Scenario about drink driving
Discussion
I must stress this is not about me! Just a hypothetical story we were discussing yesterday.
A bloke, driving one night about 2AM - hits a small rock in the road from a Cornish hedge, and ends up crashing into the hedge on the opposite side of the road. Oldish car, with no airbags, and bangs his head on the steering wheel.
He gets out of the car, feels wobbly and dazed, makes an assessment that the car is safely off the road. Locks it, and walks the five minutes to his house. Gets home, still feeling shaken and dazed, decides a brandy or three is required to calm him. He decides to get the car sorted in the morning. No-one else involved, no-one injured.
In the meantime, a member of the public has driven past the accident site, sees the crashed car still has lights on. As no driver is around, phones the police and reports.
Police come, trace the car and visit driver at his house. They turn up approx. two hours after the incident, at which time driver has had a few measures of brandy, and just gone to bed. Police enter house, breathalyse driver, and as he is over the limit, arrest him. Held in cells over night, released on bail in the morning. Driver has insisted all they way through he was not drinking prior to the incident.
From the initial breath test, what is the correct procedure? Blood test? Second breath test? How can they assure he was over the limit at time of incident? Would there be a case against the driver?
Thoughts appreciated!
A bloke, driving one night about 2AM - hits a small rock in the road from a Cornish hedge, and ends up crashing into the hedge on the opposite side of the road. Oldish car, with no airbags, and bangs his head on the steering wheel.
He gets out of the car, feels wobbly and dazed, makes an assessment that the car is safely off the road. Locks it, and walks the five minutes to his house. Gets home, still feeling shaken and dazed, decides a brandy or three is required to calm him. He decides to get the car sorted in the morning. No-one else involved, no-one injured.
In the meantime, a member of the public has driven past the accident site, sees the crashed car still has lights on. As no driver is around, phones the police and reports.
Police come, trace the car and visit driver at his house. They turn up approx. two hours after the incident, at which time driver has had a few measures of brandy, and just gone to bed. Police enter house, breathalyse driver, and as he is over the limit, arrest him. Held in cells over night, released on bail in the morning. Driver has insisted all they way through he was not drinking prior to the incident.
From the initial breath test, what is the correct procedure? Blood test? Second breath test? How can they assure he was over the limit at time of incident? Would there be a case against the driver?
Thoughts appreciated!
Search for "hip flask defence"
I would imagine he was breathalized at the station, then kept in until sober. On interview he would be asked to provide an account of what had happened, ie circumstances before and after collision including any pre/post incident alcohol consumption. A summary of this account along with the readings can be used to complete a back calculation.
I would imagine he was breathalized at the station, then kept in until sober. On interview he would be asked to provide an account of what had happened, ie circumstances before and after collision including any pre/post incident alcohol consumption. A summary of this account along with the readings can be used to complete a back calculation.
PurpleMoonlight said:
Why do you think the driver would be breathalised several hours after the incident?
I don't know. Maybe as he was leathered when they turned up. Would it not be a matter of course as he admitted crashing?speedking31 said:
How do the police know he was the driver?
I would suggest when they pitched up at his house, he told them he had done.Can the second breath test prove when he had been drinking, or do they need to go down trhe blood test route?
mattyn1 said:
Can the second breath test prove when he had been drinking, or do they need to go down trhe blood test route?
Neither a second breath test nor blood test would be taken. Section 15 of the Road Traffic Offenders Act 1988 states that the proportion of alcohol in a specimen is to be taken as the amount that was present at the time of the offence unless the accused can prove (on the balance of probabilities) that they consumed alcohol after they stopped driving and that it is that alcohol which has caused them to be over the limit.
In the scenario you describe it would be for the driver to prove they weren't over the limit at the time of the accident.
Cat
Cat said:
Neither a second breath test nor blood test would be taken.
Section 15 of the Road Traffic Offenders Act 1988 states that the proportion of alcohol in a specimen is to be taken as the amount that was present at the time of the offence unless the accused can prove (on the balance of probabilities) that they consumed alcohol after they stopped driving and that it is that alcohol which has caused them to be over the limit.
In the scenario you describe it would be for the driver to prove they weren't over the limit at the time of the accident.
Cat
Thank you for that. Nightmare.Section 15 of the Road Traffic Offenders Act 1988 states that the proportion of alcohol in a specimen is to be taken as the amount that was present at the time of the offence unless the accused can prove (on the balance of probabilities) that they consumed alcohol after they stopped driving and that it is that alcohol which has caused them to be over the limit.
In the scenario you describe it would be for the driver to prove they weren't over the limit at the time of the accident.
Cat
How do the police gain access to his home? No warrant? Does the driver have to provide a specimen of breath in this situation? He has not be caught driving or attempting to drive, don't think they can do anything other than to check on his safety, the police do have a responsibility to protect a person but not arrest without sufficient evidence. Jurisdiction in this country work on an innocent until proven guilty policy.
Danattheopticians said:
How do the police gain access to his home? No warrant? Does the driver have to provide a specimen of breath in this situation? He has not be caught driving or attempting to drive, don't think they can do anything other than to check on his safety, the police do have a responsibility to protect a person but not arrest without sufficient evidence. Jurisdiction in this country work on an innocent until proven guilty policy.
The question isn't 'How do they gain access?' (That can range legally, depending on the circumstance, from being let in, entering without forcing entry, or entering forcing entry). The question is 'How did they gain access in this case?'
I always thought that providing the driver had the opportunity to drink between the accident and the test the hip flask defence was sufficient. Reversing the burden of proof sounds bit harsh.
Suppose the driver was below the drink drive limit when tested, would he still have to prove he wasn't above the limit at the time of the accident and that it wasn't just that the breath alcohol had declined overnight? What about a driver who drove the night before without having an accident but was over the drink drive limit the morning after?
