Is my buddy going to jail???

[Derek Smith]

Well one positive for the woman: she has a free choice of defence as what really happened hasn't been put on a public forum for the police to check on.

I'm sorry for her problem with regards her domestic situation, but she knew what she was doing and took the risk. I feel that a 12-month ban is what she deserves as a minimum.

[poing]

Cat said:

Amateurish said:

So how do they disprove if a suspect says they drank a bottle of gin after they got home? Not doubting you, just interested.

They don't have to disprove it. As Aretnap posted earlier if you intend to rely on a hip flask defence the legislation states that it is for you to prove (on the balance of probability) that you consumed the alcohol after driving and if you hadn't done so you would have been under the limit.

Cat

Also just interested but following on from the above. Lets say I disliked a person, I saw them walk home from the pub after a few drinks and then called the police to say they drove home. In theory wouldn't this innocent person then be arrested as per the OP's friend? Is it just me or does this seem potentially open to abuse?

[Defcon5]

poing said:

Also just interested but following on from the above. Lets say I disliked a person, I saw them walk home from the pub after a few drinks and then called the police to say they drove home. In theory wouldn't this innocent person then be arrested as per the OP's friend? Is it just me or does this seem potentially open to abuse?

The car wouldn't be warm, so obviously only just driven home

[Cat]

Mk3Spitfire said:

If she was still way over on the Saturday morning (courts sit on Sat mornings) the next available court would have been the Monday morning.

There are no courts on Saturdays in Scotland (except for special custody courts which occasionally sit on public holiday weekends).

Normally in Scotland drink drivers are released on an undertaking to appear at court, approximately 2-3 weeks after the offence. In general they would only be kept as custodies if the blew over 3 times the limit or if they already had a pending drink drive charge.

Cat

[Shuvi McTupya]

speedyguy said:

Maybe she should be allowed to carry on then eh until someone dies would that make it more relevant/fairer for your mate?

Took a chance and lost like the driver below?

http://m.bbc.co.uk/news/uk-england-sussex-30553947

I obviously take your point, but I am sure most of us here have taken risks that could go bad..nobody bats an eyelid if you tell them you were doing 90mph on a motorway but if you ploughed into a stationary car at 90 everybody would think you should be taken off the road..

Does that mean you should be automatically banned for doing 90 because other people have had fatal accidents at that speed?
While drink driving is different, I think an uneventful drive home after a few drinks should be treated with more leniency than if you kill someone while doing the same thing..

[Shuvi McTupya]

Derek Smith said:

Well one positive for the woman: she has a free choice of defence as what really happened hasn't been put on a public forum for the police to check on.

I'm sorry for her problem with regards her domestic situation, but she knew what she was doing and took the risk. I feel that a 12-month ban is what she deserves as a minimum.

I don't think I have given enough information for this thread to be useful for the prosecution, have I?

[poing]

Defcon5 said:

poing said:

Also just interested but following on from the above. Lets say I disliked a person, I saw them walk home from the pub after a few drinks and then called the police to say they drove home. In theory wouldn't this innocent person then be arrested as per the OP's friend? Is it just me or does this seem potentially open to abuse?

The car wouldn't be warm, so obviously only just driven home

You'd think after all the Columbo, Sherlock and others I've watched I'd have thought of that. I'd be a rubbish detective and a worse master criminal.

[Eclassy]

Cat said:

Wrong

Please educate me. I believe without a search warrant an officer can not enter your place of dwelling unless using their power of entry. I dont think the powers of entry would apply here as they are merely carrying out an investigation of an allegation.

cat said:

Wrong again. If you've been required to provide a specimen of breath you can't refuse pending the arrival of a solicitor. Similarly if required under s172 you can't decline to answer pending legal advice.

I didnt say dont provide a specimen. Once they have gained entry then provide a specimen but you do not have to/should not answer any questions until you have had legal advice (especially if you have been drinking). What does s172 have to do with the scenario as posted by the OP? I believe it wasn't even her car. Can an s172 to identify a driver be made orally? It wouldnt have applied to her in this case anyway as she wasnt the owner of the car and would have been required to identify the driver.

