going out spur of the moment. Single, no kids & self-employed. He can do stuff like this if he wants! May seem a bit more 'spontaneous' than many live their lives, but I can attest he is a bit of loose canon, so the story is not impossible by any stretch!
He's probably lying and was going to drive. I do live my house keys in my car so its possible he was just going to get his keys.
I wonder why the police didnt let him sit in the car down and maybe start it before nicking him. That would have been clear cut or maybe not. He could have claimed he was just warming up his bum with the electric seats
I wonder why the police didnt let him sit in the car down and maybe start it before nicking him. That would have been clear cut or maybe not. He could have claimed he was just warming up his bum with the electric seats
Eclassy said:
I wonder why the police didnt let him sit in the car down and maybe start it before nicking him
Yea. Why not let him drive a little but down the road too? Even more clear cut then.What if they'd allowed him to sit in the car and turn it on...and then he decided to not stop, and make off, mowing someone down in the process?
What would you have to say about the officers then?
Nezquick said:
I wonder if this would have been different if he'd got in the passenger side to get his keys?
Seems very harsh!
drunk in chargeSeems very harsh!
It is an offence for a person to be in charge of a mechanically propelled vehicle on a road or other public place while unfit through drink or drugs.
http://www.drinkdrivinglaw.co.uk/offences/in_charg...
mate got banned for sleeping it off in a pub car park on the back seat with the keys on him
As has been said, providing would have helped as he'd the have the option, on the balance of probabilities, to convince the Magistrates there was no likelihood of him driving.
What if they'd allowed him to sit in the car and turn it on...and then he decided to not stop, and make off, mowing someone down in the process?
What would you have to say about the officers then?It was pretty obvious why that'd be a bad idea!
Mk3Spitfire said:
Eclassy said:
I wonder why the police didnt let him sit in the car down and maybe start it before nicking him
Yea. Why not let him drive a little but down the road too? Even more clear cut then.What if they'd allowed him to sit in the car and turn it on...and then he decided to not stop, and make off, mowing someone down in the process?
What would you have to say about the officers then?
The police did everything they should have done.
It's now up to the courts to decide if matey is guilty of anything.
It's like a sort of triage.
The triage nurses are the first line of contact who decide whether someone needs to see a doctor for more tests, xrays or treatment.
Just because it turns out there's nothing wrong it doesn't mean the triage nurse was wrong to send you for more tests.
The cops are like triage nurses, but for crimes rather than illnesses.
It's now up to the courts to decide if matey is guilty of anything.
It's like a sort of triage.
The triage nurses are the first line of contact who decide whether someone needs to see a doctor for more tests, xrays or treatment.
Just because it turns out there's nothing wrong it doesn't mean the triage nurse was wrong to send you for more tests.
The cops are like triage nurses, but for crimes rather than illnesses.
Edited by Snowboy on Tuesday 22 July 14:08
Snowboy said:
The police did everything they should have done.
It's now up to the courts to decide if matey is guilty of anything.
It's like a sort of triage.
The triage nurses are the first line of contact who decide whether someone needs to see a doctor for more tests, xrays or treatment.
Just because it turns out there's nothing wrong it doesn't mean the triage nurse was wrong to send you for more tests.
The cops are like triage nurses, but for crimes rather than illnesses.
Thanks all for your thoughts so far.It's now up to the courts to decide if matey is guilty of anything.
It's like a sort of triage.
The triage nurses are the first line of contact who decide whether someone needs to see a doctor for more tests, xrays or treatment.
Just because it turns out there's nothing wrong it doesn't mean the triage nurse was wrong to send you for more tests.
The cops are like triage nurses, but for crimes rather than illnesses.
Edited by Snowboy on Tuesday 22 July 14:08
Snowboy, this is the nuance here, that had he blown he'd have to try and take the 'not intending to drive' argument, but that he's commited an absolute offence in failure to provide, he can argue all he wants, but it's an absolute offence. The only way I can see him stepping back from a slam-dunk, is to argue that the circumstances under which he commited the absolute offence were not legal, i.e. if the law says you ahve to be in charge of a vehicle for a legal request to be made, then if it were arguable that he were not 'in charge' (or whatever the term would be), then the actual failure to supply can't exist, as it were not a lawful request. This would be the only line that I think he has to go along to try and get cleared of the charge. This is why reading about under what conditions the request for breath can be made under I think is the place to start.... Is this the RTA?
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