Suppose the driver was below the drink drive limit when tested, would he still have to prove he wasn't above the limit at the time of the accident and that it wasn't just that the breath alcohol had declined overnight? What about a driver who drove the night before without having an accident but was over the drink drive limit the morning after?
Danattheopticians said:
How do the police gain access to his home? No warrant? Does the driver have to provide a specimen of breath in this situation? He has not be caught driving or attempting to drive, don't think they can do anything other than to check on his safety, the police do have a responsibility to protect a person but not arrest without sufficient evidence. Jurisdiction in this country work on an innocent until proven guilty policy.
In E&W there is a power of entry, using force if necessary, following an accident where is reasonable suspicion that someone was injured (Section 6E RTA). In Scotland there is a power of entry following any accident or if a police officer is in hot pursuit of the driver (Lord Advocate's guidance based on case law). The power to require a specimen of breath following an accident requires a constable to reasonably believe the person was driving at time - they don't need to have been found driving or attempting to drive. If a court is satisfied that the reasonable belief existed then the requirement to provide would be legal.
Cat
mattyn1 said:
vonhosen said:
The question is 'How did they gain access in this case?'
Someone I know had about 3/4 pints and left the pub, reversing in the car park he clipped a car then got out to look, there was no damage. Someone came over saying you must leave a note, he said no chance as there is no damage, he then drove home.
He got home and just 5 mins later his mum shouts up the stairs the police are here and want to talk to you, he goes to the front door with a bottle of vodka in his hand. The police arrest him for drink driving.
In court there was no evidence of him drink driving as he was at home for 5 mins drinking vodka before the police got there. The judge told off the prosecution for bringing it to court and apologized to him for wasting his time.
He got home and just 5 mins later his mum shouts up the stairs the police are here and want to talk to you, he goes to the front door with a bottle of vodka in his hand. The police arrest him for drink driving.
In court there was no evidence of him drink driving as he was at home for 5 mins drinking vodka before the police got there. The judge told off the prosecution for bringing it to court and apologized to him for wasting his time.
PAULJ5555 said:
Someone I know had about 3/4 pints and left the pub, reversing in the car park he clipped a car then got out to look, there was no damage. Someone came over saying you must leave a note, he said no chance as there is no damage, he then drove home.
He got home and just 5 mins later his mum shouts up the stairs the police are here and want to talk to you, he goes to the front door with a bottle of vodka in his hand. The police arrest him for drink driving.
In court there was no evidence of him drink driving as he was at home for 5 mins drinking vodka before the police got there. The judge told off the prosecution for bringing it to court and apologized to him for wasting his time.
ExactlyHe got home and just 5 mins later his mum shouts up the stairs the police are here and want to talk to you, he goes to the front door with a bottle of vodka in his hand. The police arrest him for drink driving.
In court there was no evidence of him drink driving as he was at home for 5 mins drinking vodka before the police got there. The judge told off the prosecution for bringing it to court and apologized to him for wasting his time.
This happened to me: I was driving spiritedly (at 60 mph of course) home and a hot day, and hit some dust on the road an lost control and ended up in a hedge facing the wrong way, no injuries! As I was assessing the damage and getting over the shock a police officer approached the scene, I was asked if there were any injuries, to which we said "no" She then drove on. At no point was I asked to explain what had happened, investigated for speed on dangerous driving or was I breathalysed. I thought at least one of those things may have happened, but it was just an accident, as was the one in the OP's scenario. Hence why I believe all a police officer should do is check if the driver was injured.
Danattheopticians said:
PAULJ5555 said:
Someone I know had about 3/4 pints and left the pub, reversing in the car park he clipped a car then got out to look, there was no damage. Someone came over saying you must leave a note, he said no chance as there is no damage, he then drove home.
He got home and just 5 mins later his mum shouts up the stairs the police are here and want to talk to you, he goes to the front door with a bottle of vodka in his hand. The police arrest him for drink driving.
In court there was no evidence of him drink driving as he was at home for 5 mins drinking vodka before the police got there. The judge told off the prosecution for bringing it to court and apologized to him for wasting his time.
ExactlyHe got home and just 5 mins later his mum shouts up the stairs the police are here and want to talk to you, he goes to the front door with a bottle of vodka in his hand. The police arrest him for drink driving.
In court there was no evidence of him drink driving as he was at home for 5 mins drinking vodka before the police got there. The judge told off the prosecution for bringing it to court and apologized to him for wasting his time.
This happened to me: I was driving spiritedly (at 60 mph of course) home and a hot day, and hit some dust on the road an lost control and ended up in a hedge facing the wrong way, no injuries! As I was assessing the damage and getting over the shock a police officer approached the scene, I was asked if there were any injuries, to which we said "no" She then drove on. At no point was I asked to explain what had happened, investigated for speed on dangerous driving or was I breathalysed. I thought at least one of those things may have happened, but it was just an accident, as was the one in the OP's scenario. Hence why I believe all a police officer should do is check if the driver was injured.
She legally could have asked what happened, investigated & given a breath test.
Edited by vonhosen on Friday 9th September 12:39
Danattheopticians said:
Sorry for having an opinion based on actually living a similar scenario! The police were at the scene of my accident and nothing happened to me, the police were not at the scene of the OP's fairy-tale scenario. So I'm just giving my thoughts.
But the point is others in a situation similar to yours are investigated, breathalysed etc. The choice of how it's going to be dealt with (legally) is theirs, not the driver's.Yes it is, the OP asked for thoughts, thoughts based on experience hold more water than made up ones. I'm just saying this in reality is what happened to me. Then based on that, gives me enough reason to think that is all that a police officer would do, based on my experience and the outcome of Paul555 REAL scenario!
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