Retrospective drink driving - not right surely?

[pavarotti1980]

Hackney said:

Ok, you said parts are missing and I asked where, so I can ask specific questions.
So, "the story he has told you" doesn't quite make sense. Do you doubt the whole story? If so, then not much I can do.

If there's something specific I can try to find out.

Was he locked up whilst in charge? Who said he had been drinking before driving?

ps im not disputing it

[captain_cynic]

bad company said:

It’s called a ‘hip flask defence’. I’m sure others on here will know a lot more about it than me but if the facts are as stated I wish your pal luck.

This.

Police can retroactively charge someone with DUI but the police then need to prove that the alleged drove whilst drunk and didn't consume the alcohol after.

Basically, he needs to get a lawyer if he wants to fight it. Lawyers will know the technicalities that will get the OP's mate out of it.

[Cat]

captain_cynic said:

This.

Police can retroactively charge someone with DUI but the police then need to prove that the alleged drove whilst drunk and didn't consume the alcohol after.

Not this.

It is for the defendant to prove, on the balance of probabilities, that they consumed alcohol after driving and that is what put them over the limit.

Cat

[captain_cynic]

Cat said:

Not this.

It is for the defendant to prove, on the balance of probabilities, that they consumed alcohol after driving and that is what put them over the limit.

Cat

Balance of probabilities are for civil cases, DUI is a criminal case. Pretty sure that's been explained in this thread already.

Because it's a criminal case, the burden of evidence is on the police's side. They need to demonstrate that they reasonably believe that the OP's friend was drinking before driving.

Which is why they should get a lawyer, this one will be won on technicalities and a lawyer will know which ones to use.

[anonymous-user]

captain_cynic said:

Cat said:

Not this.

It is for the defendant to prove, on the balance of probabilities, that they consumed alcohol after driving and that is what put them over the limit.

Cat

Balance of probabilities are for civil cases, DUI is a criminal case. Pretty sure that's been explained in this thread already.

Because it's a criminal case, the burden of evidence is on the police's side. They need to demonstrate that they reasonably believe that the OP's friend was drinking before driving.

Which is why they should get a lawyer, this one will be won on technicalities and a lawyer will know which ones to use.

agtlaw said:

Civil standard of proof is applicable - it applies to the defendant.

[TheBear]

captain_cynic said:

Cat said:

Not this.

It is for the defendant to prove, on the balance of probabilities, that they consumed alcohol after driving and that is what put them over the limit.

Cat

Balance of probabilities are for civil cases, DUI is a criminal case. Pretty sure that's been explained in this thread already.

Because it's a criminal case, the burden of evidence is on the police's side. They need to demonstrate that they reasonably believe that the OP's friend was drinking before driving.

Which is why they should get a lawyer, this one will be won on technicalities and a lawyer will know which ones to use.

You've actually read the thread and still posted this?!

[aka_kerrly]

Peculiar, a domestic call to the poloce develops into a DUI.

must be more to it...

the cps must require some evidence that driving definitely occurred ?

[Cat]

captain_cynic said:

Balance of probabilities are for civil cases, DUI is a criminal case. Pretty sure that's been explained in this thread already.

Pretty sure you have no idea what you are talking about, in this context.

captain_cynic said:

Because it's a criminal case, the burden of evidence is on the police's side. They need to demonstrate that they reasonably believe that the OP's friend was drinking before driving.

Have a read of section 15 of the Road Traffic Offenders Act, particularly subsections 2 and 3, before you embarrass yourself further.

s15 RTOA 1988 said:

(2)Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the accused shall, in all cases (including cases where the specimen was not provided or taken in connection with the alleged offence), be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused’s breath, blood or urine at the time of the alleged offence was not less than in the specimen.

( 3 )That assumption shall not be made if the accused proves—
(a)that he consumed alcohol before he provided the specimen or had it taken from him and—
(i)in relation to an offence under section 3A, after the time of the alleged offence, and
(ii)otherwise, after he had ceased to drive, attempt to drive or be in charge of a vehicle on a road or other public place, and

(b)that had he not done so the proportion of alcohol in his breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that he was unfit to drive through drink, would not have been such as to impair his ability to drive properly.

Cat

Edited by Cat on Wednesday 25th April 17:29

[roachcoach]

aka_kerrly said:

Peculiar, a domestic call to the poloce develops into a DUI.

must be more to it...

the cps must require some evidence that driving definitely occurred ?

Devils advocate: falling out so severe it was "revenge" knowing the grief it'd cause.

Warm engine is probably enough since (as I recall), even in your driveway you're still "in charge" of a vehicle (in that specific example you're obviously not planning on going anywhere and no evidence of having used the vehicle)...but if the police roll up, are told you're tanked and the engine of your car is warm...I can see it happening.

Domestics often bring out the absolute worst in people.

[Cat]

roachcoach said:

Warm engine is probably enough since (as I recall), even in your driveway you're still "in charge" of a vehicle (in that specific example you're obviously not planning on going anywhere and no evidence of having used the vehicle)...but if the police roll up, are told you're tanked and the engine of your car is warm...I can see it happening.

The driveway to a domestic property is not a road or public place (unless there is some unusual circumstance) for the purposes of drink drive legislation.