Cat said:

Presumably because she blew over 3 times the limit and the Lord Adovacate's guidelines state that in such cases they should be kept in custody to appear at court the next lawful day.

Damn! So anyone caught well over the limit tomorrow night will be looking at 4 days in the can! In one of OP's post it looks like they picked her up from the station on Monday. Maybe it was from the court

[Cat]

Shuvi McTupya said:

While drink driving is different, I think an uneventful drive home after a few drinks should be treated with more leniency than if you kill someone while doing the same thing..

They are treated differently, the former will likely see you banned from driving for 12 months, the latter will likely see you end up in jail.

Cat

[ATM]

Shuvi McTupya said:

speedyguy said:

Maybe she should be allowed to carry on then eh until someone dies would that make it more relevant/fairer for your mate?

Took a chance and lost like the driver below?

http://m.bbc.co.uk/news/uk-england-sussex-30553947

I obviously take your point, but I am sure most of us here have taken risks that could go bad..nobody bats an eyelid if you tell them you were doing 90mph on a motorway but if you ploughed into a stationary car at 90 everybody would think you should be taken off the road..

Does that mean you should be automatically banned for doing 90 because other people have had fatal accidents at that speed?
While drink driving is different, I think an uneventful drive home after a few drinks should be treated with more leniency than if you kill someone while doing the same thing..

This is a grey area though and why we have laws.

If I fired a loaded machine gun in public and didn't hit anyone then should I go to prison? Obviously if I did hit people then that's different right?

[All that jazz]

Shuvi McTupya said:

A friend of mine (female) made a silly mistake a few months ago and decided to drive home after a skinful. It's a Small village and the kind of road you would not normally see any one else at night but that is obviously no defense.

Long story short, someone reported her and the police went to her house where upon her son let them in and they got her out of bed and arrested her.

She was recorded as being three times over. First time offence.

She is a working mum and currently commutes about 25 miles cross country. A ban is obviously on the cards , which is going to be a massive inconvenience , given the rural location but does anybody think that any judge might give her a custodial sentence?

She does have a lawyer but from what I am hearing he doesn't seem to be offering much in the way of advice apart from plead guilty or you may go to jail.
I keep thinking that the only witness would not actually be able to pick her out of a line up, so there really isn't much of a case but she is not denying it.

Should a decent lawyer try and defend the case, or just roll over to avoid the possible prison outcome if found guilty?

"oh, hello officer, can I help you? ...... no, no, I have absolutely no recollection of said incident, in fact I've been at home all day ...... is there anything else I can help you with officer? ..... no? okay, good night then."

Drama over.

[baldy1926]

There must be more to this than the op has said.
There is no way a police cell would be clogged from Friday to Monday with a straight forward D/D.
You would need some real good reasons to justify to keep her in. Previous offences, several fail to appears etc.
There is more than we are being told.

[Monkeylegend]

Shuvi McTupya said:

I don't think I have given enough information for this thread to be useful for the prosecution, have I?

Well you have said she had a skinfull and decided to drive home, and she was subsequently 3 times over the drink drive limit.

On that basis alone she probably deserves a ban.

[Eclassy]

Derek Smith said:

Well one positive for the woman: she has a free choice of defence as what really happened hasn't been put on a public forum for the police to check on.

I'm sorry for her problem with regards her domestic situation, but she knew what she was doing and took the risk. I feel that a 12-month ban is what she deserves as a minimum.

But I have been told off several times for posting 'rubbish' like this. No one in authority has ever browsed an online forum to gather evidence to use against a suspect (so said our resident BiBs)

[Mk3Spitfire]

Eclassy said:

But I have been told off several times for posting rubbish.

Yes. Yes you have.

[Cat]

Eclassy said:

Cat said:

Wrong

Please educate me. I believe without a search warrant an officer can not enter your place of dwelling unless using their power of entry. I dont think the powers of entry would apply here as they are merely carrying out an investigation of an allegation.

