Can this be right?
Discussion
Rang a friend of mine today only to learn that he'd been done for DD. OK, he does drink a bit but anyway, this is the tale as he told it.
He was visiting a hospital for some reason and on leaving, a nurse telephones the police as he 'smelled of drink'. He says that he'd been working on his car engine and the smell was oil. He swears he hadn't been drinking.
Anyway, two hours later the police knock on his door and he opens it. He's holding a bottle of port and has, yes, been drinking since he got home. They beathalyse him and, lo and behold, he's over the limit. They say they're sorry but they're going to have to arrest him. He's taken to the cells and spends an afternoon there because they don't want to interview him until he's a bit more sober.
He's been charged with DD, failing to produce documents (he says he was never asked) and not having tax - yet it's in his car windscreen. The charge sheet says he was arrested in some street he's never heard of, yet he was arrested at home.
His solicitor is telling him to plead guilty (to mitigate the sentence) even though he swears he's innocent.
Thing is - the police have *no evidence* that he was drinking and driving. It's not a crime - yet - to drink at home. My thought was that surely the police have to have evidence - but apparently it's down to him to prove that he was innocent - which is of course impossible.
He MAY have been guilty, he may not, but can they really prosecute someone for DD without evidence?
He was visiting a hospital for some reason and on leaving, a nurse telephones the police as he 'smelled of drink'. He says that he'd been working on his car engine and the smell was oil. He swears he hadn't been drinking.
Anyway, two hours later the police knock on his door and he opens it. He's holding a bottle of port and has, yes, been drinking since he got home. They beathalyse him and, lo and behold, he's over the limit. They say they're sorry but they're going to have to arrest him. He's taken to the cells and spends an afternoon there because they don't want to interview him until he's a bit more sober.
He's been charged with DD, failing to produce documents (he says he was never asked) and not having tax - yet it's in his car windscreen. The charge sheet says he was arrested in some street he's never heard of, yet he was arrested at home.
His solicitor is telling him to plead guilty (to mitigate the sentence) even though he swears he's innocent.
Thing is - the police have *no evidence* that he was drinking and driving. It's not a crime - yet - to drink at home. My thought was that surely the police have to have evidence - but apparently it's down to him to prove that he was innocent - which is of course impossible.
He MAY have been guilty, he may not, but can they really prosecute someone for DD without evidence?
turbobloke said:
AFAIK, and BiB will be along soon, if the police didn't ask whether he'd been drinking immediately before the breath test, that was an error in police procedure.
Yes, they arrived in his house and said 'Have you been drinking?'. As he was standing there with a bottle of port, he quite openly said 'yes'.
Simpo Two said:Then I can only repeat, to the best of my knowledge the breath test was not conducted properly. Sounds like a good brief could drive a coach and horses through this one, but ianal.
AFAIK, and BiB will be along soon, if the police didn't ask whether he'd been drinking immediately before the breath test, that was an error in police procedure.
Yes, they arrived in his house and said 'Have you been drinking?'. As he was standing there with a bottle of port, he quite openly said 'yes'.
BiB, where are you?!
I am thinking that two hours is far too long for anything to stick. Also if somebody is claming to have drunk after driving they are supposed to record the amounts drunk and work back the calculation to find what the reading was prior to the driving and seize empty bottles as evidence.
Pleading guilty if he is innocent sounds a bad idea - IMO he should sack his solicitor and find somebody who is willing to work for their fee.
Gareth
Pleading guilty if he is innocent sounds a bad idea - IMO he should sack his solicitor and find somebody who is willing to work for their fee.
Gareth
g_attrill said:
Also if somebody is claming to have drunk after driving they are supposed to record the amounts drunk and work back the calculation to find what the reading was prior to the driving and seize empty bottles as evidence.
He did say they've taken his height and weight to work it back. However, if he'd just had a mouthful of port, surely it would hit the MAX limit regardless of how much was in his bloodstream? It's not like a morning after thing.
There's also a police car parked near his house - which seems to be a complete waste of resources as he's hardly likely to take any chances now. Thinking about it - maybe that's almost an admission that they don't have enough evidence and want to nail him properly...?
Simpo,
your friend will have had to go on an EBM (Evidential Breath Machine) at the Police Station. This is a much more accurate device to the hand-held ESD (Electronic Screening Device) which is used at the roadside (or front door in this case!). NO charge of DD would arise JUST from the ESD. The result of the ESD would justify arrest, but NO charge would come without the use of EBM procedure. If he couldn't, or wouldn't, provide a sample for the EBM then a charge of 'Failing To Provide' would follow.
How well do you trust your friend? In my experience, people would rather admit to murder than drink drive. He might be bending the truth. If not, and he's being honest with you, there's obviously crossed wires there. The interview would HAVE to be needed because no Officer saw him driving the vehicle. I find it hard to believe that any half decent solicitor would advise him to plead guilty. Where's the evidence?! Two hours is not so long as to make the arrest illegal or unjustified, but the whole process would have become much more complicated as a result of this. He certainly wouldn't have been charged that same day, and he must have been bailed, both for analysis of how much much he said he drank, and for CPS advice. If you can badger him for a bit more info it may become a bit clearer. Keep us updated!
HW
your friend will have had to go on an EBM (Evidential Breath Machine) at the Police Station. This is a much more accurate device to the hand-held ESD (Electronic Screening Device) which is used at the roadside (or front door in this case!). NO charge of DD would arise JUST from the ESD. The result of the ESD would justify arrest, but NO charge would come without the use of EBM procedure. If he couldn't, or wouldn't, provide a sample for the EBM then a charge of 'Failing To Provide' would follow.