Cat

[roachcoach]

Cat said:

roachcoach said:

Warm engine is probably enough since (as I recall), even in your driveway you're still "in charge" of a vehicle (in that specific example you're obviously not planning on going anywhere and no evidence of having used the vehicle)...but if the police roll up, are told you're tanked and the engine of your car is warm...I can see it happening.

The driveway to a domestic property is not a road or public place (unless there is some unusual circumstance) for the purposes of drink drive legislation.

Cat

Cheers. It was from a long time ago, I wasn't sure if I remembered. If the rest is inaccurate (warm engine/circumstance etc) please correct me, don't want future people getting rotten information if possible.

[Hogstar]

There seems to be missing aspects of the story that may well be very pertinent, it the police haven't witnessed the driving I believe that the accused would have to be interviewed by police,what did he say in interview? Prior to this he would have been asked if he had consumed any alcohol (on quite a few occasions throughout the procedures) What did he say in response to these?

If he didn't mention alcohol consumption on any of these occasions you can see why the police may suspect that this defence was come up with later as a get out, also if he mentioned he had consumed alcohol then I suspect that the police may have done a back calculation to work out if the full bottle would have put him over the limit at the time of his alleged driving. If this has been done and they have still charged with the offence that would suggest that there is something that doesn't add up with the persons acount that the police aren't happy with.

These are just a few explanations but without the full story from both the accused and the police rational we are all just speculating..

[guindilias]

captain_cynic said:

Balance of probabilities are for civil cases, DUI is a criminal case. Pretty sure that's been explained in this thread already.

Because it's a criminal case, the burden of evidence is on the police's side. They need to demonstrate that they reasonably believe that the OP's friend was drinking before driving.

Which is why they should get a lawyer, this one will be won on technicalities and a lawyer will know which ones to use.

Complete balls. In a "Drinking after driving" case the burden of proof completely lies on the defendant to prove that he was not drunk while driving.
It's an unusual bit of law, but it's the law.

I've been tried for it before, and only managed to prove I was innocent by
a) Producing the receipt from the friend's house I had been drinking at which showed thatTwo cans of Magners had been bought, that day.

b) The back calculation (costs around £600) to prove that I would not have been over the limit at ANY stage after two cans, let alone while driving - until I drank once I was home. It was a long, and extremely expensive case!

Edited - sp.

Edited by guindilias on Thursday 26th April 12:23

Edited by guindilias on Thursday 26th April 12:24

[aka_kerrly]

roachcoach said:

aka_kerrly said:

Peculiar, a domestic call to the poloce develops into a DUI.

must be more to it...

the cps must require some evidence that driving definitely occurred ?

Devils advocate: falling out so severe it was "revenge" knowing the grief it'd cause.

Domestics often bring out the absolute worst in people.

That thought had crossed my mind.

Is the "warm engine" test really that scientific, can you really find yourself in court because of that & back calculating methods which aren't 100% accurate?

I've worked on a fair number of cars in my time an drank my share of alcohol to know I could be drunk enough in terms of being over the prescribed driving limit well within the period it takes for an engine to be classed as stone cold so it does seem possible to drink a bottle of wine an still have a warm car on the drive yet be perfectly innocent .

[roachcoach]

aka_kerrly said:

That thought had crossed my mind.

Is the "warm engine" test really that scientific, can you really find yourself in court because of that & back calculating methods which aren't 100% accurate?

I've worked on a fair number of cars in my time an drank my share of alcohol to know I could be drunk enough in terms of being over the prescribed driving limit well within the period it takes for an engine to be classed as stone cold so it does seem possible to drink a bottle of wine an still have a warm car on the drive yet be perfectly innocent .

I really don't know for sure, but given the broad wording of the law, I wouldn't be surprised in the least.

You can find yourself in court for sleeping after a drink in your car, you have to go out of your way to "prove" you had no intention of driving (no keys for example) so yeah I'd not be surprised at all.

[EazyDuz]

roachcoach said:

Devils advocate: falling out so severe it was "revenge" knowing the grief it'd cause.

Warm engine is probably enough since (as I recall), even in your driveway you're still "in charge" of a vehicle (in that specific example you're obviously not planning on going anywhere and no evidence of having used the vehicle)...but if the police roll up, are told you're tanked and the engine of your car is warm...I can see it happening.

Domestics often bring out the absolute worst in people.

If the police didnt check and record the engine temp at time of arrest, thats grounds for reasonable doubt, and so OPs friend should be found innocent.

[guindilias]

Did you read the thread AT ALL?
There is no "reasonable doubt" in a hip flask defence, the defendant must prove himself innocent - unless he has firm evidence that he was under the limit when he was driving, he gets busted.

Edited by guindilias on Thursday 26th April 21:16

[anonymous-user]

I'm pretty sure cat is a legal professional. I love it when the armchair experts argue with real ones...

[Pothole]

Just popped in to see if the OP has bothered to get any more FACTS. Seems not. Carry on.

[Roger Irrelevant]

Thesprucegoose said:

I'm pretty sure cat is a legal professional. I love it when the armchair experts argue with real ones...

As a legal professional I completely agree with you! I also like it when amateur Columbos reckon they've caught somebody out and try to construct an alternative version of events, e.g. 'the police don't go round to people's houses because of an argument'. Honestly, the police I know would tell you that some days that's pretty much all they do!