The powers of entry as per PACE and the RTA don't apply in Scotland. However the Lord Advocate's guidelines in relation to drink driving state that entry can be made, by force if necessary, if there had been an accident, whether or not the officers are in hot pursuit. There is case law in relation to drink driving to the effect that an accident doesn't have to involve damage/injury and simply needs to be a untoward occurrence e.g. swerving across the road, therefore depending on exactly what the witness who reported the incident stated to the Police there may have been a power of entry.

Eclassy said:

cat said:

Wrong again. If you've been required to provide a specimen of breath you can't refuse pending the arrival of a solicitor. Similarly if required under s172 you can't decline to answer pending legal advice.

I didnt say dont provide a specimen. Once they have gained entry then provide a specimen but you do not have to/should not answer any questions until you have had legal advice (especially if you have been drinking). What does s172 have to do with the scenario as posted by the OP? I believe it wasn't even her car. Can an s172 to identify a driver be made orally? It wouldnt have applied to her in this case anyway as she wasnt the owner of the car and would have been required to identify the driver.

You almost certainly won't be getting questioned so the advice to say nothing is irrelevant. Of course a s172 requirement can be made orally, it is a regular occurrence in cases such as this in Scotland where there is only one witness speaking to someone driving a car. What makes you think that because she isn't the owner of the car a requirement can't be made under s172?

Eclassy said:

Cat said:

Presumably because she blew over 3 times the limit and the Lord Adovocate's guidelines state that in such cases they should be kept in custody to appear at court the next lawful day.

Damn! So anyone caught well over the limit tomorrow night will be looking at 4 days in the can! In one of OP's post it looks like they picked her up from the station on Monday. Maybe it was from the court

Nope, there will be a custody court on Saturday morning.

Cat

[eldar]

Eclassy said:

But I have been told off several times for posting 'rubbish' like this. No one in authority has ever browsed an online forum to gather evidence to use against a suspect (so said our resident BiBs)

There is a thread here which indicated it has happened at least once, PH and other sites. Prison diary, I think?

[Shuvi McTupya]

Monkeylegend said:

Well you have said she had a skinfull and decided to drive home, and she was subsequently 3 times over the drink drive limit.

On that basis alone she probably deserves a ban.

Yes, but I have given no information with which she could be identified!

Edited by Shuvi McTupya on Tuesday 23 December 23:42

[Eclassy]

@ Cat

I was refering to powers under PACE. Didnt realise it worked differently in Scotland. So basically someone can call the police and claim they saw a driver swerve dangerously 24 hours earlier and the policr can turn up and force entry into the drivers house? That would be open to abuse methinks.

The keeper of the vehicle has a legal obligation, under Section 172 of the Road Traffic Act, to provide the name of the person who was driving their vehicle at the time of the alleged motoring offence. According to OP she doesnt own the car she was alleged to have been driving. I believe there is no legal obligation for her to identify who was driving the car.

[Cat]

Eclassy said:

@ Cat

I was refering to powers under PACE. Didnt realise it worked differently in Scotland. So basically someone can call the police and claim they saw a driver swerve dangerously 24 hours earlier and the policr can turn up and force entry into the drivers house? That would be open to abuse methinks.

Of course if you make up an extreme example you could portray it as open to abuse. As with similar powers ultimately it would be be for the court to decide if the power was used in an appropriate and reasonable manner taking all of the circumstances into consideration.

Eclassy said:

The keeper of the vehicle has a legal obligation, under Section 172 of the Road Traffic Act, to provide the name of the person who was driving their vehicle at the time of the alleged motoring offence. According to OP she doesnt own the car she was alleged to have been driving. I believe there is no legal obligation for her to identify who was driving the car.

You believe wrong - s172(2)(b) places a requirement on a person other than the keeper of the vehicle to, if required, give any information which it is in their power to give and may lead to identification of the driver.

Cat