How well do you trust your friend? In my experience, people would rather admit to murder than drink drive. He might be bending the truth. If not, and he's being honest with you, there's obviously crossed wires there. The interview would HAVE to be needed because no Officer saw him driving the vehicle. I find it hard to believe that any half decent solicitor would advise him to plead guilty. Where's the evidence?! Two hours is not so long as to make the arrest illegal or unjustified, but the whole process would have become much more complicated as a result of this. He certainly wouldn't have been charged that same day, and he must have been bailed, both for analysis of how much much he said he drank, and for CPS advice. If you can badger him for a bit more info it may become a bit clearer. Keep us updated!
HW
No, you're supposed to give a twenty minute period of 'no drink', BUT i think this is BiB practice rather than THE law. I'm happy to be told otherwise, though i'm pretty sure that's right(don't have law books at home i'm not sad!! 
).
As i said though, the ESD is only designed to give an indication. I've had plenty of DD arrests at the roadside blow under on the EBM once back at the nick....
). As i said though, the ESD is only designed to give an indication. I've had plenty of DD arrests at the roadside blow under on the EBM once back at the nick....
Simpo Two said:
He was visiting a hospital for some reason and on leaving, a nurse telephones the police as he 'smelled of drink'. He says that he'd been working on his car engine and the smell was oil. He swears he hadn't been drinking.
This is a fishy one. Why would a nurse phone the police if someone smelt of drink? She must have seen him drive off too, maybe not too competently, I guess?
Simpo Two said:
He's been charged with DD, failing to produce documents (he says he was never asked) and not having tax - yet it's in his car windscreen. The charge sheet says he was arrested in some street he's never heard of, yet he was arrested at home.
Is he a wanted man? What with this and a plod stationed near his house.
Hi HW, many thanks for your straightforward and clear explanation.
In a normal world one would simply e-mail him a link and he would see your advice. However he's a technophobe and doesn't have e-mail/internet so I will have to print it off and post it to him!!
No idea - perhaps they think there's no smoke without fire and there's no other crime currently going on in his part of the world (deepest countryside).
I just rang up for a natter yesterday and was on the phone for over an hour. He was crosser than a box of frogs and had some difficulty giving me all the info in the correct order. There may well be bits missing that he forgot or doesn't want to say, I don't know. He's been to court once apparently and has to go again. He's a very autocratic bloke with a hot temper so I hope he doesn't go beserk. Alternatively he might just roll over for an easier life.
As you say, he might be guilty and is in denial about it - but the nub of thing is prosecution without the appropriate evidence on a very serious charge.
Thanks all and especially HW.
In a normal world one would simply e-mail him a link and he would see your advice. However he's a technophobe and doesn't have e-mail/internet so I will have to print it off and post it to him!!
deeps said:
Is he a wanted man? What with this and a plod stationed near his house.
No idea - perhaps they think there's no smoke without fire and there's no other crime currently going on in his part of the world (deepest countryside).
I just rang up for a natter yesterday and was on the phone for over an hour. He was crosser than a box of frogs and had some difficulty giving me all the info in the correct order. There may well be bits missing that he forgot or doesn't want to say, I don't know. He's been to court once apparently and has to go again. He's a very autocratic bloke with a hot temper so I hope he doesn't go beserk. Alternatively he might just roll over for an easier life.
As you say, he might be guilty and is in denial about it - but the nub of thing is prosecution without the appropriate evidence on a very serious charge.
Thanks all and especially HW.
deeps said:
He was visiting a hospital for some reason and on leaving, a nurse telephones the police as he 'smelled of drink'. He says that he'd been working on his car engine and the smell was oil. He swears he hadn't been drinking.
This is a fishy one. Why would a nurse phone the police if someone smelt of drink? She must have seen him drive off too, maybe not too competently, I guess?
Most hospitals are pretty big - did she really trail him through the hospital and then the car park and note his reg number? If not, how would she know his name and address details?
A friend of ours got done in similar circumstances (reported by a taxi driver, Police turned up 30 mins later). She insisted she'd had a drink at home, but the Police insisted she hadn't said that immediately. She's a pillar of the local community, and appealled twice, used a top QC etc, but still couldn't get the conviction overturned.
>> Edited by deva link on Saturday 8th April 11:34
If this is all correct, then I feel very sorry for your friend and the BiB responsible should be hauled over the coals. But I'm afraid I agree with others that this all sounds rather unlikely. Firstly, what evidence do the BiB have that he was where they claim ? I mean, he's never even heard of the street ? I also agree that it sounds unlikely the nurse would follow him to the car park etc. And then there's the fact that the BiB left him to sober up before an interview, suggesting he was well away when they called. I think your friend is either stringing a line to cover his crime, or was too pissed to remember exactly what happened. Perhaps he was in the street he's never heard of and can't remember how he got there ? 
Sounds very much to me like he was caught DD and is now making an excuse up rather than admit to friends and family what really happened..
I used to work with 3 or 4 people who had been banned due to DD.
Only one of them would admit it was a fair cop, the other 3 all had highly unlikely storys to shift blame onto somebody else.
I dont think the police would randomly turn up at your house and try to fit you up for DD just because a random nurse tipped them off that you might be drunk.
I used to work with 3 or 4 people who had been banned due to DD.
Only one of them would admit it was a fair cop, the other 3 all had highly unlikely storys to shift blame onto somebody else.
I dont think the police would randomly turn up at your house and try to fit you up for DD just because a random nurse tipped them off that you might be drunk.
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